FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE dated as of December 31, 1999 (this
"SUPPLEMENTAL INDENTURE") is by and among:
SONIC AUTOMOTIVE-BONDESEN, INC., a Florida corporation,
SONIC AUTOMOTIVE OF TEXAS, L.P., a Texas limited partnership,
SONIC AUTOMOTIVE-1720 MASON AVE., DB, LLC, a Florida limited liability company,
SONIC AUTOMOTIVE-3401 N. MAIN, TX, L.P., a Texas limited partnership,
SONIC AUTOMOTIVE-4701 I-10 EAST, TX, L.P., a Texas limited partnership,
SONIC AUTOMOTIVE-5221 I-10 EAST, TX, L.P., a Texas limited partnership,
SONIC AUTOMOTIVE-6008 N. DALE MABRY, FL, INC., a Florida corporation,
SONIC AUTOMOTIVE-9103 E. INDEPENDENCE, NC, LLC, a North Carolina limited
liability company,
SONIC-2185 CHAPMAN RD., CHATTANOOGA, LLC, a Tennessee limited liability company,
SONIC-CAMP FORD, L.P., a Texas limited partnership,
SONIC-CLASSIC DODGE, INC., an Alabama corporation,
SONIC-FM AUTOMOTIVE, LLC, a Florida limited liability company,
SONIC-FM, INC., a Florida corporation,
SONIC-FM NISSAN, INC., a Florida corporation,
SONIC-FM VW, INC., a Florida corporation,
SONIC-FREELAND, INC., a Florida corporation,
SONIC-GLOBAL IMPORTS, L.P., a Georgia limited partnership,
SONIC-INTEGRITY DODGE LV, LLC, a Nevada limited liability company,
SONIC-LLOYD NISSAN, INC., a Florida corporation,
SONIC-LLOYD PONTIAC-CADILLAC, INC., a Florida corporation,
SONIC-LUTE RILEY, L.P., a Texas limited partnership,
SONIC-MANHATTAN FAIRFAX, INC., a Virginia corporation,
SONIC-MANHATTAN WALDORF, INC., a Maryland corporation,
SONIC-NEWSOME AUTOMOTIVE, LLC, a South Carolina limited liability company,
SONIC-NEWSOME CHEVROLET WORLD, INC., a South Carolina corporation,
SONIC-NEWSOME OF FLORENCE, INC., a South Carolina corporation,
SONIC-NORTH CHARLESTON, INC., a South Carolina corporation,
SONIC-NORTH CHARLESTON DODGE, INC., a South Carolina corporation,
SONIC-READING, L.P., a Texas limited partnership,
SONIC-ROCKVILLE IMPORTS, INC., a Maryland corporation,
SONIC-ROCKVILLE MOTORS, INC., a Maryland corporation,
SONIC-SAM WHITE NISSAN, L.P., a Texas limited partnership,
SONIC-SAM WHITE OLDSMOBILE, L.P., a Texas limited partnership,
SONIC-SHOTTENKIRK, INC., a Florida corporation,
SONIC-SUPERIOR OLDSMOBILE, LLC, a Tennessee limited liability company,
SONIC OF TEXAS, INC., a Texas corporation,
SONIC-VOLVO LV, LLC, a Nevada limited liability company,
SONIC-WILLIAMS BUICK, INC., an Alabama corporation,
SONIC-WILLIAMS CADILLAC, INC., an Alabama corporation,
SONIC-WILLIAMS IMPORTS, INC., an Alabama corporation,
SONIC-WILLIAMS MOTORS, LLC, an Alabama limited liability company, and
VILLAGE IMPORTED CARS, INC., a Maryland corporation
FIRSTAMERICA AUTOMOTIVE, INC., a Delaware corporation
AUTOBAHN, INC., a California corporation
DON LUCAS INTERNATIONAL, INC., a California corporation
FA SERVICE CORPORATION, a California corporation
FAA AUTO FACTORY, INC., a California corporation
FAA BEVERLY HILLS, INC., a California corporation
FAA CAPITOL N, INC., a California corporation
FAA CONCORD H, INC., a California corporation
FAA CONCORD N, INC., a California corporation
FAA CONCORD T, INC., a California corporation
FAA DEALER SERVICES, INC., a California corporation
FAA DUBLIN N, INC., a California corporation
FAA DUBLIN VWD, INC., a California corporation
FAA HOLDING CORP., a California corporation
FAA LAS VEGAS H, INC., a Nevada corporation
FAA MARIN D, INC., a California corporation
FAA MARIN F, INC., a California corporation
FAA MONTEREY F, INC., a California corporation
FAA POWAY D, INC., a California corporation
FAA POWAY G, INC., a California corporation
FAA POWAY H, INC., a California corporation
FAA POWAY T, INC., a California corporation
FAA SAN BRUNO, INC., a California corporation
FAA SANTA MONICA V, INC., a California corporation
FAA SERRAMONTE H, INC., a California corporation
FAA SERRAMONTE L, INC., a California corporation
FAA SERRAMONTE, INC., a California corporation
FAA STEVENS CREEK, INC., a California corporation
FAA TORRANCE CPJ, INC., a California corporation
FAA WOODLAND HILLS VW, INC., a California corporation
FRANCISCAN MOTORS, INC., a California corporation
KRAMER MOTORS INCORPORATED, a California corporation
LUCAS DEALERSHIP GROUP, INC., a Texas corporation
SANTA CLARA IMPORTED CARS, INC., a California corporation
SMART NISSAN, INC., a California corporation
STEVENS CREEK CADILLAC, INC., a California corporation
TRANSCAR LEASING, INC., a California corporation
WINDWARD, INC., a Hawaii corporation
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(hereinafter referred to collectively as the "GUARANTEEING SUBSIDIARIES"), SONIC
AUTOMOTIVE, INC., a Delaware corporation, (the "COMPANY"), the other Guarantors
