Exhibit 4.1
===============================================================================
CUSIP: 05329W AA 0
9% Senior Notes due 2008
No.: 1 $449,030,000
AutoNation, Inc.
promises to pay to CEDE & CO. or registered assigns, the principal sum of
FOUR HUNDRED FORTY NINE MILLION THIRTY THOUSAND Dollars on August 1, 2008.
Interest Payment Dates: February 1 and August 1, commencing February 1, 2002.
Record Dates: January 15 and July 15.
Dated: August 10, 2001
AUTONATION, INC.
By: ______________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
Wells Fargo Bank Minnesota, National Association,
as Trustee
By: _________________________
Authorized Signatory
================================================================================
9% Senior Notes due 2008
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS
OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.6(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. Interest. AutoNation, Inc. promises to pay interest on the
principal amount of this Note at 9% per annum from February 1, 2002 until
maturity and shall pay the Liquidated Damages payable pursuant to Section
2(e) of the Registration Rights Agreement referred to below. The Company
will pay interest and Liquidated Damages semi-annually on February 1 and
August 1 of each year, or if any such day is not a Business Day, on the
next succeeding Business Day (each an "Interest Payment Date"). Interest on
the Notes will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of original issuance;
provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further,
that the first Interest Payment Date shall be February 1, 2002. The Company
shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand to the extent lawful at a rate that is 1% per annum
in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest and Liquidated Damages (without regard to
any applicable grace periods) from time to time on demand at the same rate
to the extent lawful. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the January 15 or
July 15 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. Principal, premium, if any, and interest and Liquidated
Damages on the Notes will be payable at the office or agency of the Company
maintained for such purpose or, at the option of the Company, payment of
interest and Liquidated Damages may be made by check mailed to the Holders
of the Notes at their respective addresses set forth in the register of
Holders of Notes. Until otherwise designated by the Company, the Company's
office or agency in New York will be the office of the Trustee maintained
for such purpose. The Notes will be issued in denominations of $1,000 and
integral multiples thereof. Such payment shall be in such coin or currency
of the United States of America as at the time of payment is legal tender
for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Wells Fargo Bank
Minnesota, National Association, the Trustee under the Indenture, will act
as Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its
Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture
dated as of August 10, 2001 (as amended, the "Indenture") between the
Company, each of the Guarantors named in the Indenture and the Trustee. The
terms of the Notes include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code ss.ss. 77aaa-77bbbb) (the 11 "TIA"). The Notes are
subject to all such terms, and Holders are referred to the Indenture and
the TIA for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling.
5. Optional Redemption. Except as described below, the Notes will
not be redeemable by the Company prior to maturity.
At any time prior to August 1, 2004, the Company, at its option,
may use the net cash proceeds of one or more Public Equity Offerings to
redeem up to an aggregate of 35% of the aggregate principal amount of Notes
issued under the Indenture (including subsequent Series Notes, if any) at a
redemption price equal to 109% of the aggregate principal amount of the
Notes redeemed, plus accrued and unpaid interest, if any, to the redemption
date (subject to the rights of Holders of record on relevant record dates
to receive interest due on an interest payment date). At least 65% of the
aggregate principal amount of Notes issued under the Indenture must remain
outstanding immediately after the occurrence of such redemption. In order
to effect this redemption, the Company must complete such redemption within
60 days of the closing of the Public Equity Offering.
"Public Equity Offering" means an underwritten public offering of
common stock (other than Redeemable Capital Stock) of the Company with
gross cash proceeds to the Company of at least $50 million pursuant to a
registration statement that has been declared effective by the Commission
pursuant to the Securities Act (other than a registration statement on Form
S-4 (or any successor form covering substantially the same transactions),
Form S-8 (or any successor form covering substantially the same
transactions) or otherwise relating to equity securities issuable under any
employee benefit plan of the Company).
6. Repurchase Upon Change of Control. If a Change of Control
occurs, each Holder of Notes will have the right to require that the
Company purchase all or any part (in integral multiples of $1,000) of such
Holder's Notes pursuant to the offer described below (the "Change of
Control Offer"). In the Change of Control Offer, the Company will offer to
purchase all of the Notes, at a purchase price (the "Change of Control
Purchase Price") in cash in an amount equal to 101% of the principal amount
of such Notes (the "Change of Control Payment"), plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Purchase
Date") (subject to the rights of holders of record on relevant record dates
to receive interest due on an interest payment date).
