EXHIBIT 4.1.2
PENSKE AUTOMOTIVE GROUP, INC.
AS ISSUER,
THE GUARANTORS NAMED HEREIN
AS GUARANTORS,
AND
BANK OF NEW YORK TRUST COMPANY, N.A.
AS TRUSTEE,
3.50% SENIOR SUBORDINATED CONVERTIBLE NOTES DUE 2026
AMENDED AND RESTATED SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 21, 2008
TO
INDENTURE
DATED AS OF JANUARY 31, 2006
AMENDED AND RESTATED SUPPLEMENTAL INDENTURE
AMENDED AND RESTATED SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of February 21, 2008, among PAG Long Island M1, LLC, PAG Long Island
A1, LLC, PAG Long Island B1, LLC, PAG Long Island L1, LLC, smart USA Distributor
LLC, PAG Turnersville AU, LLC, Turnersville Auto Outlet, LLC, Cycle Holdings,
LLC, PAG Acquisition 15, LLC, PAG Michigan S1, LLC, PAG Austin S1, LLC, PAG
Clovis T1, Inc., Penske Direct, LLC, PAG North Scottsdale BE, LLC, PAG Orlando
Limited, Inc., PAG Orlando General, Inc. and PAG Orlando Partnership, Ltd. (each
a "Guaranteeing Subsidiary"), a subsidiary of Penske Automotive Group, Inc. or
its permitted successor), a Delaware corporation (the "Company"), the Company,
the other Guarantors (as defined in the Indenture referred to herein) and Bank
of New York Trust Company, N.A., successor to J.P. Morgan Trust Company,
National Association, as trustee under the Indenture referred to below (the
"Trustee").
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee an
indenture (the "Indenture"), dated as of January 31, 2006 providing for the
issuance of 3.50% Senior Subordinated Convertible Notes due 2026 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances 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 the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to Section 10.01 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
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 the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide
a Guarantee on the terms and subject to the conditions set forth in the
Guarantee and in the Indenture including but not limited to Article 12 thereof,
including the subordination provisions thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary(ies), as such, shall have any liability for any obligations of the
Company or any Guaranteeing Subsidiary(ies) under the Notes, any Guarantees, the
Indenture 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 the
Notes or any Guarantee by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and this Guarantee.
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
6. 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.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and
shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity 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 Subsidiary 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.
Dated as of February 21, 2008
SIGNATURES
PENSKE AUTOMOTIVE GROUP, INC.
By: /s/ Shane M. Spradlin
------------------------------------
Name: Shane M. Spradlin
Title: Senior Vice President, General
Counsel and Secretary
GUARANTORS:
UAG MINNEAPOLIS B1, LLC
JS IMPORTS, LLC
PALM AUTO PLAZA, LLC
WEST PALM NISSAN, LLC
UAG BOSTON FMM, LLC
UAG BOSTON FMB, LLC
UAG BOSTON FML, LLC
UAG BOSTON FMR, LLC
UAG BOSTON BENTLEY, LLC
WEST PALM S1, LLC
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
SCOTTSDALE 101 MANAGEMENT, LLC
SCOTTSDALE PAINT & BODY, LLC
UAG ACQUISITION 1, LLC
UAG ACQUISITION 2, LLC
UAG ACQUISITION 3, LLC
UAG ACQUISITION 4, LLC
UAG ACQUISITION 5, LLC
TAMBURRO ENTERPRISES, INC.
CLASSIC SPECIAL ADVERSTISING, INC.
CLASSIC SPECIAL, LLC
CLASSIC SPECIAL AUTOMOTIVE GP, LLC
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
CLASSIC OLDSMOBILE-PONTIAC-GMC, LTD.
CLASSIC SPECIAL HYUNDAI, LTD.
HILL COUNTRY IMPORTS, LTD.
By: CLASSIC SPECIAL, LLC
Its: General Partner
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
CLASSIC SPECIAL AUTOMOTIVE, LTD.
