SECOND SUPPLEMENTAL INDENTURE, dated as of January 22, 2008 (this Supplemental Indenture), among Axle Holdings, Inc. (the Subsidiary Guarantor), KAR Holdings, Inc. a Delaware corporation (the Company, which term includes its successors and assigns), each other then existing Guarantor under the Indenture referred to below (the Existing Guarantors and, together with the Subsidiary Guarantor, the Guarantors), and Wells Fargo Bank, National Association, as trustee (the Trustee) under the Indenture referred to below.
WHEREAS, the Company, the Existing Guarantors and the Trustee have heretofore become parties to an Indenture, dated as of April 20, 2007 (as amended, supplemented or otherwise modified, the Indenture), providing for the issuance of 10% Senior Subordinated Notes due 2015 of the Company (the Notes);
WHEREAS, Section 1308 of the Indenture provides that the Company is required to cause the Subsidiary Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantor shall guarantee the Companys Subsidiary Guaranteed Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein and in Articles XIII and XV of the Indenture;
WHEREAS, the Subsidiary Guarantor desires to enter into such supplemental indenture for good and valuable consideration, including substantial economic benefit in that the financial performance and condition of the Subsidiary Guarantor is dependent on the financial performance and condition of the Company, the obligations hereunder of which the Subsidiary Guarantor has guaranteed, and on the Subsidiary Guarantors access to working capital through the Companys access to revolving credit borrowings under the Senior Credit Agreement; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Subsidiary Guarantor, the Company, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
1. Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recital hereto are used herein as therein defined. The words herein, hereof and hereby and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular Section hereof.
2. Agreement to Guarantee. The Subsidiary Guarantor hereby agrees, jointly and severally with the other Guarantors, irrevocably, fully and unconditionally, to guarantee the Subsidiary Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article XIII of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Subsidiary Guarantor.
3. Subordination. The obligation of the Subsidiary Guarantor under this Supplemental Indenture is subordinated in right of payment, to the extent and in the manner provided in Article XV of the Indenture, to the prior payment in full of all future Senior Indebtedness of the Subsidiary Guarantor.
4. Termination, Release and Discharge. The Subsidiary Guarantors Subsidiary Guarantee shall terminate and be of no further force or effect, and the Subsidiary Guarantor shall be released and discharged from all obligations in respect of the Subsidiary Guarantee, as and when provided in Section 1303 of the Indenture.
5. Parties. Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of the Subsidiary Guarantors Subsidiary Guarantee or any provision contained herein or in Article XIII of the Indenture.
6. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
7. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
8. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
9. Headings. The Section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
AXLE HOLDINGS, INC.
as Subsidiary Guarantor
|Sidney L. Kerley|
|Vice President and General Counsel|
KAR HOLDINGS, INC.
|Executive Vice President and Secretary|
|ADESA CORPORATION, LLC|
|A.D.E. OF ARK-LA-TEX, INC.|
|A.D.E. OF KNOXVILLE, LLC|
|ADESA ARK-LA-TEX, LLC|
|ADESA ARKANSAS, LLC|
|ADESA ATLANTA, LLC|
|ADESA BIRMINGHAM, LLC|
|ADESA CALIFORNIA, LLC|
|ADESA CHARLOTTE, LLC|
|ADESA COLORADO, LLC|
|ADESA DEALER SERVICES, LLC|
|ADESA DES MOINES, LLC|
|ADESA FLORIDA, LLC|
|ADESA IMPACT TEXAS, LLC|
|ADESA INDIANAPOLIS, LLC|
|ADESA LANSING, LLC|
|ADESA LEXINGTON, LLC|
|ADESA MEXICO, LLC|
|ADESA MISSOURI, LLC|
|ADESA NEW JERSEY, LLC|
|ADESA NEW YORK, LLC|
|ADESA OHIO, LLC|
|ADESA OKLAHOMA, LLC|
|ADESA PENNSYLVANIA, LLC|
|ADESA PHOENIX, LLC|
|ADESA SAN DIEGO, LLC|
Senior Subordinated Second Supplemental Indenture
ADESA-SOUTH FLORIDA, LLC
ADESA SOUTHERN INDIANA, LLC
|ADESA TEXAS, INC.|
|ADESA VIRGINIA, LLC|
|ADESA WASHINGTON, LLC|
|ADESA WISCONSIN, LLC|
|AFC CAL, LLC|
|ADS ASHLAND, LLC|
|ADS PRIORITY TRANSPORT LTD.|
|ASSET HOLDINGS III, L.P.|
|AUTO DEALERS EXCHANGE OF CONCORD, LLC|
|AUTO DEALERS EXCHANGE OF MEMPHIS, LLC|
|AUTO DISPOSAL SYSTEMS, INC.|
|AUTOMOTIVE FINANCE CONSUMER DIVISION, LLC|
|AUTOMOTIVE FINANCE CORPORATION|
|AUTOMOTIVE RECOVERY SERVICES, INC.|
|DENT DEMON, LLC|
|INSURANCE AUTO AUCTIONS, INC.|
|INSURANCE AUTO AUCTIONS CORP.|
|IAA ACQUISITION CORP.|
|IAA SERVICES, INC.|
|SIOUX FALLS AUTO AUCTION, INC.|
|TRI-STATE AUCTION CO., INC.|
|ZABEL & ASSOCIATES, INC.|
|Eric M. Loughmiller|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
Jane Y. Schweiger
Senior Subordinated Second Supplemental Indenture