1. | Offers, Sales and Resales of Notes. |
1.1 | While (i) the Issuer has and shall have no obligation to sell the Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuer, the parties hereto agree that in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance on the representations, warranties, covenants and agreements of the Issuer contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein and sold by the Issuer in reliance on the representations, warranties, covenants and agreements of the Dealer contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein. |
1.2 | So long as this Agreement shall remain in effect, and in addition to the limitations contained in Section 1.7 hereof, the Issuer shall not, without the consent of the Dealer (which consent shall not be unreasonably withheld, conditioned or delayed to the extent that the Issuer determines that such offer, solicitation, acceptance of an offer or sale will not adversely affect the entitlement of the Notes to the exemption provided by Section 4(a)(2) of the Securities Act and provides an opinion of counsel to that effect), offer, solicit or accept offers to purchase, or sell, any Notes except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements which contain provisions substantially identical to those contained in Section 1 of this Agreement, of which the Issuer hereby undertakes to provide the Dealer prompt notice or (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer which contain provisions substantially identical to Section 1 of this Agreement contemporaneously herewith. In no event shall the Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly on its own behalf in transactions with persons other than broker-dealers as specifically permitted in this Section 1.2. |
1.3 | The Notes shall be in a minimum denomination of $250,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not exceeding 397 days from the date of issuance and may have such terms as are specified in Exhibit C hereto, the Private Placement Memorandum, a pricing supplement, or as otherwise agreed upon by the applicable purchaser and the Issuer. The Notes shall not contain any provision for extension, renewal or automatic “rollover.” |
1.4 | The authentication and issuance of, and payment for, the Notes shall be effected in accordance with the Issuing and Paying Agent Agreement, and the Notes shall be either individual physical certificates or book-entry notes evidenced by one or more master notes (each, a “Master Note”) registered in the name of The Depository Trust Company (“DTC”) or its nominee, in the form annexed to the Issuing and Paying Agent Agreement. |
1.5 | If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate or interest rate index and margin (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer’s services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agent Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuing and Paying Agent, for the account of the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a purchaser shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such |
1.6 | The Dealer and the Issuer hereby establish and agree to observe the following procedures in connection with offers, sales and subsequent resales or other transfers of the Notes: |
(a) | Offers and sales of the Notes by or through the Dealer shall be made only to: (i) investors reasonably believed by the Dealer to be Qualified Institutional Buyers or Institutional Accredited Investors and (ii) non-bank fiduciaries or agents that will be purchasing Notes for one or more accounts, each of which is reasonably believed by the Dealer to be an Institutional Accredited Investor. |
(b) | Resales and other transfers of the Notes by the holders thereof shall be made only in accordance with the restrictions in the legend described in clause (e) below. |
(c) | No general solicitation or general advertising within the meaning of Rule 502 under the Securities Act shall be used in connection with the offering of the Notes. Without limiting the generality of the foregoing, without the prior written approval of the other, neither the Dealer nor the Issuer shall issue any press release or place or publish any “tombstone” or other advertisement relating to the Notes or the offer or sale thereof. To the extent permitted by applicable securities laws, the Issuer shall (i) omit the name of the Dealer from any publicly available filing by the Issuer that makes reference to the Notes, the offer or sale of the Notes or this Agreement, (ii) not include a copy of this Agreement in any such filing or as an exhibit thereto (unless the Issuer determines that filing such a copy is required), and (iii) shall redact the Dealer’s name and any contact or other information that could identify the Dealer from any agreement or other information included in such filing. Notwithstanding the foregoing, (i) any publication by the Issuer of a notice in accordance with Rule 135c under the Securities Act shall not be deemed to constitute a general solicitation or general advertising hereunder and shall not require prior written approval of the dealer and (ii) the Issuer shall be permitted to make such filings with the SEC that the Issuer reasonably determines are required to comply with Section 13 or 15(d) of the Exchange Act. For the avoidance of doubt, the Issuer shall not post the Private Placement Memorandum on a website without the consent of the Dealer and each other dealer or placement agent, if any, for the Notes. |
(d) | No sale of Notes to any one purchaser shall be for less than $250,000 principal or face amount, and no Note shall be issued in a smaller principal or face amount. If the purchaser is a non-bank fiduciary or agent acting on behalf of others, each person for whom such purchaser is acting must purchase at least $250,000 principal or face amount of Notes. |
(e) | Offers and sales of the Notes shall be subject to the restrictions described in the legend appearing on Exhibit A hereto. A legend substantially to the effect of such Exhibit A shall appear as part of the Private Placement Memorandum used in connection with offers and sales of Notes hereunder, as well as on each individual certificate representing a Note and each Master Note representing book-entry Notes offered and sold pursuant to this Agreement. |
(f) | The Dealer shall furnish or shall have furnished to each purchaser of Notes for which it has acted as the Dealer, at or prior to the sale of such Notes, a copy of the then-current Private Placement Memorandum unless such purchaser has previously received a copy of the Private Placement Memorandum as then in effect. The Private Placement Memorandum shall expressly state that any person to whom Notes are offered shall have an opportunity to ask questions of, and receive information from, the Issuer and the Dealer and shall provide the addresses and telephone numbers for obtaining further information regarding the Issuer. |
(g) | The Issuer agrees, for the benefit of the Dealer and each of the holders and prospective purchasers from time to time of the Notes that, if at any time the Issuer shall not be subject to Section 13 or 15(d) of the Exchange Act, the Issuer will furnish, upon request and at its expense, to the Dealer and to holders and prospective purchasers of Notes information required by Rule 144A(d)(4)(i) in compliance with Rule 144A(d). |
(h) | In the event that any Note offered or to be offered by the Dealer would be ineligible for resale under Rule 144A, the Issuer shall promptly notify the Dealer (by telephone, confirmed in writing) of such fact and shall promptly prepare and deliver to the Dealer an amendment or supplement to the Private Placement Memorandum describing the Notes that are ineligible, the reason for such ineligibility and any other relevant information relating thereto. |
(i) | The Issuer represents that it is not currently issuing commercial paper in the United States market in reliance upon the exemption provided by Section 3(a)(3) of the Securities Act. The Issuer agrees that, if it shall issue commercial paper after the date hereof in reliance upon such exemption (a) the proceeds from the sale of the Notes will be segregated from the proceeds of the sale of any such commercial paper by being placed in a separate account; (b) the Issuer will institute appropriate corporate procedures to ensure that the offers and sales of notes issued by the Issuer pursuant to the Section 3(a)(3) exemption are not integrated with offerings and sales of Notes hereunder; and (c) the Issuer will comply with each of the requirements of Section 3(a)(3) of the Securities Act in selling commercial paper or other short-term debt securities other than the Notes in the United States. |