(as listed on the signature page of the Indenture referred to below) (the
"GUARANTORS") and U.S. BANK TRUST NATIONAL ASSOCIATION, as trustee under the
Indenture referred to below (the "TRUSTEE").
WITNESSETH
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an Indenture dated as of July 1, 1998, as supplemented
(the "INDENTURE") providing for the issuance in an aggregate principal amount of
up to $125,000,000 of the Company's 11% Senior Subordinated Notes due 2008 (the
"NOTES"); and
WHEREAS, the Indenture provides that under certain circumstances each of
the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each of the Guaranteeing Subsidiaries
shall guarantee all of the Indenture Obligations under the Notes and the
Indenture on the terms and conditions set forth herein (the "NOTE GUARANTEE");
and
WHEREAS, each Guaranteeing Subsidiary is a wholly-owned direct or indirect
subsidiary of the Company; and
WHEREAS, pursuant to Section 901(e) of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture to add the
Guaranteeing Subsidiaries pursuant to the requirements of Section 1013 of the
Indenture; and
WHEREAS, the second paragraph of Section 1314 of the Indenture contains an
erroneous cross-reference to Section 1013(b) where such cross-reference should
be to Section 1013(c);
WHEREAS, pursuant to Section 901(c) of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture to cure any
ambiguity or correct any provision in the Indenture which may be defective or
inconsistent with any other provision of the Indenture; and
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each of the
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
SECTION 1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
SECTION 2. AGREEMENT TO GUARANTEE. Each of the Guaranteeing Subsidiaries
hereby agrees as follows (notwithstanding anything to the contrary in this
Supplemental Indenture, such agreements of the Guaranteeing Subsidiaries shall
be construed as identical to those agreements
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made by the Guarantors under the Indenture, and the obligations and rights of
the Guaranteeing Subsidiaries hereunder shall be no more and no less than those
of the Guarantors under the Indenture):
(a) GUARANTEEING SUBSIDIARIES' GUARANTEE. Along with the Guarantors named
in the Indenture and in accordance with Article Thirteen of the Indenture and
this Section 2, to guarantee absolutely, fully, unconditionally and irrevocably,
jointly and severally with each other and with each other Person which may
become a Guarantor under the Indenture, to the Trustee and the Holders, as if
the Guaranteeing Subsidiaries were the principal debtor, the punctual payment
and performance when due of all Indenture Obligations (which for purposes of
this Guarantee shall also be deemed to include all commissions, fees, charges,
costs and other expenses (including reasonable legal fees and disbursements of
one counsel) arising out of or incurred by the Trustee or the Holders in
connection with the enforcement of this Guarantee).
(b) CONTINUING GUARANTEE; NO RIGHT OF SET-OFF; INDEPENDENT OBLIGATIONS.
(i) This Guarantee by the Guaranteeing Subsidiaries shall be a
continuing guarantee of the payment and performance of all Indenture Obligations
and shall remain in full force and effect until the payment in full of all of
the Indenture Obligations and shall apply to and secure any ultimate balance due
or remaining unpaid to the Trustee or the Holders. This Guarantee by the
Guaranteeing Subsidiaries shall not be considered as wholly or partially
satisfied by the payment or liquidation at any time or from time to time of any
sum of money for the time being due or remaining unpaid to the Trustee or the
Holders. Each Guaranteeing Subsidiary, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in the Indenture as if named as a Guarantor therein including
those set forth in Article Eight of the Indenture. Without limiting the
generality of the foregoing, each Guaranteeing Subsidiaries' liability shall
extend to all amounts which constitute part of the Indenture Obligations and
would be owed by the Company under the Indenture and the Securities but for the
fact that they are unenforceable, reduced, limited, impaired, suspended or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(ii) Each Guaranteeing Subsidiary, jointly and severally, hereby
guarantees that the Indenture Obligations will be paid to the Trustee without
set-off or counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise) in lawful currency of the United States of America.
