AutoNation 2009 Annual Report Download - page 97

Exhibit 4.9
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of February 8, 2010, among AutoNation, Inc., a Delaware corporation (the
“Company”) and Auto Holding, LLC f/k/a Auto Holding Corp., AutoNation Financial Services, LLC f/k/a AutoNation Financial Services Corp., AN
Luxury Imports of Spokane, Inc., AN Collision Center of Tempe, Inc. f/k/a Pitre Isuzu-Subaru-Hyundai of Scottsdale, Inc. and AN Luxury Imports of
Phoenix, Inc. f/k/a AN Luxury Imports of Spokane, Inc. (the “ Guaranteeing Subsidiaries”), which are indirect subsidiaries of the Company (or its permitted
successor), and Wells Fargo Bank, National Association, as trustee under the 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 April 12, 2006, which has been supplemented as
of August 17, 2006, January 24, 2007, October 18, 2007, March 11, 2008, August 12, 2008 and February 6, 2009 (as amended, the “Indenture”),
providing for the issuance of Floating Rate Senior Notes due 2013 and 7% Senior Notes due 2014 (the “ Notes”);
WHEREAS, the 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 the Indenture on the terms and conditions
set forth herein (the “Guarantee”); and
WHEREAS, pursuant to Section 9.1 of the 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 the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby agree 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 the 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 the 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.