By: CLASSIC SPECIAL AUTOMOTIVE GP, LLC
Its: General Partner
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
ADDITIONAL GUARANTORS
PAG LONG ISLAND M1, LLC
PAG LONG ISLAND A1, LLC
PAG LONG ISLAND B1, LLC
PAG LONG ISLAND L1, LLC
TURNERSVILLE AUTO OUTLET, LLC
SMART USA DISTRIBUTOR LLC
PAG NORTH SCOTTSDALE BE, LLC
PENSKE DIRECT, LLC
CYCLE HOLDINGS, LLC
PAG TURNERSVILLE AU, LLC
PAG ACQUISITION 15, LLC
PAG MICHIGAN S1, LLC
PAG AUSTIN S1, LLC
PAG CLOVIS T1, INC.
PAG ORLANDO LIMITED, INC.
PAG ORLANDO GENERAL, INC.
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
PAG ORLANDO PARTNERSHIP, LTD.
By: PAG ORLANDO GENERAL, INC.
Its: General Partner
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
THE BANK OF NEW YORK TRUST COMPANY, N.A., AS TRUSTEE,
AS SUCCESSOR IN INTEREST TO
J.P. MORGAN TRUST COMPANY, N.A.
By: /s/ D.G. Donovan
Name: D.G. Donovan
Title: Vice President
GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of January 31, 2006 (the "Indenture") among
Penske Automotive Group, Inc., (the "Company"), the Guarantors party thereto and
The Bank of New York Trust Company, N.A., successor to J.P. Morgan Trust
Company, National Association, as trustee (the "Trustee"), (a) the due and
punctual payment of the principal of, premium and Additional Interest, if any,
and interest (including Contingent Interest, if any) on the 3.50% Senior
Subordinated Convertible Notes due 2026 (the "Notes") whether at the Final
Maturity Date, by acceleration or otherwise, the due and punctual payment of
interest on overdue principal of and interest on the Notes, if any, or a senior
subordinated basis, if lawful, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at the Final Maturity Date, by acceleration or
otherwise. The obligations of the Guarantors to the Holders of Notes and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article 12 of the Indenture, including the circumstances under which such
obligations may be released and the terms by which such obligations are
subordinated to Senior Guarantor Indebtedness, and reference is hereby made to
the Indenture for the precise terms of the Guarantee. Each Holder of a Note, by
accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such Holder, to take such
action as may be necessary or appropriate to effectuate the subordination as
provided in the Indenture and (c) appoints the Trustee attorney-in-fact of such
Holder for such purpose. This Guarantee may be released in accordance with the
Indenture without any further act by any Holder.
Notwithstanding the foregoing, this guarantee shall be automatically and
unconditionally released and discharged upon (1) any sale, exchange or transfer
to any person not an affiliate of the Company, of all of the capital stock in,
or all or substantially all the assets of, such Guarantor, which transaction is
in compliance with the terms of the Indenture and pursuant to which transaction
such Guarantor is released from all guarantees, if any, by it of other
Indebtedness of the Company or any of its subsidiaries, (2) the release by the
holders of the Indebtedness of the Company of their guarantee by such Guarantor
(including any deemed release upon payment in full of all obligations under such
Indebtedness), at such time as (A) no other Indebtedness of the Company has been
guaranteed by such Guarantor, or (B) the holders of all such other Indebtedness
which is guaranteed by such Guarantor also release their guarantee by such
Guarantor (including any deemed release upon payment in full of all obligations
under such Indebtedness) or (3) such Guarantor ceasing to be a wholly owned
subsidiary of the Company.
Capitalized terms used but not defined herein have the meanings given to
them in the Indenture.
PAG LONG ISLAND M1, LLC
PAG LONG ISLAND A1, LLC
PAG LONG ISLAND B1, LLC
PAG LONG ISLAND L1, LLC
SMART USA DISTRIBUTOR LLC
TURNERSVILLE AUTO OUTLET, LLC
PAG NORTH SCOTTSDALE BE, LLC
PENSKE DIRECT, LLC
CYCLE HOLDINGS, LLC
PAG TURNERSVILLE AU, LLC
PAG ACQUISITION 15, LLC
PAG MICHIGAN S1, LLC
PAG AUSTIN S1, LLC
PAG FESNO T1, INC.
PAG ORLANDO LIMITED, INC.
PAG ORLANDO GENERAL, INC.
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer
PAG ORLANDO PARTNERSHIP, LTD.
By: PAG ORLANDO GENERAL, INC.
Its: General Partner
By: /s/ Robert O'Shaughnessy
------------------------------------
Name: Robert O'Shaughnessy
Title: Assistant Treasurer