(iii) Each Guaranteeing Subsidiary, jointly and severally,
guarantees that the Indenture Obligations shall be paid strictly in accordance
with their terms regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
holders of the Securities.
(iv) Each Guaranteeing Subsidiary's liability to pay or perform or
cause the performance of the Indenture Obligations under this Guarantee shall
arise forthwith after demand for payment or performance by the Trustee has been
given to the Guarantors in the manner prescribed in Section 106 of the
Indenture.
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(v) Except as provided in the Indenture, the provisions of Article
Thirteen of the Indenture and this Section 2 cover all agreements between the
parties hereto relative to this Guarantee and none of the parties shall be bound
by any representation, warranty or promise made by any Person relative thereto
or hereto, which is not embodied therein or herein; and it is specifically
acknowledged and agreed that this Guarantee has been delivered by each
Guaranteeing Subsidiary free of any conditions whatsoever and that no
representations, warranties or promises have been made to any Guaranteeing
Subsidiary affecting its liabilities hereunder, and that the Trustee shall not
be bound by any representations, warranties or promises now or at any time
hereafter made by the Company to any Guaranteeing Subsidiary.
(vi) This Guarantee is a guarantee of payment, performance and
compliance and not of collectibility and is in no way conditioned or contingent
upon any attempt to collect from or enforce performance or compliance by the
Company or upon any event or condition whatsoever.
(vii) The obligations of the Guaranteeing Subsidiaries set forth
herein constitute the full recourse obligations of the Guaranteeing Subsidiaries
enforceable against them to the full extent of all their assets and properties.
(c) GUARANTEE ABSOLUTE. The obligations of the Guaranteeing Subsidiaries
hereunder are independent of the obligations of the Company under the Securities
and the Indenture and a separate action or actions may be brought and prosecuted
against any Guaranteeing Subsidiary whether or not an action or proceeding is
brought against the Company and whether or not the Company is joined in any such
action or proceeding. The liability of the Guaranteeing Subsidiaries hereunder
is irrevocable, absolute and unconditional and (to the extent permitted by law)
the liability and obligations of the Guaranteeing Subsidiaries hereunder shall
not be released, discharged, mitigated, waived, impaired or affected in whole or
in part by:
(i) any defect or lack of validity or enforceability in respect
of any Indebtedness or other obligation of the Company or
any other Person under the Indenture or the Securities, or
any agreement or instrument relating to any of the
foregoing;
(ii) any grants of time, renewals, extensions, indulgences,
releases, discharges or modifications which the Trustee or
the Holders may extend to, or make with, the Company, any
Guarantor, any Guaranteeing Subsidiary or any other Person,
or any change in the time, manner or place of payment of, or
in any other term of, all or any of the Indenture
Obligations, or any other amendment or waiver of, or any
consent to or departure from, the Indenture or the
Securities, including any increase or decrease in the
Indenture Obligations;
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(iii) the taking of security from the Company, any Guarantor, any
Guaranteeing Subsidiary or any other Person, and the
release, discharge or alteration of, or other dealing with,
such security;
(iv) the occurrence of any change in the laws, rules, regulations
or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending,
varying, reducing or otherwise affecting, or purporting to
amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of any
Guaranteeing Subsidiary hereunder;
(v) the abstention from taking security from the Company, any
Guarantor, any Guaranteeing Subsidiary or any other Person
or from perfecting, continuing to keep perfected or taking
advantage of any security;
(vi) any loss, diminution of value or lack of enforceability of
any security received from the Company, any Guarantor, any
Guaranteeing Subsidiary or any other Person, and including
any other guarantees received by the Trustee;
(vii) any other dealings with the Company, any Guarantor, any
Guaranteeing Subsidiary or any other Person, or with any
security;
(viii) the Trustee's or the Holders' acceptance of compositions
from the Company, any Guarantor or any Guaranteeing
Subsidiary;
(ix) the application by the Holders or the Trustee of all monies
at any time and from time to time received from the Company,
any Guarantor, any Guaranteeing Subsidiary or any other
Person on account of any indebtedness and liabilities owing
by the Company, any Guarantor or any Guaranteeing Subsidiary
to the Trustee or the Holders, in such manner as the Trustee
or the Holders deems best and the changing of such
application in whole or in part and at any time or from time
to time, or any manner of application of collateral, or
proceeds thereof, to all or any of the Indenture
Obligations, or the manner of sale of any collateral;
(x) the release or discharge of the Company, any Guarantor or
any Guaranteeing Subsidiary of the Securities or of any
Person liable directly as surety or otherwise by operation
of law or otherwise for the Securities, other than an
express release in writing given by the Trustee, on behalf
