Eighth Supplemental Indenture to 2014 Indenture, dated as of February 18, 2021, adding additional guarantors
EIGHTH SUPPLEMENTAL INDENTURE
Eighth Supplemental Indenture (this “Supplemental Indenture”), dated as of February 18, 2021, among Penske Automotive Group, Inc., a Delaware corporation (the “Company”), the guarantors set forth on the signature page hereto (the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”). All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture (as defined below).
WHEREAS, the Company and the other Guarantors party thereto have heretofore executed and delivered an Indenture, a First Supplemental Indenture, dated as of November 21, 2014, a Second Supplemental Indenture dated as of April 27, 2016, a Third Supplemental Indenture dated as of May 25, 2016, a Fourth Supplemental Indenture dated as of July 13, 2016, a Fifth Supplemental Indenture dated as of August 15, 2017, a Sixth Supplemental Indenture dated as of October 24, 2018, and a Seventh Supplemental Indenture dated as of August 20, 2020 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), providing for the issuance by the Company of its 3.5% Senior Subordinated Notes due 2025 and its 5.50% Senior Subordinated Notes due 2026 (the “Securities”);
WHEREAS, the Indenture provides that under certain circumstances a Future Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which such Future Guarantor shall, subject to Article Fourteen of the Indenture, unconditionally guarantee the Securities on the terms and conditions set forth therein (the “Guarantee”);
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture; and
WHEREAS, all acts and requirements necessary to make this Supplemental Indenture a legal, valid and binding obligation of the Company and the Guarantors have been done.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Company, the Guarantors and the Trustee mutually covenant and agree as follows for the equal and ratable benefit of the Holders.
Section 1.1Defined Terms. As used in this Supplemental Indenture, terms defined in the Indenture or in the preamble or recitals 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.
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AGREEMENT TO GUARANTEE
Section 2.1Agreement to be Bound. The Guarantor hereby becomes a party to the Indenture as a Guarantor and as such shall have all of the rights and be subject to all of the obligations and agreements of a Guarantor under the Indenture.
Section 2.2Guarantee. The Guarantor agrees, on a joint and several basis with all the existing Guarantors, to fully, unconditionally and irrevocably Guarantee to each Holder of the Securities and the Trustee the Indenture Obligations pursuant to Article Fourteen of the Indenture.
Section 3.1Execution and Delivery. The Guarantors agree that the Guarantee shall remain in full force and effect notwithstanding any failure to endorse on each Security a notation of the Guarantee.
Section 3.2Benefits Acknowledged. The Guarantor’s Guarantee is subject to the terms and conditions set forth in the Indenture. The Guarantor acknowledges that they shall receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee and this Supplemental Indenture are knowingly made in contemplation of such benefits.
Section 3.3Ratification 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 Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
Section 3.4Severability. In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
Section 3.5Guarantors May Consolidate, Etc., on Certain Terms. The Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into, any Person other than as set forth Section 801(b) of the Indenture.
Section 3.6Release. The Guarantor’s Guarantee shall be released as set forth in Section 1314 of the Indenture.
Section 3.7Governing Law. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
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Section 3.8Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed an original; but all such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or .pdf transmission shall constitute effective execution and delivery of this Supplemental Indenture for all purposes and may be used in lieu of the original Indenture. Signatures of parties hereto transmitted by facsimile or .pdf shall be deemed to be their original signatures for all purposes.
Section 3.9Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 3.10Trustee. 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 Guarantor 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.
PENSKE AUTOMOTIVE GROUP, INC.
By:/s/ J.D. Carlson
Name: J.D. Carlson
Title: EVP & CFO
By:/s/ J.D. Carlson
Name: J.D. Carlson
Title: Assistant Treasurer
THE BANK OF NEW YORK Mellon TRUST COMPANY, N.A., as trustee
By:/s/ Julie Hoffman-Ramos
Name: Julie Hoffman-Ramos
Title: Vice President
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