1.7 | The Issuer hereby represents and warrants to the Dealer, in connection with offers, sales and resales of Notes, as follows: |
(a) | The Issuer hereby confirms to the Dealer that (except as permitted by Section 1.6(i)) within the preceding six months neither the Issuer nor any person other than the Dealer or the other dealers referred to in Section 1.2 hereof acting on behalf of the Issuer has offered or sold any Notes, or any substantially similar security of the Issuer (including, without limitation, medium-term notes issued by the Issuer), to, or solicited offers to buy any such security from, any person other than the Dealer or the other dealers referred to in Section 1.2 hereof. The Issuer also agrees that (except as permitted by Section 1.6(i)), as long as the Notes are being offered for sale by the Dealer and the other dealers referred to in Section 1.2 hereof as contemplated hereby and until at least six months after the offer of Notes hereunder has been terminated, neither the Issuer nor any person other than the Dealer or the other dealers referred to in Section 1.2 hereof (except as contemplated by Section 1.2 hereof) will offer the Notes or any substantially similar security of the Issuer for sale to, or solicit offers to buy any such security from, any person other than the Dealer or the other dealers referred to in Section 1.2 hereof, it being understood that such agreement is made with a view to bringing the offer and sale of the Notes within the exemption provided by Section 4(a)(2) of the Securities Act and shall survive any termination of this Agreement. The Issuer hereby represents and warrants that it has not taken or omitted to take, and will not take or omit to take, any action that would cause the offering and sale of Notes hereunder to be integrated with any other offering of securities, whether such offering is made by the Issuer or some other party or parties, under circumstances other than those that would not cause the offering and sale of the Notes by the Issuer to fail to be exempt from registration under Section 4(a)(2) of the Securities Act. |
(b) | The Issuer represents and agrees that the proceeds of the sale of the Notes are not currently contemplated to be used for the purpose of buying, carrying or trading securities within the meaning of Regulation T and the interpretations thereunder by the Board of Governors of the Federal Reserve System. In the event that the Issuer determines to use such proceeds for the purpose of buying, carrying or trading securities, whether in connection with an acquisition of another company or otherwise, the Issuer shall give the Dealer at least three business days’ prior written notice to that effect (but shall not be required to identify or disclose such securities). Thereafter, in the event that the Dealer purchases Notes as principal and does not resell such Notes on the day of such purchase, to the extent necessary to comply with Regulation T and the interpretations thereunder, the Dealer will sell such Notes either (i) only to offerees it reasonably believes to be Qualified Institutional Buyers or to Qualified Institutional Buyers it reasonably believes are acting for other Qualified Institutional Buyers, in each case in accordance with Rule 144A or (ii) in a manner which would not cause a violation of Regulation T and the interpretations thereunder. |
2. | Representations and Warranties of the Issuer. |
2.1 | The Issuer and each Guarantor is a corporation, limited liability company or partnership duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation and has all the requisite power and authority to execute, deliver and perform its obligations under each Program Document to which it is party. |
2.2 | This Agreement and the Issuing and Paying Agent Agreement have been duly authorized, executed and delivered by the Issuer and constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and limitations on rights to indemnity and contribution imposed by applicable law. |
2.3 | The Guarantee has been duly authorized, executed and delivered by each Guarantor and constitutes the legal, valid and binding obligations of such Guarantor enforceable against such Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and limitations on rights to indemnity and contribution imposed by applicable law. |
2.4 | The Notes have been duly authorized, and when issued as provided in the Issuing and Paying Agent Agreement, will be duly and validly issued and will constitute legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law). |
2.5 | Assuming compliance by the Dealer with the procedures applicable to it set forth in this Agreement, the offer and sale of the Notes in the manner contemplated hereby do not require registration of the Notes or the Guarantee under the Securities Act, pursuant to the exemption from registration contained in Section 4(a)(2) thereof, and no indenture in respect of the Notes is required to be qualified under the Trust Indenture Act of 1939, as amended. |
2.6 | The Notes will rank at least pari passu with all other unsecured and unsubordinated indebtedness of the Issuer. |
2.7 | Assuming compliance by the Dealer with the procedures applicable to it set forth in this Agreement, no consent or action of, or filing or registration with, any governmental or public regulatory body or authority, including the SEC, is required to authorize, or is otherwise required in connection with the execution, delivery or performance of, this Agreement, the Notes or the Issuing and Paying Agent Agreement, except for the filing by the Issuer of a current report on Form 8-K with the SEC or as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Notes. |
2.8 | Neither the execution and delivery by the Issuer and the Guarantors of each Program Document to which the Issuer or any such Guarantor is a party, nor the issuance of the Notes in accordance with the Issuing and Paying Agent Agreement, nor the fulfillment of or compliance with the terms and provisions hereof or thereof by the Issuer or such Guarantor, will (i) result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Issuer, or (ii) violate or result in a breach or a default under any of the terms of the charter documents or by-laws of the Issuer or such Guarantor, any contract or instrument to which the Issuer or such Guarantor is a party or by which it or its property is bound (including, for the avoidance of doubt, any consent set forth on the attached Schedule B (each, a “Manufacturer Consent,” and collectively, the “Manufacturer Consents”)), or any law or regulation, or any order, writ, injunction or decree of any court or government instrumentality, to which the Issuer or such Guarantor is subject or by which it or its property is bound, which breach or default might have a material adverse effect on the financial condition or operations of, when taken as a whole, the Issuer and the Guarantors, or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement or the ability of any Guarantor to perform its obligations under the Guarantee. |
2.9 | Except as otherwise disclosed in any filings made by the Issuer with the SEC, there is no litigation or governmental proceeding pending, or to the knowledge of the Issuer, threatened, against or affecting the Issuer or any of its Subsidiaries (other than that which is disclosed in the Company Information) which is reasonably likely to result in a material adverse change in the condition (financial or otherwise), operations or business prospects of the Issuer or the ability of the Issuer to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement. |
2.10 | Neither the Issuer nor any Guarantor is an “investment company” within the meaning of the Investment Company Act of 1940, as amended. |
2.11 | Neither the Private Placement Memorandum nor the Company Information contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that the Issuer makes no representation or warranty as to any Dealer Information. |
2.12 | Neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its Subsidiaries (in each case, acting on behalf of the Issuer or any of its Subsidiaries) (i) has used any corporate funds for any contribution, gift, entertainment, bribe, rebate, payoff, influence payment, kickback or other payment of any kind whatsoever in violation of the law applicable to the |
2.13 | The operations of the Issuer and its Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial recordkeeping and reporting requirements, including, without limitation, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable money laundering statutes of jurisdictions where the Issuer and its Subsidiaries conduct business, and the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency where the Issuer or any of its Subsidiaries conduct business (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer, threatened. |