of the Holders, of the liability and obligations of any
Guaranteeing Subsidiary hereunder;
(xi) any change in the name, business, capital structure or
governing instrument of the Company, any Guarantor or any
Guaranteeing
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Subsidiary or any refinancing or restructuring of any of the
Indenture Obligations;
(xii) the sale of the Company's, any Guarantor's or any
Guaranteeing Subsidiary's business or any part thereof,
(xiii) subject to Section 1314 of the Indenture, any merger or
consolidation, arrangement or reorganization of the Company,
any Guarantor or any Guaranteeing Subsidiary, any Person
resulting from the merger or consolidation of the Company,
any Guarantor or any Guaranteeing Subsidiary with any other
Person or any other successor to such Person or merged or
consolidated Person or any other change in the corporate
existence, structure or ownership of the Company, any
Guarantor or any Guaranteeing Subsidiary or any change in
the corporate relationship among the Company, any Guarantor
and any Guaranteeing Subsidiary, or any termination of such
relationship;
(xiv) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership, arrangement, readjustment,
assignment for the benefit of creditors or distribution of
the assets of the Company or its assets or any resulting
discharge of any obligations of the Company (whether
voluntary or involuntary) or of any Guarantor (whether
voluntary or involuntary) or any Guaranteeing Subsidiary
(whether voluntary or involuntary) or the loss of corporate
existence;
(xv) subject to Section 1314 of the Indenture, any arrangement or
plan of reorganization affecting the Company, any Guarantor
or any Guaranteeing Subsidiary;
(xvi) any failure, omission or delay on the part of the Company to
conform or comply with any term of the Indenture;
(xvii) any limitation on the liability or obligations of the
Company or any other Person under the Indenture, or any
discharge, termination, cancellation, distribution,
irregularity, invalidity or unenforceability in whole or in
part of the Indenture;
(xviii) any other circumstance (including any statute of
limitations) that might otherwise constitute a defense
available to, or discharge of, the Company, any Guarantor or
any Guaranteeing Subsidiary; or
(xix) any modification, compromise, settlement or release by the
Trustee, or by operation of law or otherwise, of the
Indenture Obligations or the liability of the Company or any
other obligor under the Securities, in whole or in part, and
any refusal of payment by the Trustee, in whole or in part,
from
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any other obligor or other guarantor in connection with any
of the Indenture Obligations, whether or not with notice to,
or further assent by, or any reservation of rights against,
each of the Guarantors and the Guaranteeing Subsidiaries.
(d) RIGHT TO DEMAND FULL PERFORMANCE. In the event of any demand for
payment or performance by the Trustee from any Guaranteeing Subsidiary
hereunder, the Trustee or the Holders shall have the right to demand its full
claim and to receive all dividends or other payments in respect thereof until
the Indenture Obligations have been paid in full, and the Guaranteeing
Subsidiaries shall continue to be jointly and severally liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under
the Indenture and the Securities. The retention by the Trustee or the Holders of
any security, prior to the realization by the Trustee or the Holders of its
rights to such security upon foreclosure thereon, shall not, as between the
Trustee and any Guaranteeing Subsidiary, be considered as a purchase of such
security, or as payment, satisfaction or reduction of the Indenture Obligations
due to the Trustee or the Holders by the Company or any part thereof. Each
Guaranteeing Subsidiary, promptly after demand, will reimburse the Trustee and
the Holders for all costs and expenses of collecting such amount under, or
enforcing this Guarantee, including, without limitation, the reasonable fees and
expenses of counsel.
(e) WAIVERS.
(i) Each Guaranteeing Subsidiary hereby expressly waives (to the
extent permitted by law) notice of the acceptance of this Guarantee and notice
of the existence, renewal, extension or the nonperformance, non-payment, or
non-observance on the part of the Company of any of the terms, covenants,
conditions and provisions of the Indenture or the Securities or any other notice
whatsoever to or upon the Company, any Guarantor or such Guaranteeing Subsidiary
with respect to the Indenture Obligations, whether by statute, rule of law or
otherwise. Each Guaranteeing Subsidiary hereby acknowledges communication to it
of the terms of this Supplemental Indenture, the Indenture and the Securities
and all of the provisions herein and therein contained and consents to and
approves the same. Each Guaranteeing Subsidiary hereby expressly waives (to the
extent permitted by law) diligence, presentment, protest and demand for payment
with respect to (a) any notice of sale, transfer or other disposition of any
right, title to or interest in the Securities by the Holders or in the
Indenture, (b) any release of any Guaranteeing Subsidiary from its obligations
hereunder resulting from any loss by it of its rights of subrogation hereunder
and (c) any other circumstances whatsoever that might otherwise constitute a
legal or equitable discharge, release or defense of a guarantor or surety or
that might otherwise limit recourse against such Guaranteeing Subsidiary.