Within 30 days of any Change of Control or, at the Company's
option, prior to such Change of Control but after it is publicly announced,
the Company must notify the Trustee and give written notice of the Change
of Control to each Holder of Notes, by first-class mail, postage prepaid,
at his address appearing in the security register. The notice must state,
among other things,
(i) that a Change of Control has occurred and the date of
such event;
(ii) the circumstances and relevant facts regarding such
Change of Control, including information with respect to
pro forma historical income, cash flow and capitalization
after giving effect to such Change of Control;
(iii) the purchase price and the purchase date which shall be
fixed by the Company on a Business Day no earlier than 30
days nor later than 60 days from the date the notice is
mailed, or such later date as is necessary to comply with
requirements under the Exchange Act;
(iv) that any Note not tendered will continue to accrue
interest;
(v) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for
payment pursuant to the Change of Control Offer will
cease to accrue interest after the Change of Control
Purchase Date; and
(vi) other procedures that a Holder of Notes must follow to
accept a Change of Control Offer or to withdraw
acceptance of the Change of Control Offer.
7. Notice of Optional Redemption. Notice of redemption pursuant to
Paragraph 5 of this Note will be mailed by first class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Notes to be redeemed at its registered address. Notices of redemption may
not be conditional. Notes in denominations larger than $1,000 may be
redeemed in part. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the
principal amount thereof to be redeemed. A new Note in principal amount
equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Note. On and after the
redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
8. Denominations, Transfer, Exchange. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes
and fees required by law or permitted by the Indenture. The Company or the
Registrar is not required to transfer or exchange any Note selected for
redemption. Also, the Company or the Registrar is not required to transfer
or exchange any Notes for a period of 15 days before the mailing of a
notice of redemption of Notes to be redeemed.
9. Persons Deemed Owners. The registered Holder of a Note may be
treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture, the Notes or the Guarantees may be amended or
supplemented with the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding voting as a single class
(including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes) and subject to
Sections 6.4 and 6.7, any existing Default or Event of Default (other than
a Default or Event of Default in the payment of the principal of, premium,
if any, Liquidated Damages, if any, or interest on the Notes, except a
payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Indenture, the Notes or the
Guarantees may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes (including, without
limitation, consents obtained in connection with a purchase of, or tender
offer or exchange offer for, Notes). Without the consent of any Holder of
Notes, the Company and the Trustee may amend or supplement this Indenture
or the Notes: (i) to evidence the succession of another Person to the
Company, a Guarantor or any other obligor on the Notes, and the assumption
by any such successor of the covenants of the Company or such obligor or
Guarantor in the Indenture and in the Notes and in any Guarantee in
accordance with Article 5 of the Indenture; (ii) to add to the covenants of
the Company, any Guarantor or any other obligor upon the Notes for the
benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Company or any Guarantor or any other obligor upon the
Notes, as applicable, in this Indenture, in the Notes or in any Guarantee;
(iii) to cure any ambiguity, or to correct or supplement any provision in
this Indenture, the Notes or any Guarantee which may be defective or
inconsistent with any other provision in this Indenture, the Notes or any
Guarantee or make any other provisions with respect to matters or questions
arising under this Indenture, the Notes or any Guarantee; provided that, in
each case, such provisions shall not adversely affect the interest of the
Holders of the Notes; (iv) to comply with the requirements of the
Commission in order to effect or maintain the qualification of this
Indenture under this TIA; (v) to add a Guarantor under this Indenture; (vi)
to evidence and provide the acceptance of the appointment of a successor
Trustee under this Indenture; or (vii) to mortgage, pledge, hypothecate or
grant a security interest in favor of the Trustee for the benefit of the
Holders of the Notes as additional security for the payment and performance
of the Company's and any Guarantor's obligations under this Indenture, in
any property, or assets, including any of which are required to be
mortgaged, pledged or hypothecated, or in which a security is required to
be granted to the trustee pursuant to this Indenture or otherwise.
11. Defaults and Remedies. If an Event of Default occurs and is
continuing, the principal of all Notes then outstanding, plus all accrued
and unpaid interest, if any, to and including the date the Notes are paid,
may be declared due and payable in the manner and with the effect provided
in the Indenture. Holders of Notes may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received indemnity
reasonably satisfactory to it. The Indenture permits, subject to certain
limitations therein provided, Holders of a majority in aggregate principal
amount of the Notes then outstanding to direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders of Notes
notice of any continuing Default or Event of Default (except a Default in
payment of principal or interest when due, for any reason or a Default in
compliance with Article Five of the Indenture) if it determines that
withholding notice is in their interest.
12. Trustee Dealings with the Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from,
and perform services for the Company or its Affiliates, and may otherwise
deal with the Company or its Affiliates, as if it were not the Trustee;
however, if it acquires any conflicting interest it must eliminate such
conflict within 90 days, apply to the Commission for permission to continue
or resign.
13. No Recourse Against Others. A director, officer, employee,
incorporator or stockholder, of the Company or any Guarantor, as such,
shall not have any liability for any obligations of the Company or any
Guarantor under the Notes, the Indenture, the Guarantees, the Registration
Rights Agreement or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
14. Guarantees. Assuming certain conditions described in the
Indenture have been satisfied, this Note will be entitled to the benefits
of certain Guarantees made for the benefit of the Holders. Reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations thereunder of the Guarantors,
the Trustee and the Holders.