2.14 | Neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its Subsidiaries (i) is currently the subject of any sanctions administered or imposed by the United States (including any administered or enforced by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of State, or the Bureau of Industry and Security of the U.S. Department of Commerce), the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or enforced by Her Majesty’s Treasury) or other relevant sanctions authority (collectively, “Sanctions” and such persons, “Sanctioned Persons”) or (ii) will, directly or indirectly, use the proceeds of the Notes, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person in violation of any Sanctions (x) to fund or facilitate any activities or business of or with any person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (y) in any manner that will result in a violation of any economic Sanctions by any person (including any person participating in the offering of Notes, whether as dealer, advisor, investor or otherwise). |
2.15 | Neither the Issuer nor any of its Subsidiaries nor, to the knowledge of the Issuer, any director, officer, agent or employee of the Issuer or any of its Subsidiaries is a person that is, or is 50% or more owned or otherwise controlled by a person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions (which, as of the date of this Agreement, are Cuba, Iran, North Korea, Sudan, and Syria) (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”). |
2.16 | Except as has been disclosed to the Dealer or is not material to the analysis under any Sanctions, neither the Issuer nor any of its Subsidiaries has engaged in any dealings or transactions with or for the benefit of a Sanctioned Person, or with or in a Sanctioned Country, in the preceding 3 years, nor does the Issuer or any of its Subsidiaries have any plans to increase its dealings or transactions, or commence dealings or transaction, with or for the benefit of Sanctioned Persons, or with or in Sanctioned Countries except to the extent it may become permissible to do so under applicable laws. |
2.17 | Each (a) issuance of Notes by the Issuer hereunder and (b) amendment or supplement of the Private Placement Memorandum shall be deemed a representation and warranty by the Issuer to the Dealer, as of the date thereof, that, both before and after giving effect to such issuance and after giving effect to such amendment or supplement, (i) the representations and warranties given by the Issuer set forth in this Section 2 remain true and correct on and as of such date as if made on and as of such date, (ii) in the case of an issuance of Notes, the Notes being issued on such date have been duly and validly issued and constitute legal, valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (iii) in the case of an issuance of Notes, since the date of the most recent Private Placement Memorandum (as most recently amended or supplemented including, without limitation, by incorporation of Company Information therein), there has been no material adverse change in the financial condition or operations of the Issuer which has not been disclosed to the Dealer in writing or in the |
3. | Covenants and Agreements of Issuer. |
3.1 | The Issuer will give the Dealer prompt notice (but in any event prior to any subsequent issuance of Notes hereunder) of any amendment to, modification of or waiver with respect to, the Notes or the Issuing and Paying Agent Agreement, including a complete copy of any such amendment, modification or waiver. |
3.2 | The Issuer shall, whenever there shall occur (i) any change in the financial condition or operations of the Issuer and its Subsidiaries taken as a whole that would reasonably be expected to have a material adverse effect on the Issuer’s ability to perform its obligations under this Agreement, the Notes or the Issuing and Paying Agent Agreement, or (ii) any change in the financial condition or operations of any Guarantor or Guarantors that would reasonably be expected to have a material adverse effect on the ability of the Guarantors taken as a whole to perform their obligations under the Guarantee, or (iii) any adverse occurrence in relation to the Issuer that would otherwise be material to holders of the Notes or potential holders of the Notes (including any downgrading or receipt of any written notice of (x) intended downgrading or (y) any review for potential adverse change in the rating accorded any of the Issuer’s securities by any nationally recognized statistical rating organization (as such term is defined in Section 3(a)(62) of the Exchange Act) which has published a rating of the Notes), promptly, and in any event prior to any subsequent issuance of Notes hereunder, notify the Dealer of such change or occurrence. |
3.3 | The Issuer shall from time to time furnish to the Dealer such information as the Dealer may reasonably request, including, without limitation, any press releases or material provided by the Issuer to any national securities exchange or rating agency, regarding (i) the Issuer’s operations and financial condition, (ii) the due authorization and execution of the Notes and (iii) the Issuer’s ability to pay the Notes as they mature; provided that the Issuer shall have no obligation to furnish any material non-public information or information it is required to keep confidential or that is otherwise included in Company Information described in clause (i), (ii) or (iii) of the definition thereof. |
3.4 | The Issuer will take all such action as the Dealer may reasonably request to ensure that each offer and each sale of the Notes will comply with any applicable state Blue Sky laws; provided, however, that the Issuer shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified or subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject. |
3.5 | The Issuer will not be in default of any of its obligations hereunder, under the Notes or under the Issuing and Paying Agent Agreement, at any time that any of the Notes are outstanding. |
3.6 | The Issuer shall not issue Notes hereunder until the Dealer shall have received (a) opinions of counsel to the Issuer and each Guarantor, addressed to the Dealer, reasonably satisfactory in form and substance to the Dealer, (b) a copy of the executed Issuing and Paying Agent Agreement as then in effect, (c) a copy of resolutions adopted by the Board of Directors (or similar body in the case of a Guarantor not organized as a corporation) of the Issuer and each Guarantor, reasonably satisfactory in form and substance to the Dealer and certified by the Secretary or similar officer of the Issuer or such Guarantor, as applicable, authorizing execution and delivery by (i) the Issuer of this Agreement, the Issuing and Paying Agent Agreement and the Notes and (ii) such Guarantor of the Guarantee, and consummation by the Issuer and such Guarantor of the transactions contemplated hereby and thereby, (d) a certificate of the secretary, assistant secretary or other designated officer of the Issuer and each Guarantor certifying as to (as applicable) (i) the Issuer’s organizational documents, and attaching true, correct and complete copies thereof and (ii) the incumbency of the officers of (A) the Issuer authorized to execute and deliver this Agreement, the Issuing and Paying Agent Agreement, the Commercial Paper Master Note and to deliver the Notes, and take other action on behalf of the Issuer in connection with the transactions contemplated thereby, and (B) such Guarantor authorized to execute and deliver the Guarantee, and take other action on behalf of such Guarantor in connection with the transactions contemplated thereby, (e) prior to the issuance of any book-entry Notes represented by a master note registered in the name of DTC or its nominee, a copy of the executed Letter of Representations among the Issuer, the Issuing and Paying Agent and DTC and of the executed master note, (f) prior to the issuance of any Notes in physical form, a copy of such form (unless attached to this Agreement or the Issuing and Paying Agent Agreement), (g) confirmation of the then current rating assigned to the Notes by each nationally recognized |