(ii) Without prejudice to any of the rights or recourses which the
Trustee or the Holders may have against the Company, each Guaranteeing
Subsidiary hereby expressly waives (to the extent permitted by law) any right to
require the Trustee or the Holders to:
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(a) enforce, assert, exercise, initiate or exhaust any
rights, remedies or recourse against the Company, any
Guarantor, any Guaranteeing Subsidiary or any other
Person under the Indenture or otherwise;
(b) value, realize upon, or dispose of any security of the
Company or any other Person held by the Trustee or the
Holders;
(c) initiate or exhaust any other remedy which the Trustee
or the Holders may have in law or equity; or
(d) mitigate the damages resulting from any default under
the Indenture;
before requiring or becoming entitled to demand payment from such Guaranteeing
Subsidiary under this Guarantee.
(f) THE GUARANTEEING SUBSIDIARIES REMAIN OBLIGATED IN EVENT THE COMPANY IS
NO LONGER OBLIGATED TO DISCHARGE INDENTURE OBLIGATIONS. It is the express
intention of the Trustee and the Guaranteeing Subsidiaries that if for any
reason the Company has no legal existence, is or becomes under no legal
obligation to discharge the Indenture Obligations owing to the Trustee or the
Holders by the Company or if any of the Indenture Obligations owing by the
Company to the Trustee or the Holders becomes irrecoverable from the Company by
operation of law or for any reason whatsoever, this Guarantee and the covenants,
agreements and obligations of the Guaranteeing Subsidiaries contained in this
Section Two shall nevertheless be binding upon the Guaranteeing Subsidiaries, as
principal debtor, until such time as all such Indenture Obligations have been
paid in full to the Trustee and all Indenture Obligations owing to the Trustee
or the Holders by the Company have been discharged, or such earlier time as
Section 402 of the Indenture shall apply to the Securities and the Guarantors
and the Guaranteeing Subsidiaries shall be responsible for the payment thereof
to the Trustee or the Holders upon demand.
(g) FRAUDULENT CONVEYANCE, CONTRIBUTION, SUBROGATION.
(i) Each Guaranteeing Subsidiary, and by its acceptance of the
Indenture each Holder, hereby confirms that it is the intention of all such
parties that the Guarantee by such Guaranteeing Subsidiary pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, the Holders and such Guaranteeing Subsidiary hereby irrevocably agree
that the obligations of such Guaranteeing Subsidiary under its Guarantee shall
be limited to the maximum amount which, after giving effect to all other
contingent and fixed liabilities of such Guaranteeing Subsidiary, and after
giving effect to any collections from or payments made by or on behalf of any
other Guarantor or Guaranteeing Subsidiary in respect of the obligations of such
other Guarantor or Guaranteeing Subsidiary under its Guarantee or pursuant to
its contribution obligations hereunder and under the Indenture, will result in
the obligations of such Guaranteeing Subsidiary under its Guarantee not
constituting such fraudulent transfer or conveyance.
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(ii) Each Guaranteeing Subsidiary that makes a payment or
distribution under its Guarantee shall be entitled to a contribution from each
other Guaranteeing Subsidiary, if any, in a pro rata amount based on the net
assets of each Guarantor and Guaranteeing Subsidiary, determined in accordance
with GAAP.
(iii) Each Guaranteeing Subsidiary hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under federal bankruptcy
law) or otherwise by reason of any payment by it pursuant to the provisions of
this Section Two until payment in full of all Indenture Obligations.
(h) GUARANTEE IS IN ADDITION TO OTHER SECURITY. This Guarantee shall be in
addition to and not in substitution for any other guarantees or other security
which the Trustee may now or hereafter hold in respect of the Indenture
Obligations owing to the Trustee or the Holders by the Company and (except as
may be required by law) the Trustee shall be under no obligation to marshal in
favor of each of the Guaranteeing Subsidiaries any other guarantees or other
security or any moneys or other assets which the Trustee may be entitled to
receive or upon which the Trustee or the Holders may have a claim.