15. Authentication. This Note shall not be valid or obligatory
until authenticated by the manual signature of the Trustee or an
authenticating agent.
16. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. Additional Rights of Holders of Notes. In addition to the
rights provided to Holders of Notes under the Indenture, Holders of Notes
shall have all the rights set forth in the Exchange and Registration Rights
Agreement dated as of the date of the Indenture, between the Company and
the parties named on the signature pages thereof (the "Registration Rights
Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
19. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS NOTE.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to: AutoNation, Inc., AutoNation Tower, 110
S.E. 6th Street, Fort Lauderdale, Florida 33301, Telecopier No.: (954)
769-6340, Attention: General Counsel.
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:__________________
Your Signature:
____________________________________
(Sign exactly as your name appears
on the Note)
SIGNATURE GUARANTEE
_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.10 or Section 4.15 of the Indenture,
state the amount you elect to have purchased:
$__________________________
________________________________________________________________________________
Date: Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No:______________________________
SIGNATURE GUARANTEE
_____________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:
Principal Amount
Amount of Amount of of this Signature of
decrease in increase in Global Note authorized
Principal Principal following such signatory of
Amount of Amount of decrease (or Trustee or
this Global Note this Global Note increase) Custodian
---------------- ---------------- ------------- ---------
Date of
Exchange
- ---------
AFFIDAVIT OF OUT-OF-STATE EXECUTION
STATE OF ILLINOIS
COUNTY OF COOK
I hereby certify that on this ____ day of August, 2001, before me,
an officer duly authorized in the County and State aforesaid to take
acknowledgments, personally appeared Marc L. Bourhis, as Vice President and
Treasurer of AutoNation, Inc., a Delaware corporation (the "Company"), and
as Treasurer or authorized signatory of each of the subsidiaries of the
Company party to the hereinafter defined Indenture (the "Guarantors"), who
is personally known to me or who has produced _______________ as
identification, who did/did not take an oath, who is known to me to be the
person who executed the Note to which this Affidavit is attached (the
"Note") on behalf of the Company and who executed the Guarantee included
within such Note on behalf of each of the Guarantors in Chicago, Illinois,
and who acknowledged before me that he executed the same. Capitalized terms
used but not defined herein shall be used as defined in the Indenture,
dated as of August 10, 2001 (the "Indenture"), by and among the Company,
the Guarantors and Wells Fargo Bank Minnesota, National Association, as
trustee (the "Trustee").
________________________
Notary Public
________________________
Print Name
My Commission Expires: _____________________
AFFIDAVIT OF OUT-OF-STATE RECEIPT AND ACCEPTANCE
STATE OF ILLINOIS )
COUNTY OF COOK )
Before me this day personally appeared _________________
("Affiant"), who being personally sworn, deposes and says that:
1. Affiant is a _________________ of Wells Fargo Bank Minnesota,
National Association, as trustee (the "Trustee") under the Indenture, dated
as of August 10, 2001 (the "Indenture"), by and among AutoNation, Inc., a
Delaware corporation (the "Company"), the subsidiaries of the Company party
thereto (the "Guarantors") and the Trustee; capitalized terms used but not
defined herein shall be used as defined in the Indenture.
2. The Trustee is the authorized agent for each of the initial
purchasers under the Purchase Agreement, dated August 1, 2001 (the
"Purchase Agreement"), by and among Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Banc of America Securities LLC, J.P.
Morgan Securities Inc., First Union Securities, Inc. and Comerica
Securities, Inc., as initial purchasers (the "Initial Purchasers"), the
Company, and the Guarantors relating to the sale by the Company to the
Initial Purchasers of $450,000,000 aggregate principal amount of its 9%
Senior Notes Due 2008, for the purpose of receiving delivery of and
accepting of the Note to which this Affidavit is attached (the "Note") and
the Guarantee included within such Note (the "Guarantee") on behalf of the
Initial Purchasers and on behalf of the Trustee.
3. The Note and the Guarantee were executed in the City of
Chicago, and the State of Illinois by Marc L. Bourhis as Vice President and
Treasurer of the Company and as Treasurer or authorized signatory of each
of the Guarantors.
4. On the date hereof, Affiant received delivery of and accepted
the Note and the Guarantee on behalf of the Trustee and on behalf of the
Initial Purchasers within the City of Chicago, and the State of Illinois.
FURTHER AFFIANT SAYETH NOT:
Dated: August ___, 2001
_________________________________
Print Name:______________________
THE FOREGOING instrument was acknowledged before me this ____ day
of August, 2001, by ____________________, who is personally known to me or
who has produced _____________________ as identification and who did/did
not take an oath.
________________________
Notary Public
________________________
Print Name
My Commission Expires: _____________________