3.7 | The Issuer shall reimburse the Dealer for all of the Dealer’s reasonable out-of-pocket expenses related to this Agreement, including reasonable out-of-pocket expenses incurred in connection with its preparation and negotiation, and the transactions contemplated hereby (including, but not limited to, the printing and distribution of the Private Placement Memorandum), and, if applicable, for the reasonable fees and out-of-pocket expenses of the Dealer’s external counsel (subject to receipt of reasonably satisfactory supporting documentation within 90 days of the incurrence of any such fees and out-of-pocket expenses (it being understood that the submission of an invoice and supporting documentation by the Dealer’s external counsel with respect to the negotiation of this Agreement will be made within 90 days of the conclusion of such negotiation as measured by the satisfaction of all of the conditions to the issuance of Notes set forth in Section 3.6 and not by the dates of the specific services rendered)). |
3.8 | The Issuer shall not file a Form D (as referenced in Rule 503 under the Securities Act) at any time in respect of the offer or sale of the Notes. |
3.9 | The Issuer shall cause each of its Subsidiaries listed on the attached Schedule A (each, a “Guarantor” and collectively, the “Guarantors”) to agree unconditionally and irrevocably to guarantee the Issuer’s performance of its obligations under this Agreement and the payment in full of the principal of and interest (if any) on the Notes, pursuant to a guarantee, dated the date hereof, in the form of Exhibit D hereto (the “Guarantee”). |
3.10 | So long as any Notes are outstanding, the Issuer shall not, nor shall it permit any Guarantor to (a) terminate, revoke or violate the terms of any Manufacturer Consent or amend or modify the terms of any Manufacturer Consent in any manner materially adverse to the interests of the holders of any Notes or any of the other Guarantied Parties or (b) authorize or permit any Manufacturer to amend, modify, terminate, revoke or violate the terms of any Manufacturer Consent or to amend or modify the terms of any Manufacturer Consent in any manner materially adverse to the interests of any holder of Notes or any of the other Guarantied Parties. |
3.11 | The Issuer shall provide prompt written notice to the Dealer (but in any event prior to any subsequent issuance of Notes hereunder) of any amendment, modification, termination or revocation of any Manufacturer Consent that would reasonably be expected to have a material adverse effect on (i) the financial condition of the Issuer and the Guarantors, taken as a whole, or (ii) the ability of the Issuer and the Guarantors, taken as a whole, to perform their obligations under this Agreement, the Issuing and Paying Agent Agreement, the Notes or the Guarantee, as applicable. For the avoidance of doubt, any amendment or modification to any Manufacturer Consent that solely increases the aggregate principal amount of indebtedness contemplated thereunder shall be deemed to not have a material adverse effect on the Notes. |
3.12 | The Issuer shall not, nor shall it permit any Guarantor to, obtain consent from any Manufacturer to guarantee any debt obligation of the Issuer on terms more favorable to the Manufacturer than that permitted under the corresponding Manufacturer Consent, unless such Manufacturer Consent is amended to permit such more favorable terms and such more favorable terms are reflected or incorporated in the Guarantee. |
3.13 | The Issuer shall not, nor shall it permit any Subsidiary to, sell, transfer or dispose of the capital stock of any Subsidiary if such sale, transfer or disposition would, individually or together with any such sales, transfers or dispositions made by another Subsidiary or other Subsidiaries after the date hereof, (i) constitute a sale, transfer or disposition of all or a majority of the assets of the Issuer and its Subsidiaries (taken as a whole), or (ii) be reasonably likely to have a material adverse effect on the ability of the Issuer and the Guarantors, taken as a whole, to perform their obligations under this Agreement, the Issuing and Paying Agent Agreement, the Notes or the Guarantee, as applicable. |
3.14 | The Issuer, on behalf of the Guarantied Parties, shall furnish such notices as are required to be furnished under the Manufacturer Consents upon being made aware of facts and circumstances requiring delivery of such notice. |
4. | Disclosure. |
4.1 | The Private Placement Memorandum and its contents (other than the Dealer Information) shall be the sole responsibility of the Issuer. The Private Placement Memorandum shall contain a statement expressly offering an opportunity for each prospective purchaser to ask questions of, and receive answers from, the Issuer concerning the offering of Notes and to obtain relevant additional information which the Issuer possesses or can acquire without unreasonable effort or expense. |
4.2 | The Issuer agrees to promptly furnish Company Information to the Dealer upon or promptly following the time it becomes publicly available, provided that any such Company Information described in clause (i), (ii) or (iii) of the definition thereof shall be deemed furnished and delivered to the Dealer at the time it is publicly available in the Issuer’s filings with the SEC. |
4.3 | (a) The Issuer further agrees to notify the Dealer promptly upon the occurrence of any event relating to or affecting the Issuer that would cause the Company Information to include an untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they are made, not misleading, except to the extent that the Issuer, by furnishing such notice, would violate any law, regulation or stock exchange rule applicable to it. The Dealer agrees to promptly suspend offers and sales of the Notes upon receipt of such notice. |
5. | Indemnification and Contribution. |
5.1 | (a) The Issuer will indemnify and hold harmless the Dealer, each individual, corporation, partnership, trust, association or other entity controlling the Dealer, any affiliate of the Dealer or any such controlling entity and their respective directors, officers, employees, partners, incorporators, shareholders, servants, trustees and agents (hereinafter the “Indemnitees”) against any and all liabilities, penalties, suits, causes of action, losses, damages, claims, costs and expenses (including, without limitation, reasonable fees and disbursements of external counsel) or judgments of whatever kind or nature (each a “Claim”), imposed upon, incurred by or asserted against the Indemnitees arising out of or based upon (i) any allegation that the Private Placement Memorandum, the Company Information or any written information provided by the Issuer or a Guarantor to the Dealer for distribution to holders and potential holders of Notes included (as of any relevant time) or includes an untrue statement of a material fact or omitted (as of any relevant time) or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) the breach by the Issuer of any agreement, covenant or representation made in or pursuant to this Agreement, or (iii) the breach by any Guarantor of any agreement, covenant or representation made in or pursuant to the Guarantee. This indemnification shall not apply to the extent that the Claim arises out of or is based upon (x) Dealer Information or (y) with respect to the indemnity contained in clause (ii) of the immediately preceding sentence, the gross negligence or willful misconduct of the Dealer as established by a final non-appealable judgment of a court of competent jurisdiction. |
5.2 | Provisions relating to claims made for indemnification under this Section 5 are set forth on Exhibit B to this Agreement. |
5.3 | In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in this Section 5 is held to be unavailable or insufficient to hold harmless the Indemnitees, although applicable in accordance with the terms of this Section 5, the Issuer shall contribute to the aggregate costs incurred by the Dealer in connection with any Claim in the proportion of the respective economic interests of the Issuer and the Dealer; provided, however, that such contribution by the Issuer shall be in an amount such that the aggregate costs incurred by the Dealer do not exceed the aggregate of the commissions and fees earned by the Dealer hereunder with respect to the issue or issues of Notes to which such Claim relates. The respective economic interests shall be calculated by reference to the aggregate proceeds to the Issuer of the Notes issued hereunder and the aggregate commissions and fees earned by the Dealer hereunder. |
6. | Definitions. |
6.1 | “Bribery Act” shall have the meaning set forth in Section 2.12. |
6.2 | “Claim” shall have the meaning set forth in Section 5.1. |