(i) RELEASE OF SECURITY INTERESTS. Without limiting the generality of the
foregoing and except as otherwise provided herein and in the Indenture, each
Guaranteeing Subsidiary hereby consents and agrees, to the fullest extent
permitted by applicable law, that the rights of the Trustee hereunder, and the
liability of the Guaranteeing Subsidiaries hereunder, shall not be affected by
any and all releases for any purpose of any collateral, if any, from the Liens
and security interests created by any collateral document and that this
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Indenture Obligations is rescinded or
must otherwise be returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had not
been made.
(j) NO BAR TO FURTHER ACTIONS. Except as provided by law, no action or
proceeding brought or instituted under this Section 2, Article Thirteen of the
Indenture and this Guarantee and no recovery or judgment in pursuance thereof
shall be a bar or defense to any further action or proceeding which may be
brought under Section Two, Article Thirteen of the Indenture and this Guarantee
by reason of any further default or defaults under Section Two, Article Thirteen
of the Indenture and this Guarantee or in the payment of any of the Indenture
Obligations owing by the Company.
(k) FAILURE TO EXERCISE RIGHTS SHALL NOT OPERATE AS A WAIVER, NO
SUSPENSION OF REMEDIES.
(i) No failure to exercise and no delay in exercising, on the part
of the Trustee or the Holders, any right, power, privilege or remedy under this
Section 2, Article Thirteen of the Indenture and this Guarantee shall operate as
a waiver thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof,
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or the exercise of any other rights, powers, privileges or remedies. The rights
and remedies herein provided for are cumulative and not exclusive of any rights
or remedies provided in law or equity.
(ii) Nothing contained in this Section 2 shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Five of the Indenture or to pursue any rights or
remedies hereunder or under applicable law.
(l) TRUSTEE'S DUTIES; NOTICE TO TRUSTEE.
(i) Any provision in this Section 2 or elsewhere in the Indenture
allowing the Trustee to request any information or to take any action authorized
by, or on behalf of any Guaranteeing Subsidiary, shall be permissive and shall
not be obligatory on the Trustee except as the Holders may direct in accordance
with the provisions of the Indenture or where the failure of the Trustee to
request any such information or to take any such action arises from the
Trustee's negligence, bad faith or willful misconduct.
(ii) The Trustee shall not be required to inquire into the
existence, powers or capacities of the Company, any Guarantor, any Guaranteeing
Subsidiary or the officers, directors or agents acting or purporting to act on
their respective behalf.
(m) SUCCESSORS AND ASSIGNS. All terms, agreements and conditions of this
Section 2 shall extend to and be binding upon each Guaranteeing Subsidiary and
its successors and permitted assigns and shall enure to the benefit of and may
be enforced by the Trustee and its successors and assigns, PROVIDED, HOWEVER,
that the Guaranteeing Subsidiaries may not assign any of their rights or
obligations hereunder other than in accordance with Article Eight of the
Indenture.
(n) RELEASE OF GUARANTEE.
(i) Concurrently with the payment in full of all of the Indenture
Obligations, the Guarantors shall be released from and relieved of their
obligations under this Section 2. Upon the delivery by the Company to the
Trustee of an Officers' Certificate and, if requested by the Trustee, an Opinion
of Counsel to the effect that the transaction giving rise to the release of this
Guarantee was made by the Company in accordance with the provisions of the
Indenture and the Securities, the Trustee shall execute any documents reasonably
required in order to evidence the release of the Guaranteeing Subsidiaries from
their obligations under this Guarantee. If any of the Indenture Obligations are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of the Guaranteeing Subsidiaries under this Guarantee shall be
revived and reinstated as if this Guarantee had not been terminated until such
time as the Indenture Obligations are paid in full, and each Guaranteeing
Subsidiary shall enter into an amendment to this Guarantee, reasonably
satisfactory to the Trustee, evidencing such revival and reinstatement.
(ii) This Guarantee shall terminate with respect to each
Guaranteeing Subsidiary and shall be automatically and unconditionally released
and discharged as provided in Section 1013(c) of the Indenture.
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(o) EXECUTION AND DELIVERY OF GUARANTEE. Each of the Guaranteeing
Subsidiaries agrees that their Guarantee hereunder shall remain in full force
and effect notwithstanding any failure to endorse on each Note a notation of
their Guarantee. Pursuant to Section 1315(b) of the Indenture, each Guaranteeing
Subsidiary agrees to be subject to the provisions (including the representations
and warranties) of the Indenture as of the date of this Supplemental Indenture
as if named as a Guarantor therein.
SECTION 3. AMENDMENT TO SECTION 1314 OF THE INDENTURE. The cross-reference
at the end of the second paragraph of Section 1314 of the Indenture shall be
amended to read as a cross reference to Section 1013(c) of the Indenture. All
other terms and provisions of the Indenture, except as herein amended and
supplemented, shall remain in full force and effect.
