SUPPLEMENTAL INDENTURE
Exhibit 4.2
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of March 11, 2008, among
AutoNation, Inc., a Delaware corporation (the “Company”), AN Motors of Dallas, Inc., AN Western
Region Management, LLC f/k/a AN California Region Management, LLC and AN Central Region Management,
LLC f/k/a AN East Central Region Management, LLC (the “Guaranteeing Subsidiary”), which are
indirect subsidiaries of the Company (or its permitted successor), and Xxxxx Fargo Bank, National
Association, as trustee under each indenture referred to below (the “Trustee”).
W I T N E S S E T H
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 and October 18, 2007), 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 and October 18,
2007), 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 Subsidiary shall execute and deliver to
the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary 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
Subsidiary 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 Subsidiary hereby agrees as follows:
| (a) | 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: |
| (i) | 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 | ||
| (ii) | 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. |
| 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. |
| (b) | 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. | ||
| (c) | 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. | ||
| (d) | This Guarantee shall not be discharged except (i) by complete performance of the obligations contained in the Notes and each indenture or (ii) as provided in Section 5 hereof. | ||
| (e) | If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors, or any Custodian, Trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. | ||
| (f) | The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. | ||
| (g) | As between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of each indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of each indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee, failing payment when due by the Company which failure continues for three days after demand therefor is made to the Company. | ||
| (h) | The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Guarantee. |
3. Execution and Delivery. The Guaranteeing Subsidiary agrees that the Guarantees
shall remain in full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
4. Guaranteeing Subsidiaries May Consolidate, Etc. on Certain Terms. No Guaranteeing
Subsidiary may sell nor otherwise dispose of all or substantially all of its assets, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Guarantor except to the extent
limited by the provisions set forth in each indenture, including, without limitation, Section 5.1
of each indenture.
5. Releases. The Guarantee of the Guaranteeing Subsidiary will be released in
accordance with the provisions set forth in each indenture, including, without limitation, Section
10.4 of each indenture. The Trustee will provide any written confirmation or evidence of the
termination of such Guarantee as reasonably required by the Company. Any Guarantor not released
from its obligations under its Guarantee shall remain liable for the full amount of principal of
and interest on the Notes and for the other obligations of any Guarantor under each indenture as
provided in Article 10 of each indenture.
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6. No Recourse Against Others. No director, officer, employee, incorporator,
stockholder or agent of any of the Guaranteeing Subsidiary, as such, shall have any liability for
any obligations of the Company or the Guaranteeing Subsidiary under the Notes, each indenture, any
Guarantees or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the federal securities
laws.
7. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND
BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
8. 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.
9. Effect of Headings. The Section headings herein are for convenience only and shall
not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity, legality 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.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
| AUTONATION, INC. |
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| By: | /s/ X. Xxxxxxx X. Xxxxxxx | |||
| Name: | X. Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President, Deputy General Counsel | |||
| AN Motors of Dallas, Inc. AN Western Region Management, LLC AN Central Region Management, LLC |
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| By: | /s/ X. Xxxxxxx X. Xxxxxxx | |||
| Name: | X. Xxxxxxx X. Xxxxxxx | |||
| Title: | Assistant Secretary | |||
[SIGNATURES CONTINUE ON NEXT PAGE]
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| Xxxxx Fargo Bank, National Association, As Trustee |
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| By: | /s/ Xxxxxx X. X’Xxxxxxx | |||
| Name: | Xxxxxx X. X’Xxxxxxx | |||
| Title: | Vice President | |||
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