6.3 | “Company Information” at any given time shall mean the Private Placement Memorandum together with, to the extent applicable, (i) the Issuer’s most recent report on Form 10-K filed with the SEC and each report on Form 10-Q or Form 8-K filed by the Issuer with the SEC since the most recent Form 10-K, and, in each case, any information incorporated by reference by such filings with the SEC, (ii) the Issuer’s most recent annual audited financial statements and each interim financial statement or report prepared subsequent thereto, if not included in item (i) above, (iii) the Issuer’s other publicly available recent reports, including, but not limited to, any publicly available filings or reports provided to their respective shareholders, (iv) any other information or disclosure prepared pursuant to Section 4.3 hereof and (v) any information prepared or approved in writing by the Issuer for dissemination to investors or potential investors in the Notes. |
6.4 | “Current Issuing and Paying Agent” shall have the meaning set forth in Section 7.9(i). |
6.5 | “Dealer Information” shall mean material concerning the Dealer provided by the Dealer in writing expressly for inclusion in the Private Placement Memorandum. |
6.6 | “Exchange Act” shall mean the U.S. Securities Exchange Act of 1934, as amended. |
6.7 | “FCPA” shall have the meaning set forth in Section 2.12. |
6.8 | “Guarantors” shall have the meaning set forth in Section 3.10. |
6.9 | “Guarantee” shall have the meaning set forth in Section 3.10. |
6.10 | “Guarantied Parties” shall have the meaning set forth in the Guarantee. |
6.11 | “Indemnitee” shall have the meaning set forth in Section 5.1. |
6.12 | “Institutional Accredited Investor” shall mean an institutional investor that is an accredited investor within the meaning of Rule 501 under the Securities Act and that has such knowledge and experience in financial and business matters that it is capable of evaluating and bearing the economic risk of an investment in the Notes, including, but not limited to, a bank, as defined in Section 3(a)(2) of the Securities Act, or a savings and loan association or other institution, as defined in Section 3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity. |
6.13 | “Issuing and Paying Agent Agreement” shall mean the issuing and paying agent agreement described on the cover page of this Agreement, or any replacement thereof, as such agreement may be amended or supplemented from time to time. |
6.14 | “Issuing and Paying Agent” shall mean the party designated as such on the cover page of this Agreement, or any successor thereto or replacement thereof, as issuing and paying agent under the Issuing and Paying Agent Agreement. |
6.15 | “Manufacturer” shall have the meaning set forth in Schedule B. |
6.16 | “Manufacturer Consent” shall have the meaning set forth in Section 2.8. |
6.17 | “Money Laundering Laws” shall have the meaning set forth in Section 2.13. |
6.18 | “Non-bank fiduciary or agent” shall mean a fiduciary or agent other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a savings and loan association or other institution, as defined in Section 3(a)(5)(A) of the Securities Act. |
6.19 | “Outstanding Notes” shall have the meaning set forth in Section 7.9(ii). |
6.20 | “Private Placement Memorandum” shall mean offering materials prepared in accordance with Section 4 (including materials incorporated by reference therein, if any) provided to purchasers and prospective purchasers of the Notes, and shall include amendments and supplements thereto which may be prepared the Issuer from time to time by in accordance with this Agreement (other than any amendment or supplement that has been completely superseded by a later amendment or supplement). |
6.21 | “Program Documents” shall mean the Guarantee, Notes, this Agreement and the Issuing and Paying Agent Agreement. |
6.22 | “Qualified Institutional Buyer” shall have the meaning assigned to that term in Rule 144A under the Securities Act. |
6.23 | “Replacement” shall have the meaning set forth in Section 7.9(i). |
6.24 | “Replacement Issuing and Paying Agent” shall have the meaning set forth in Section 7.9(i). |
6.25 | “Replacement Issuing and Paying Agent Agreement” shall have the meaning set forth in Section 7.9(i). |
6.26 | “Rule 144A” shall mean Rule 144A under the Securities Act. |
6.27 | “Sanctioned Countries” and “Sanctioned Country” shall have the meanings set forth in Section 2.15. |
6.28 | “Sanctioned Persons” shall have the meaning set forth in Section 2.14. |
6.29 | “Sanctions” shall have the meaning set forth in Section 2.14. |
6.30 | “SEC” shall mean the U.S. Securities and Exchange Commission. |
6.31 | “Securities Act” shall mean the U.S. Securities Act of 1933, as amended. |
6.32 | “Subsidiary” shall mean any corporation or other entity in which more than 50% of its outstanding voting stock or more than 50% of all equity interests is owned directly or indirectly by the Issuer and/or by one or more of the Issuer’s Subsidiaries. |
7. | General |
7.1 | Unless otherwise expressly provided herein, all notices under this Agreement to parties hereto shall be in writing and shall be effective when received at the address of the respective party set forth in the Addendum to this Agreement. |
7.2 | This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. |
7.3 | (a) Each party agrees that any suit, action or proceeding brought by such party against the other party in connection with or arising out of this Agreement or the Notes or the offer and sale of the Notes shall be brought solely in the United States federal courts located in the Borough of Manhattan or the courts of the State of New York located in the Borough of Manhattan (each such federal court or court of the State of New York, a “New York Court”). EACH OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. |
7.4 | This Agreement may be terminated, at any time, by the Issuer, upon one business day’s prior notice to such effect to the Dealer, or by the Dealer upon three business days’ prior notice to such effect to the Issuer. Any such termination, however, shall not affect the obligations of the Issuer and the Dealer under Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties, agreements, covenants, rights or responsibilities of the parties made or arising prior to the termination of this Agreement. |
7.5 | This Agreement is not assignable by either party hereto without the written consent of the other party; provided, however, that the Dealer may assign its rights and obligations under this Agreement to any affiliate of the Dealer. The Dealer will provide the Issuer with notice of any such assignment. |
7.6 | This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. |
7.7 | Except as provided in Section 5 with respect to non-party Indemnitees, this Agreement is for the exclusive benefit of the parties hereto, and their respective permitted successors and assigns hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. |
7.8 | The Issuer acknowledges and agrees that (i) purchases and sales, or placements, of the Notes pursuant to this Agreement, including the determination of any prices for the Notes and Dealer compensation, are arm’s-length commercial transactions between the Issuer and the Dealer, (ii) in connection therewith and with the process leading to such transactions, the Dealer is acting solely as a principal and not the agent (except to the extent explicitly set forth herein) or fiduciary of the Issuer or any of its affiliates, (iii) the Dealer has not assumed an advisory or fiduciary responsibility in favor of the Issuer or any of its affiliates with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether the Dealer has advised or is currently advising the Issuer or any of its affiliates on other matters) or any other obligation to the Issuer or any of its affiliates with respect to the offering contemplated hereby or the process leading thereto except the obligations expressly set forth in this Agreement, (iv) the Issuer is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement, (v) the Dealer and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer and that the Dealer has no obligation to disclose any of those interests by virtue of any advisory or fiduciary relationship, (vi) the Dealer has not provided any legal, accounting, regulatory or tax advice with respect to the transactions contemplated hereby, and (vii) the Issuer has consulted its own legal and financial advisors to the extent it deemed appropriate. The Issuer agrees that it will not claim that the Dealer has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Issuer in connection with such transactions or the process leading thereto. Any review by the Dealer of the Issuer, the transactions contemplated hereby or other matters relating to such transactions shall be performed solely for the benefit of the Dealer and shall not be on behalf of the Issuer. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Issuer and the Dealer with respect to the subject matter hereof. The Issuer hereby waives and releases, to the fullest extent permitted by law, any claims the Issuer may have against the Dealer with respect to any breach or alleged breach of fiduciary duty in connection with the purchase and sale of the Notes. |