SECTION 4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
SECTION 5. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
SECTION 7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Company.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
12
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the 31st day of December,
1999.
THE COMPANY:
------------
SONIC AUTOMOTIVE, INC.
By: /s/ B. Scott Smith
-----------------------
Name: B. Scott Smith
Title: President
GUARANTEEING SUBSIDIARIES:
--------------------------
SONIC AUTOMOTIVE-BONDESEN, INC.
SONIC - 1720 MASON AVE., DB, LLC
SONIC AUTOMOTIVE - 6008 N. DALE MABRY, FL, INC.
SONIC AUTOMOTIVE - 9103 E. INDEPENDENCE, NC, LLC
SONIC - 2185 CHAPMAN RD., CHATTANOOGA, LLC
SONIC - CLASSIC DODGE, INC.
SONIC - FM AUTOMOTIVE, LLC
SONIC - FM, INC.
SONIC - FM NISSAN, INC.
SONIC - FM VW, INC.
SONIC - FREELAND, INC.
SONIC - INTEGRITY DODGE LV, LLC
SONIC - LLOYD NISSAN, INC.
SONIC - LLOYD PONTIAC-CADILLAC, INC.
SONIC -MANHATTAN FAIRFAX, INC.
SONIC - MANHATTAN WALDORF, INC.
SONIC - NEWSOME AUTOMOTIVE, LLC
SONIC - NEWSOME CHEVROLET WORLD, INC.
SONIC - NEWSOME OF FLORENCE, INC.
SONIC - NORTH CHARLESTON, INC.
SONIC - NORTH CHARLESTON DODGE, INC.
SONIC - ROCKVILLE IMPORTS, INC.
SONIC - ROCKVILLE MOTORS, INC.
SONIC - SHOTTENKIRK, INC.
SONIC - SUPERIOR OLDSMOBILE, LLC
SONIC OF TEXAS, INC.
SONIC-VOLVO LV, LLC
[SIGNATURES CONTINUED ON NEXT PAGE]
SONIC - WILLIAMS BUICK, INC.
13
SONIC - WILLIAMS CADILLAC, INC.
FIRSTAMERICA AUTOMOTIVE, INC.
AUTOBAHN, INC.
DON LUCAS INTERNATIONAL, INC.
FA SERVICE CORPORATION
FAA AUTO FACTORY, INC.
FAA BEVERLY HILLS, INC.
FAA CAPITOL N, INC.
FAA CONCORD H, INC.
FAA CONCORD N, INC.
FAA CONCORD T, INC.
FAA DEALER SERVICES, INC.
FAA DUBLIN N, INC.
FAA DUBLIN VWD, INC.
FAA HOLDING CORP.
FAA LAS VEGAS H, INC.
FAA MARIN D, INC.
FAA MARIN F, INC.
FAA MONTEREY F, INC.
FAA POWAY D, INC.
FAA POWAY G, INC.
FAA POWAY H, INC.
FAA POWAY T, INC.
FAA SAN BRUNO, INC.
FAA SANTA MONICA V, INC.
FAA SERRAMONTE H, INC.
FAA SERRAMONTE L, INC.
FAA SERRAMONTE, INC.
FAA STEVENS CREEK, INC.
FAA TORRANCE CPJ, INC.
FAA WOODLAND HILLS VW, INC.
FRANCISCAN MOTORS, INC.
KRAMER MOTORS INCORPORATED
LUCAS DEALERSHIP GROUP, INC.
SANTA CLARA IMPORTED CARS, INC.
SMART NISSAN, INC.
STEVENS CREEK CADILLAC, INC.
TRANSCAR LEASING, INC.
WINDWARD, INC.
SONIC - WILLIAMS IMPORTS, INC.
[SIGNATURES CONTINUED ON NEXT PAGE]
SONIC - WILLIAMS MOTORS, LLC
VILLAGE IMPORTED CARS, INC.
14
By: /s/ B. Scott Smith
----------------------------------
Name: B. Scott Smith
Title: Authorized Signatory
Attest: /s/ Theodore M. Wright
------------------------------
Name: Theodore M. Wright
Title: Authorized Signatory
SONIC - GLOBAL IMPORTS, L.P.
By: Sonic Automotive of Georgia, Inc., its general partner
By: /s/ B. Scott Smith
-----------------------------------
Name: B. Scott Smith
Title: Vice President
SONIC - SAM WHITE OLDSMOBILE, L.P.
SONIC - SAM WHITE NISSAN, L.P.
SONIC - LUTE RILEY, L.P.
SONIC - READING, L.P.
