SUPPLEMENTAL
INDENTURE (this “ Supplemental Indenture ”),
dated as of August 12, 2008, among AutoNation, Inc., a
Delaware corporation (the “ Company ”), AN
Collision Center of North Houston, Inc.; AN Imports of Spokane,
Inc., AN Luxury Imports of Spokane, Inc.; and AutoNation Oxnard
Venture Holdings, Inc. (collectively, the “Guaranteeing
Subsidiaries”) , each of which is an indirect
subsidiaries of the Company (or its permitted successor), and Wells
Fargo Bank, National Association, as trustee under each indenture
referred to below (the “ Trustee ”)
.
WHEREAS, the
Company, has heretofore executed and delivered to the Trustee an
indenture, dated as of August 10, 2001 (and supplemented as of
April 30, 2002, November 7, 2002, March 29, 2004,
November 3, 2005, April 5, 2006, March 19, 2007,
October 18, 2007 and March 11, 2008), providing for the
issuance of 9% Senior Notes due 2008 (the “9% Senior
Notes”);
WHEREAS, the
Company has heretofore executed and delivered to the Trustee an
indenture, dated as of April 12, 2006 (and supplemented as of
August 17, 2006, January 24, 2007, October 18, 2007
and March 11, 2008), providing for the issuance of Floating
Rate Senior Notes due 2013 and 7% Senior Notes due 2014 (together
with the 9% Senior Notes, the “ Notes
”);
WHEREAS, each
indenture provides that the Guaranteeing Subsidiaries shall execute
and deliver to the Trustee a supplemental indenture pursuant to
which the Guaranteeing Subsidiaries shall unconditionally guarantee
all of the Company’s obligations under the Notes and each
indenture on the terms and conditions set forth herein (the “
Guarantee ”); and
WHEREAS, pursuant
to Section 9.1 of each indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.
NOW THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
Company, the Guaranteeing Subsidiaries and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders
of the Notes as follows:
1.
Capitalized Terms . Capitalized terms used herein without
definition shall have the meanings assigned to them in each
indenture.
2.
Agreement to Guarantee . The Guaranteeing Subsidiaries
hereby agrees as follows:
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(a)
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To
jointly and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and
enforceability of each indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
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(i)
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the
principal of and interest on the Notes will be promptly paid by the
Company in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid by the Company in full or
performed by the Company, all in accordance with the terms hereof
and thereof; and
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(ii)
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in
case of any extension of time of payment or renewal of any Notes or
any of such other obligations, that same will be promptly paid by
the Company in full when due or performed by the Company in
accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
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Failing payment when due by the
Company of any amount so guaranteed or any performance so
guaranteed which failure continues for three days after demand
therefor is made to the Company for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same
immediately.
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(b)
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The
obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or each
indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against
the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor.
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(c)
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The
following is hereby waived: diligence, presentment, demand of
payment (except as specifically provided in (a) above), filing
of claims with a court in the event of insolvency or bankruptcy of
the Company, any right to require a proceeding first against the
Company, protest, notice and all demands (except as specifically
provided in (a) above) whatsoever.
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(d)
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This Guarantee shall not be
discharged except (i) by complete performance of the
obligations contained in the Notes and the Indentu
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