7.9 | (i) The parties hereto agree that the Issuer may, in accordance with the terms of this Section 7.9, from time to time replace the party which is then acting as Issuing and Paying Agent (the “Current Issuing and Paying Agent”) with another party (such other party, the “Replacement Issuing and Paying Agent”), and enter into an agreement with the Replacement Issuing and Paying Agent covering the provision of issuing and Paying Agent functions in respect of the Notes by the Replacement Issuing and Paying Agent (the “Replacement Issuing and Paying Agent Agreement”) (any such replacement, a “Replacement”). |
AUTONATION, INC., as Issuer | [________________________], as Dealer |
By: /s/ Andrew Wamser | By: ______________________________ |
Name: Andrew Wamser | Name: |
Title: Treasurer | Title: |
1. | The other dealers referred to in clause (b) of Section 1.2 of the Agreement are [___________________]. |
2. | The addresses of the respective parties for purposes of notices under Section 7.1 are as follows: |
Address: | 200 Southwest 1st Avenue |
Attention: | Treasurer |
Telephone number: | (954) 769-xxxx |
Fax number: | (954) 769-xxxx |
E-mail: | xxxxxx@autonation.com |
Address: | 200 Southwest 1st Avenue |
Attention: | General Counsel |
Telephone number: | (954) 769-xxxx |
Fax number: | (954) 769-xxxx |
E-mail: | xxxxxx@autonation.com |
Address: | [___________________] |
Attention: | [___________________] |
Telephone number: | [___________________] |
Fax number: | [___________________] |
(a) | The Issuer agrees to reimburse each Indemnitee for all expenses (including reasonable fees and disbursements of internal and external counsel) as they are incurred by it in connection with investigating or defending any loss, claim, damage, liability or action in respect of which indemnification may be sought under Section 5 of the Agreement (whether or not it is a party to any such proceedings). |
(b) | Promptly after receipt by an Indemnitee of notice of the existence of a Claim, such Indemnitee will, if a claim in respect thereof is to be made against the Issuer, notify the Issuer in writing of the existence thereof; provided that (i) the omission so to notify the Issuer will not relieve the Issuer from any liability which it may have hereunder unless and except to the extent it did not otherwise learn of such Claim and such failure results in the forfeiture by the Issuer of substantial rights and defenses, and (ii) the omission so to notify the Issuer will not relieve it from liability which it may have to an Indemnitee otherwise than on account of this indemnity agreement. In case any such Claim is made against any Indemnitee and it notifies the Issuer of the existence thereof, the Issuer will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the Indemnitee, to assume the defense thereof, with counsel reasonably satisfactory to such Indemnitee; provided that if the defendants in any such Claim include both the Indemnitee and the Issuer or a Guarantor, and the Indemnitee shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Issuer or such Guarantor, the Issuer shall not have the right to direct the defense of such Claim on behalf of such Indemnitee, and the Indemnitee shall have the right to select separate counsel to assert such legal defenses on behalf of such Indemnitee. Upon receipt of notice from the Issuer to such Indemnitee of the Issuer’s election so to assume the defense of such Claim and approval by the Indemnitee of counsel, the Issuer will not be liable to such Indemnitee for expenses incurred thereafter by the Indemnitee in connection with the defense thereof (other than reasonable costs of investigation) unless (i) the Indemnitee shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the Issuer shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel in the jurisdiction in which any Claim is brought), approved by the Dealer, representing the Indemnitee who is party to such Claim), (ii) the Issuer shall not have employed counsel reasonably satisfactory to the Indemnitee to represent the Indemnitee within a reasonable time after notice of existence of the Claim or (iii) the Issuer has authorized in writing the employment of counsel for the Indemnitee. The indemnity, reimbursement and contribution obligations of the Issuer hereunder shall be in addition to any other liability the Issuer may otherwise have to an Indemnitee and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Issuer and any Indemnitee. The Issuer agrees that without the Dealer’s prior written consent, it will not settle, compromise or consent to the entry of any judgment in any Claim in respect of which indemnification may be sought under the indemnification provision of the Agreement (whether or not the Dealer or any other Indemnitee is an actual or potential party to such Claim), unless such settlement, compromise or consent (i) includes an unconditional release of each Indemnitee from all liability arising out of such Claim and (ii) does not include a statement as to or an admission of fault, culpability or failure to act, by or on behalf of any Indemnitee. |
D x 360 | ||
Money Market Yield = | --------------------- | x 100 |
360 - (D x M) | ||
D x N | ||
Bond Equivalent Yield = | --------------------- | x 100 |
360 - (D x M) | ||
# | Name of Guarantor |
1. | 7 Rod Real Estate North, a Limited Liability Company |
2. | 7 Rod Real Estate South, a Limited Liability Company |
3. | Abraham Chevrolet-Miami, Inc. |
4. | Abraham Chevrolet-Tampa, Inc. |
5. | ACER Fiduciary, Inc. |
6. | Al Maroone Ford, LLC |
7. | Albert Berry Motors, Inc. |
8. | Allison Bavarian |
9. | Allison Bavarian Holding, LLC |
10. | All-State Rent A Car, Inc. |
11. | American Way Motors, Inc. |
12. | AN Cadillac of WPB, LLC |
13. | AN Central Region Management, LLC |
14. | AN Chevrolet - Arrowhead, Inc. |
15. | AN CJ Valencia, Inc. |
16. | AN Collision Center FTL South, Inc. |
[fka Auto Company XVI, Inc.] | |
17. | AN Collision Center of Addison, Inc. |
18. | AN Collision Center of Las Vegas, Inc. |
19. | AN Collision Center of North Houston, Inc. |
20. | AN Collision Center of Tempe, Inc. |
21. | AN Corporate Management Payroll Corp. |
22. | AN Motors on South Padre, LP [fka AN Corpus Christi Chevrolet, LP] |
23. | AN Corpus Christi GP, LLC |
24. | AN Corpus Christi Imports Adv. GP, LLC |
25. | AN Corpus Christi Imports Adv., LP |
26. | AN Corpus Christi Imports GP, LLC |
27. | AN Corpus Christi Imports II GP, LLC |
28. | AN Corpus Christi Imports II, LP |
29. | AN Corpus Christi Imports, LP |
30. | AN Corpus Christi Motors, Inc. |
31. | AN Corpus Christi T. Imports GP, LLC |
32. | AN Corpus Christi T. Imports, LP |
33. | AN County Line Ford, Inc. |
34. | AN Dealership Holding Corp. |
35. | AN F. Imports of Atlanta, LLC |
36. | AN F. Imports of Hawthorne Holding, LLC |
37. | AN F. Imports of Hawthorne, LLC |
[fka AN F. Imports of Hawthorne, Inc.] | |
# | Name of Guarantor |
38. | AN F. Imports of North Denver, LLC |
[fka AN F. Imports of North Denver, Inc.] | |
39. | AN F. Imports of North Phoenix, Inc. |
40. | AN F. Imports of Roseville Holding, LLC |
41. | AN F. Imports of Roseville, Inc. |
42. | AN F. Imports of Seattle, Inc. |
43. | AN F. Imports of Sterling, LLC |
44. | AN Florida Region Management, LLC |
45. | AN Fort Myers Imports, LLC |
46. | AN Fremont Luxury Imports, Inc. |
47. | AN H. Imports of Atlanta, LLC |
48. | AN Imports of Ft. Lauderdale, Inc. |
49. | AN Imports of Seattle, Inc. |
50. | AN Imports of Spokane, Inc. |
51. | AN Imports of Stevens Creek Holding, LLC |
52. | AN Imports of Stevens Creek, Inc. |
53. | AN Imports on Weston Road, Inc. |
54. | AN Luxury Imports GP, LLC |
55. | AN Luxury Imports Holding, LLC |
56. | AN Luxury Imports of Coconut Creek, Inc. |
57. | AN Luxury Imports of Marietta, LLC |
[fka NorthPoint Ford Inc.] | |
58. | AN Luxury Imports of Palm Beach, Inc. |
59. | AN Luxury Imports of Pembroke Pines, Inc. |
60. | AN Luxury Imports of Phoenix, Inc. |
61. | AN Luxury Imports of San Diego, Inc. |
62. | AN Luxury Imports of Sanford, LLC |
[fka AN Luxury Imports of Sanford, Inc.] | |
63. | AN Luxury Imports of Sarasota, Inc. |
64. | AN Luxury Imports of Spokane, Inc. |
65. | AN Luxury Imports of Tucson, Inc. |
66. | AN Luxury Imports, Ltd. |
67. | AN Motors of Brooksville, Inc. |
68. | AN Motors of Dallas, Inc. |
69. | AN Motors of Delray Beach, Inc. |
70. | AN Motors of Englewood, Inc. |
71. | AN Motors of Memphis, Inc. |
72. | AN Motors of Scottsdale, LLC |
73. | AN Pontiac GMC Houston North GP, LLC |
74. | AN Pontiac GMC Houston North, LP |
75. | AN San Jose Luxury Imports Holdings, LLC |
[fka Smythe European Holding, LLC] | |