SONIC - CAMP FORD, L.P.
SONIC AUTOMOTIVE - 5221 I-10 EAST, TX, L.P.
SONIC AUTOMOTIVE - 4701 I-10 EAST, TX, L.P.
SONIC AUTOMOTIVE - 3401 N. MAIN, TX, L.P.
SONIC AUTOMOTIVE OF TEXAS, L.P.
By: Sonic of Texas, Inc. their general partner
By: /s/ B. Scott Smith
-----------------------------------
Name: B. Scott Smith
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
15
GUARANTORS:
-----------
TOWN AND COUNTRY FORD, INC.
MARCUS DAVID CORPORATION
FRONTIER OLDSMOBILE-CADILLAC, INC.
SONIC DODGE, LLC
SONIC CHRYSLER-PLYMOUTH-JEEP, LLC
FORT MILL FORD, INC.
TOWN AND COUNTRY CHRYSLER-PLYMOUTH-JEEP OF
ROCK HILL, INC.
FORT MILL CHRYSLER-PLYMOUTH-DODGE, INC.
SONIC AUTOMOTIVE OF NEVADA, INC.
SONIC AUTOMOTIVE OF TENNESSEE, INC.
SONIC AUTOMOTIVE - 6025 INTERNATIONAL DRIVE, LLC
SONIC AUTOMOTIVE OF NASHVILLE, LLC
SONIC AUTOMOTIVE OF CHATTANOOGA, LLC
TOWN AND COUNTRY JAGUAR, LLC
TOWN AND COUNTRY CHRYSLER-PLYMOUTH-JEEP, LLC
TOWN AND COUNTRY DODGE OF CHATTANOOGA, LLC
SONIC AUTOMOTIVE - 2490 SOUTH LEE HIGHWAY, LLC
TOWN AND COUNTRY FORD OF CLEVELAND, LLC
FREEDOM FORD, INC.
SONIC AUTOMOTIVE - HWY. 153 AT SHALLOWFORD
ROAD, CHATTANOOGA, INC.
SONIC AUTOMOTIVE 5260 PEACHTREE INDUSTRIAL
BLVD., LLC
SONIC AUTOMOTIVE OF GEORGIA, INC.
SONIC AUTOMOTIVE - CLEARWATER, INC.
SONIC AUTOMOTIVE 21699 U.S. HWY 19 N., INC.
SONIC AUTOMOTIVE COLLISION CENTER OF
CLEARWATER, INC.
SONIC AUTOMOTIVE - 1400 AUTOMALL DRIVE,
COLUMBUS, INC.
SONIC AUTOMOTIVE - 1455 AUTOMALL DRIVE,
COLUMBUS, INC.
SONIC AUTOMOTIVE - 1495 AUTOMALL DRIVE,
COLUMBUS, INC.
SONIC AUTOMOTIVE - 1500 AUTOMALL DRIVE,
COLUMBUS, INC.
SONIC AUTOMOTIVE - 3700 WEST BROAD STREET,
COLUMBUS, INC.
[SIGNATURES CONTINUED ON NEXT PAGE]
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SONIC AUTOMOTIVE - 4000 WEST BROAD STREET,
COLUMBUS, INC.
SONIC AUTOMOTIVE 2424 LAURENS RD.,
GREENVILLE, INC.
SONIC AUTOMOTIVE 2752 LAURENS RD.,
GREENVILLE, INC.
SONIC AUTOMOTIVE - 5585 PEACHTREE
INDUSTRIAL BLVD.., LLC
CAPITOL CHEVROLET AND IMPORTS, INC.
SONIC AUTOMOTIVE - 1919 N. DIXIE HWY., NSB, INC.
SONIC AUTOMOTIVE - 1307 N. DIXIE HWY., NSB, INC.
SONIC AUTOMOTIVE - 3741 S. NOVA RD., PO, INC.
SONIC AUTOMOTIVE - 241 RIDGEWOOD AVE., HH, INC.
SONIC AUTOMOTIVE - 1720 MASON AVE., DB, INC.
By: /s/ B. Scott Smith
-----------------------------
Name: B. Scott Smith
Title: Authorized Signatory
Attest: /s/ Theodore M. Wright
--------------------------
Name: Theodore M. Wright
Title: Authorized Signatory
SONIC PEACHTREE INDUSTRIAL BLVD., L.P.
By: Sonic Automotive of Georgia, Inc., its general partner
By: /s/ B. Scott Smith
------------------------
Name: B. Scott Smith
Title: Vice President
[SIGNATURES CONTINUED ON NEXT PAGE]
17
TRUSTEE:
--------
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee.
By: /S/ LAURIE HOWARD
----------------------------------------
Authorized Signatory
18