76. | AN San Jose Luxury Imports, Inc. |
[fka Smythe European, Inc.] | |
77. | AN Seattle Motors, Inc. |
# | Name of Guarantor |
78. | AN Subaru Motors, Inc. |
79. | AN T. Imports of Atlanta, LLC |
80. | AN Texas Region Management, Ltd. |
81. | AN Tucson Imports, LLC |
82. | AN Valencia Auto Imports, Inc. |
[fka Valencia Auto Imports, Inc.] | |
[fka Auto Company II, Inc.] | |
83. | AN West Central Region Management, LLC |
84. | AN Western Region Management, LLC |
85. | AN/CF Acquisition Corp. |
86. | AN/GMF, Inc. |
87. | AN/KPBG Motors, Inc. |
88. | AN/MF Acquisition Corp. |
89. | AN/MNI Acquisition Corp. |
90. | AN/PF Acquisition Corp. |
91. | Anderson Chevrolet |
92. | Anderson Chevrolet Los Gatos, Inc. |
93. | Anderson Cupertino, Inc. |
94. | Appleway Chevrolet, Inc. |
95. | Atrium Restaurants, Inc. |
96. | Auto Ad Agency, Inc. |
97. | Auto Car Holding, LLC |
98. | Auto Car, Inc. |
99. | Auto Company IX, Inc. |
100. | Auto Company VI, Inc. |
101. | Auto Company VII, Inc. |
102. | Auto Company VIII, Inc. |
103. | Auto Company X, Inc. |
104. | Auto Company XI, Inc. |
105. | Auto Company XII, Inc. |
106. | Auto Company XIII, Inc. |
107. | Auto Company XIV, Inc. |
108. | Auto Company XIX, Inc. |
109. | Auto Company XL, Inc. |
110. | Auto Company XLI, Inc. |
111. | Auto Company XLII, Inc. |
112. | Auto Company XLIII, Inc. |
113. | Auto Company XLIV, Inc. |
114. | Auto Company XLV, Inc. |
115. | Auto Company XVII, Inc. |
116. | Auto Company XVIII, Inc. |
117. | Auto Company XXI, Inc. |
118. | Auto Company XXII, Inc. |
119. | Auto Company XXIII, Inc. |
120. | Auto Company XXIV, Inc. |
# | Name of Guarantor |
121. | Auto Company XXIX, Inc. |
122. | Auto Company XXV, Inc. |
123. | Auto Company XXVI, Inc. |
124. | Auto Company XXVII, Inc. |
125. | Auto Company XXVIII, Inc. |
126. | Auto Company XXX, Inc. |
127. | Auto Company XXXI, Inc. |
128. | Auto Company XXXII, Inc. |
129. | Auto Company XXXIII, Inc. |
130. | Auto Company XXXIV, Inc. |
131. | Auto Company XXXIX, Inc. |
132. | Auto Company XXXV, Inc. |
133. | Auto Company XXXVI, Inc. |
134. | Auto Company XXXVII, Inc. |
135. | Auto Company XXXVIII, Inc. |
136. | Auto Dealership III, LLC |
137. | Auto Dealership IV, LLC |
138. | Auto Dealership IX, LLC |
139. | Auto Dealership V, LLC |
140. | Auto Dealership VI, LLC |
141. | Auto Dealership VII, LLC |
142. | Auto Dealership VIII, LLC |
143. | Auto Dealership X, LLC |
144. | Auto Dealership XI, LLC |
145. | Auto Dealership XII, LLC |
146. | Auto Dealership XIII, LLC |
147. | Auto Dealership XIV, LLC |
148. | Auto Dealership XIX, LLC |
149. | Auto Dealership XV, LLC |
150. | Auto Dealership XVI, LLC |
151. | Auto Dealership XVII, LLC |
152. | Auto Dealership XVIII, LLC |
153. | Auto Dealership XX, LLC |
154. | Auto Dealership XXI, LLC |
155. | Auto Dealership XXII, LLC |
156. | Auto Dealership XXIII, LLC |
157. | Auto Dealership XXIV, LLC |
158. | Auto Dealership XXIX, LLC |
159. | Auto Dealership XXV, LLC |
160. | Auto Dealership XXVI, LLC |
161. | Auto Dealership XXVII, LLC |
162. | Auto Dealership XXVIII, LLC |
163. | Auto Dealership XXX, LLC |
164. | Auto Holding, LLC |
165. | Auto Mission Holding, LLC |
# | Name of Guarantor |
166. | Auto Mission, Ltd. |
167. | Auto West, Inc. |
168. | Autohaus Holdings, Inc. |
169. | AutoNation Benefits Company, Inc. |
170. | AutoNation Corporate Management, LLC |
171. | AutoNation Direct Nevada, Inc. |
[fka Auto Company XX, Inc.] | |
172. | AutoNation Enterprises Incorporated |
173. | AutoNation Financial Services, LLC |
174. | AutoNation Fort Worth Motors, Ltd. |
175. | AutoNation GM GP, LLC |
176. | AutoNation Holding Corp. |
177. | AutoNation Imports of Katy GP, LLC |
178. | AutoNation Imports of Katy, L.P. |
179. | AutoNation Imports of Lithia Springs, LLC |
[fka AutoNation Imports of Lithia Springs, Inc.] | |
180. | AutoNation Imports of Longwood, Inc. |
181. | AutoNation Imports of Palm Beach, Inc. |
182. | AutoNation Imports of Winter Park, Inc. |
183. | AutoNation Motors Holding Corp. |
184. | AutoNation Motors of Lithia Springs, Inc. |
185. | AutoNation North Texas Management GP, LLC |
186. | AutoNation Northwest Management, LLC |
187. | AutoNation Orlando Venture Holdings, Inc. |
188. | AutoNation Realty Corporation |
189. | AutoNation USA of Perrine, Inc. |
190. | AutoNation V. Imports of Delray Beach, LLC |
191. | AutoNationDirect.com, Inc. |
192. | Bankston Auto, Inc. |
193. | Bankston Chrysler Jeep of Frisco, L.P. |
194. | Bankston CJ GP, LLC |
195. | Bankston Ford of Frisco, Ltd. Co. |
196. | Bankston Nissan in Irving, Inc. |
197. | Bankston Nissan Lewisville GP, LLC |
198. | Bankston Nissan Lewisville, Ltd. |
199. | Bargain Rent-A-Car |
200. | Batfish, LLC |
201. | BBCSS, Inc. |
202. | Beach City Chevrolet Company, Inc. |
203. | Beach City Holding, LLC |
204. | Beacon Motors, Inc. |
205. | Bell Motors, LLC |
[fka Bell Dodge, L.L.C.] | |
206. | Bellevue Automotive, Inc. |
[fka Dodge of Bellevue, Inc.] | |
# | Name of Guarantor |
207. | Bengal Motor Company, Ltd. |
208. | Bengal Motors, Inc. |
209. | Bill Ayares Chevrolet, LLC |
210. | Bledsoe Dodge, LLC |
211. | Bob Townsend Ford, Inc. |
212. | Body Shop Holding Corp. |
213. | BOSC Automotive Realty, Inc. |
214. | Brown & Brown Chevrolet - Superstition Springs, LLC |
215. | Brown & Brown Chevrolet, Inc. |
216. | Brown & Brown Nissan Mesa, L.L.C. |
217. | Brown & Brown Nissan, Inc. |
218. | Buick Mart Limited Partnership |
219. | Bull Motors, LLC |
220. | C. Garrett, Inc. |
221. | Carlisle Motors, LLC |
222. | Carwell Holding, LLC |
223. | Carwell, LLC |
224. | Centennial Automotive, LLC |
[fka Emich Dodge, LLC] | |
225. | Cerritos Body Works Holding, LLC |
226. | Cerritos Body Works, Inc. |
227. | Champion Chevrolet Holding, LLC |
228. | Champion Chevrolet, LLC |
229. | Champion Ford, Inc. |
230. | Charlie Hillard, Inc. |
231. | Charlie Thomas Chevrolet GP, LLC |
232. | Charlie Thomas Chevrolet, Ltd. |
233. | Charlie Thomas Chrysler-Plymouth, Inc. |
234. | Charlie Thomas’ Courtesy Ford, Ltd. |
235. | Charlie Thomas’ Courtesy GP, LLC |
236. | Charlie Thomas Courtesy Leasing, Inc. |
237. | Charlie Thomas F. GP, LLC |
238. | Charlie Thomas Ford, Ltd. |
239. | Chesrown Auto, LLC |
240. | Chesrown Chevrolet, LLC |
241. | Chesrown Collision Center, Inc. |
242. | Chesrown Ford, Inc. |
243. | Chevrolet World, Inc. |
244. | Chuck Clancy Ford of Marietta, LLC |
245. | CJ Valencia Holding, LLC |
246. | Coastal Cadillac, Inc. |
247. | Consumer Car Care Corporation |
248. | Contemporary Cars, Inc. |
249. | Cook-Whitehead Ford, Inc. |
250. | Corporate Properties Holding, Inc. |
# | Name of Guarantor |
251. | Corpus Christi Collision Center, Inc. |
[fka Auto Company I, Inc.] | |
252. | Costa Mesa Cars Holding, LLC |
253. | Costa Mesa Cars, Inc. |
254. | Courtesy Auto Group, Inc. |
255. | Courtesy Broadway, LLC |
256. | Covington Pike Motors, Inc. |
257. | CT Intercontinental GP, LLC |
258. | CT Intercontinental, Ltd. |
259. | CT Motors, Inc. |
260. | D/L Motor Company |
261. | Deal Dodge of Des Plaines, Inc. |
262. | Dealership Properties, Inc. |
263. | Dealership Realty Corporation |
264. | Desert Buick-GMC Trucks, L.L.C. |
265. | Desert Chrysler-Plymouth, Inc. |
266. | Desert Dodge, Inc. |
267. | Desert GMC, L.L.C. |
268. | Dobbs Ford of Memphis, Inc. |
269. | Dobbs Ford, Inc. |
270. | Dobbs Mobile Bay, Inc. |
271. | Dobbs Motors of Arizona, Inc. |
272. | Don Mealey Chevrolet, Inc. |
273. | Don Mealey Imports, Inc. |
274. | Don-A-Vee Jeep-Eagle, Inc. |
275. | Driver’s Mart Worldwide, Inc. |
276. | Eastgate Ford, Inc. |
277. | Ed Mullinax Ford, LLC |
278. | Edgren Motor Company, Inc. |
279. | Edgren Motor Holding, LLC |
280. | El Monte Imports Holding, LLC |
281. | El Monte Imports, Inc. |
282. | El Monte Motors Holding, LLC |
283. | El Monte Motors, Inc. |
284. | Emich Subaru West, LLC |
285. | Empire Services Agency, Inc. |
286. | Financial Services GP, LLC |
287. | Financial Services, Ltd. |
288. | First Team Automotive Corp. |
289. | First Team Ford of Manatee, Ltd. |
290. | First Team Ford, Ltd. |
291. | First Team Jeep Eagle, Chrysler-Plymouth, Ltd. |
292. | First Team Management, Inc. |
293. | Fit Kit Holding, LLC |
294. | Fit Kit, Inc. |
# | Name of Guarantor |
295. | Florida Auto Corp. |
296. | Ford of Kirkland, Inc. |
297. | Fox Chevrolet, LLC |
298. | Fox Imports, LLC |
299. | Fox Motors, LLC |
300. | Fred Oakley Motors, Inc. |
301. | Fremont Luxury Imports Holding, LLC |
302. | Ft. Lauderdale Nissan, Inc. |
303. | G.B. Import Sales & Service Holding, LLC |
304. | G.B. Import Sales & Service, LLC |
305. | Gene Evans Ford, LLC |
306. | George Sutherlin Nissan, LLC |
307. | Government Boulevard Motors, Inc. |
308. | Gulf Management, Inc. |
309. | Hayward Dodge, Inc. |
310. | Hillard Auto Group, Inc. |
311. | Hollywood Imports Limited, Inc. |
312. | Hollywood Kia, Inc. |
313. | Horizon Chevrolet, Inc. |
314. | House of Imports Holding, LLC |
315. | House of Imports, Inc. |
316. | Houston Auto M. Imports Greenway, Ltd. |
317. | Houston Auto M. Imports North, Ltd. |
318. | Houston Imports Greenway GP, LLC |
319. | Houston Imports North GP, LLC |
320. | Irvine Imports Holding, LLC |
321. | Irvine Imports, Inc. |
322. | Irvine Toyota/Nissan/Volvo Limited Partnership |
323. | Jemautco, Inc. |
324. | Jerry Gleason Chevrolet, Inc. |
325. | Jerry Gleason Dodge, Inc. |
326. | Jim Quinlan Chevrolet Co. |
327. | Joe MacPherson Ford |
328. | Joe MacPherson Imports No. I |
329. | Joe MacPherson Infiniti |
330. | Joe MacPherson Infiniti Holding, LLC |
331. | Joe MacPherson Oldsmobile |
332. | John M. Lance Ford, LLC |
333. | J-R Advertising Company |
334. | J-R Motors Company North |
335. | J-R Motors Company South |
336. | JRJ Investments, Inc. |
337. | Kenyon Dodge, Inc. |
338. | King’s Crown Ford, Inc. |
# | Name of Guarantor |
339. | Kirkland Motors, Inc. |
[fka Auto Company V, Inc.] | |
340. | L.P. Evans Motors WPB, Inc. |
341. | L.P. Evans Motors, Inc. |
342. | Lance Children, Inc. |
343. | Leesburg Imports, LLC |
344. | Leesburg Motors, LLC |
345. | Les Marks Chevrolet, Inc. |
346. | Lew Webb’s Ford, Inc. |
347. | Lew Webb’s Irvine Nissan Holding, LLC |
348. | Lew Webb’s Irvine Nissan, Inc. |
349. | Lewisville Imports GP, LLC |
350. | Lewisville Imports, Ltd. |
351. | Lot 4 Real Estate Holdings, LLC |
352. | Luxury Orlando Imports, Inc. |
[fka Auto Company III, Inc.] | |
353. | MacHoward Leasing |
354. | MacHoward Leasing Holding, LLC |
355. | MacPherson Enterprises, Inc. |
356. | Magic Acquisition Corp. |
357. | Magic Acquisition Holding, LLC |
358. | Maitland Luxury Imports, Inc. |
[fka AN Imports of Boulder, Inc.] | |
[fka Auto Company XV, Inc.] | |
359. | Marks Family Dealerships, Inc. |
360. | Marks Transport, Inc. |
361. | AN Motors of Ft. Lauderdale, Inc.[fka Maroone Chevrolet Ft. Lauderdale, Inc.] |
362. | AN Motors of Pembroke, LLC [fka Maroone Chevrolet, LLC] |
363. | Maroone Dodge, LLC |
364. | AN Motors on Federal Highway, LLC [fka Maroone Ford, LLC] |
365. | Maroone Management Services, Inc. |
366. | MC/RII, LLC |
367. | Mealey Holdings, Inc. |
368. | Metro Chrysler Jeep, Inc. |
369. | Midway Chevrolet, Inc. |
370. | Mike Hall Chevrolet, Inc. |
371. | Mike Shad Chrysler Plymouth Jeep Eagle, Inc. |
372. | Mike Shad Ford, Inc. |
373. | Miller-Sutherlin Automotive, LLC |
374. | Mission Blvd. Motors, Inc. |
375. | Mr. Wheels Holding, LLC |
376. | Mr. Wheels, Inc. |
377. | Mullinax East, LLC |
378. | Mullinax Ford North Canton, Inc. |
379. | Mullinax Ford South, Inc. |
# | Name of Guarantor |
380. | Mullinax Lincoln-Mercury, Inc. |
381. | Mullinax Used Cars, Inc. |
382. | Naperville Imports, Inc. |
383. | Newport Beach Cars Holding, LLC |
384. | Newport Beach Cars, LLC |
385. | Nichols Ford, Ltd. |
386. | Nichols GP, LLC |
387. | Nissan of Brandon, Inc. |
388. | Northpoint Chevrolet, LLC |
389. | Northwest Financial Group, Inc. |
390. | Ontario Dodge, Inc. |
391. | Oxnard Venture Holdings, Inc. |
392. | Payton-Wright Ford Sales, Inc. |
393. | Pembroke Motors, Inc. |
[fka AutoNation Dodge of Pembroke Pines, Inc.] | |
394. | Peyton Cramer Automotive |
395. | Peyton Cramer Automotive Holding, LLC |
396. | Peyton Cramer F. Holding, LLC |
397. | Peyton Cramer Ford |
398. | Peyton Cramer Infiniti |
399. | Peyton Cramer Infiniti Holding, LLC |
400. | Peyton Cramer Jaguar |
401. | Peyton Cramer Lincoln-Mercury |
402. | Peyton Cramer LM Holding, LLC |
403. | Pierce Automotive Corporation |
404. | Pierce, LLC |
405. | Pitre Chrysler-Plymouth-Jeep of Scottsdale, Inc. |
406. | Plains Chevrolet GP, LLC |
407. | Plains Chevrolet, Ltd. |
408. | PMWQ, Inc. |
409. | PMWQ, Ltd. |
410. | Port City Imports, Inc. |
411. | Prime Auto Resources, Inc. |
412. | Quality Nissan GP, LLC |
413. | Quality Nissan, Ltd. |
414. | Quinlan Motors, Inc. |
415. | R. Coop Limited |
416. | R.L. Buscher II, Inc. |
417. | R.L. Buscher III, Inc. |
418. | Real Estate Holdings, Inc. |
419. | Republic DM Property Acquisition Corp. |
420. | Republic Resources Company |
421. | Republic Risk Management Services, Inc. |
422. | Resources Aviation, Inc. |
423. | RI Merger Corp. |
# | Name of Guarantor |
424. | RI/BB Acquisition Corp. |
425. | RI/BBNM Acquisition Corp. |
426. | RI/BRC Real Estate Corp. |
427. | RI/DM Acquisition Corp. |
428. | RI/Hollywood Nissan Acquisition Corp. |
429. | RI/LLC Acquisition Corp. |
430. | RI/RMC Acquisition GP, LLC |
431. | RI/RMC Acquisition, Ltd. |
432. | RI/RMP Acquisition Corp. |
433. | RI/RMT Acquisition GP, LLC |
434. | RI/RMT Acquisition, Ltd. |
435. | RI/WFI Acquisition Corporation |
436. | RKR Motors, Inc. |
437. | Roseville Motor Corporation |
438. | Roseville Motor Holding, LLC |
439. | Sahara Imports, Inc. |
440. | Sahara Nissan, Inc. |
441. | Saul Chevrolet Holding, LLC |
442. | SCM Realty, Inc. |
443. | Shamrock F. Holding, LLC |
444. | Shamrock Ford, Inc. |
445. | Six Jays LLC |
446. | SMI Motors Holding, LLC |
447. | SMI Motors, Inc. |
448. | South Broadway Motors, LLC |
[ fka Emich Chrysler Plymouth, LLC] | |
449. | Southwest Motors of Denver, LLC |
[fka Southwest Dodge, LLC] | |
450. | Spitfire Properties, Inc. |
451. | Star Motors, LLC |
452. | Steakley Chevrolet GP, LLC |
453. | Steakley Chevrolet, Ltd. |
454. | Steeplechase Motor Company |
455. | Steve Moore Chevrolet Delray, LLC |
456. | Steve Moore Chevrolet, LLC |
457. | Steve Moore’s Buy-Right Auto Center, Inc. |
458. | Stevens Creek Holding, LLC |
459. | Stevens Creek Luxury Imports Holding, LLC |
[fka Auto Dealership II, LLC] | |
460. | Stevens Creek Luxury Imports, Inc. |
[fka Auto Company IV, Inc.] | |
461. | Stevens Creek Motors, Inc. |
462. | Sunrise Nissan of Jacksonville, Inc. |
463. | Sunrise Nissan of Orange Park, Inc. |
464. | Sunset Pontiac-GMC Truck South, Inc. |
# | Name of Guarantor |
465. | Sunset Pontiac-GMC, Inc. |
466. | Superior Nissan, Inc. |
467. | Sutherlin Chrysler-Plymouth Jeep-Eagle, LLC |
468. | Sutherlin H. Imports, LLC |
469. | Sutherlin Imports, LLC |
470. | Sutherlin Nissan, LLC |
471. | Sutherlin Town Center, Inc. |
472. | Tartan Advertising, Inc. |
473. | Tasha Incorporated |
474. | Taylor Jeep Eagle, LLC |
475. | Terry York Motor Cars Holding, LLC |
476. | Terry York Motor Cars, Ltd. |
477. | Texan Ford Sales, Ltd. |
478. | Texan Ford, Inc. |
479. | Texan Sales GP, LLC |
480. | Texas Management Companies LP, LLC |
481. | The Consulting Source, Inc. |
482. | The Pierce Corporation II, Inc. |
483. | Tinley Park A. Imports, Inc. |
484. | Tinley Park J. Imports, Inc. |
485. | Tinley Park V. Imports, Inc. |
486. | Torrance Nissan Holding, LLC |
487. | Torrance Nissan, LLC |
488. | Tousley Ford, Inc. |
489. | Toyota Cerritos Limited Partnership |
490. | Triangle Corporation |
491. | T-West Sales & Service, Inc. |
492. | Valencia Auto Imports Holding, LLC |
[fka Auto Dealership I, LLC] | |
493. | Valencia B. Imports Holding, LLC |
494. | Valencia B. Imports, Inc. |
495. | Valencia Dodge |
496. | Valencia Dodge Holding, LLC |
497. | Valencia H. Imports Holding, LLC |
498. | Valencia H. Imports, Inc. |
499. | Valley Chevrolet, LLC |
500. | Vanderbeek Motors Holding, LLC |
501. | Vanderbeek Motors, Inc. |
502. | Vanderbeek Olds/GMC Truck, Inc. |
503. | Vanderbeek Truck Holding, LLC |
504. | Village Motors, LLC |
505. | Vince Wiese Chevrolet, Inc. |
506. | Vince Wiese Holding, LLC |
507. | W.O. Bankston Nissan, Inc. |
508. | Wallace Dodge, LLC |
# | Name of Guarantor |
509. | Wallace Ford, LLC |
510. | Wallace Lincoln-Mercury, LLC |
511. | Wallace Nissan, LLC |
512. | Webb Automotive Group, Inc. |
513. | West Colorado Motors, LLC |
[fka Emich Oldsmobile, LLC] | |
514. | West Colton Cars, Inc. |
515. | West Side Motors, Inc. |
516. | Westgate Chevrolet GP, LLC |
517. | Westgate Chevrolet, Ltd. |
518. | Westmont A. Imports, Inc. |
519. | Westmont B. Imports, Inc. |
520. | Westmont M. Imports, Inc. |
521. | Woody Capital Investment Company II |
522. | Woody Capital Investment Company III |
523. | Working Man’s Credit Plan, Inc. |
1. | Letter Agreement, dated as of January 30, 2006, between the Issuer and Ford Motor Company (“Ford”). |
2. | Letter Agreement, dated as of January 30, 2006, between the Issuer and Kia Motors America (“Kia”). |
3. | Letter Agreement, dated as of January 30, 2006, between the Issuer and Nissan North America, Inc. (“Nissan”). |
4. | Letter Agreement, dated as of January 30, 2006, between the Issuer and Toyota Motor Sales, U.S.A., Inc. (“Toyota”). |
5. | Letter Agreement, dated as of February 23, 2006, between the Issuer and BMW of North America, LLC. (“BMW,” and together with Ford, Kia, Nissan and Toyota, the “Manufacturers,” and each, a “Manufacturer”) |