Table of Contents

 

As filed with the Securities and Exchange Commission on February 24, 2017

 

Registration No. 333-         

 

 

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Form S-3

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

PENSKE AUTOMOTIVE GROUP, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

(For Co-registrants, Please See Table of Other Registrants on the Following Page)

 

Delaware

 

22-3086739

(State or Other Jurisdiction of
Incorporation or Organization)

 

(I.R.S. Employer
Identification No.)

 

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

(248) 645-2500

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)

 

Shane M. Spradlin

Executive Vice President and General Counsel

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

Telephone No.: (248) 648-2560

Facsimile No.: (248) 648-2515

(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)

 

Approximate date of commencement of proposed sale to the public:   From time to time after the Registration Statement becomes effective.

 

If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.   o

 

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.   x

 

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

 

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   o

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.   x

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.   o

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer  x

 

Accelerated filer  o

 

Non-accelerated filer  o

 

Smaller reporting company  o

 

 

 

 

(Do not check if a smaller reporting company)

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of each Class of
Securities to be Registered

 

Amount to be
Registered

 

Proposed Maximum
Offering
Price per Unit

 

Proposed Maximum
Aggregate
Offering Price

 

Amount of
Registration
Fee(1)

 

Common Stock, par value $0.0001 per share

 

(1)

 

(1)

 

(1)

 

(1)

 

Preferred Stock, par value $0.0001 per share

 

(1)

 

(1)

 

(1)

 

(1)

 

Debt Securities

 

(1)

 

(1)

 

(1)

 

(1)

 

Subsidiary Guarantees of Debt Securities(2)

 

(1)

 

(1)

 

(1)

 

(1)

 

Warrants(3)

 

(1)

 

(1)

 

(1)

 

(1)

 

Rights to Purchase Common Stock(4)

 

(1)

 

(1)

 

(1)

 

(1)

 

(1)           An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices.  Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities.  In accordance with Rules 456(b) and 457(r) under the Securities Act of 1933, the Registrant is deferring payment of all of the registration fee.

(2)           Pursuant to Rule 457(n) under the Securities Act of 1933, no separate filing fee is payable in respect of the subsidiary guarantees.

(3)           Includes warrants to purchase debt securities, warrants to purchase common stock and warrants to purchase preferred stock.

(4)           There are hereby registered such indeterminate number of rights to purchase common stock as may be issued as a dividend for which no separate consideration will be received to holders of common stock and related securities entitling such holders to subscribe for and purchase common stock registered hereunder.

 

 

 



Table of Contents

 

TABLE OF OTHER REGISTRANTS

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

ATC CHATTANOOGA, LLC

 

Delaware

 

38-3944558

ATC KNOXVILLE, LLC

 

Delaware

 

36-4798298

ATC REALTY INVESTMENTS, LLC

 

Oklahoma

 

46-1057967

ATC WEST TEXAS, LLC

 

Delaware

 

38-3933090

ATLANTIC AUTO FUNDING CORPORATION

 

Delaware

 

16-1480801

ATLANTIC AUTO SECOND FUNDING CORPORATION

 

Delaware

 

16-1502671

ATLANTIC AUTO THIRD FUNDING CORPORATION

 

Delaware

 

16-1505549

AUTO MALL PAYROLL SERVICES, INC.

 

Florida

 

65-0168491

AUTOMOTIVE MEDIA HOLDINGS, LLC

 

Delaware

 

27-0487960

BOWEN REALTY INVESTMENTS, LLC

 

Oklahoma

 

73-1199575

BRETT MORGAN CHEVROLET-GEO, INC.

 

Delaware

 

62-1666250

CENTRAL FORD CENTER, INC.

 

Arkansas

 

71-0472936

CJNS, LLC

 

Delaware

 

86-1024936

CLASSIC AUTO GROUP, INC.

 

New Jersey

 

22-3115638

CLASSIC ENTERPRISES, LLC

 

Delaware

 

22-3115638

CLASSIC IMPORTS, INC.

 

New Jersey

 

22-3528527

CLASSIC MANAGEMENT COMPANY, INC.

 

New Jersey

 

22-3271563

CLASSIC MOTOR SALES, LLC

 

Delaware

 

22-3555425

CLASSIC NISSAN OF TURNERSVILLE, LLC

 

Delaware

 

52-2097845

CLASSIC OLDSMOBILE-PONTIAC-GMC TRUCK, LTD.

 

Texas

 

74-2355160

CLASSIC SPECIAL ADVERTISING, INC.

 

Texas

 

74-2821777

CLASSIC SPECIAL AUTOMOTIVE GP, LLC

 

Texas

 

74-2974762

CLASSIC SPECIAL AUTOMOTIVE, LTD.

 

Texas

 

74-2974762

CLASSIC SPECIAL HYUNDAI, LTD.

 

Texas

 

74-2974736

CLASSIC SPECIAL, LLC

 

Texas

 

74-2974736

CLASSIC TURNERSVILLE, INC.

 

New Jersey

 

22-3523436

COUNTY AUTO GROUP PARTNERSHIP

 

New Jersey

 

13-3678489

COVINGTON PIKE DODGE, INC.

 

Delaware

 

62-1470261

CYCLE HOLDINGS, LLC

 

Delaware

 

26-1860955

D. YOUNG CHEVROLET, LLC

 

Delaware

 

35-2035177

DAN YOUNG CHEVROLET, INC.

 

Indiana

 

35-1123225

DAN YOUNG MOTORS, LLC

 

Delaware

 

35-2035179

DANBURY AUTO PARTNERSHIP

 

Connecticut

 

06-1349205

DEALER ACCESSORIES, LLC

 

Delaware

 

26-0111056

DIFEO CHRYSLER PLYMOUTH JEEP EAGLE PARTNERSHIP

 

New Jersey

 

22-3186252

DIFEO HYUNDAI PARTNERSHIP

 

New Jersey

 

22-3186280

DIFEO LEASING PARTNERSHIP

 

New Jersey

 

22-3193493

DIFEO NISSAN PARTNERSHIP

 

New Jersey

 

22-3186257

DIFEO PARTNERSHIP, LLC

 

Delaware

 

22-3145559

DIFEO TENAFLY PARTNERSHIP

 

New Jersey

 

22-3186285

EUROPA AUTO IMPORTS, INC.

 

California

 

95-2305855

FLORIDA CHRYSLER PLYMOUTH, INC.

 

Florida

 

59-2676162

FRN OF TULSA, LLC

 

Delaware

 

74-2870051

GENE REED CHEVROLET, INC.

 

South Carolina

 

57-0714181

GMG MOTORS, INC.

 

California

 

95-2691214

GOODSON NORTH, LLC

 

Delaware

 

74-2962022

GOODSON SPRING BRANCH, LLC

 

Delaware

 

74-2962017

HBL, LLC

 

Delaware

 

38-3635872

HILL COUNTRY IMPORTS, LTD.

 

Texas

 

74-2585314

HT AUTOMOTIVE, LLC

 

Delaware

 

41-2251059

 



Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

HUDSON MOTORS PARTNERSHIP

 

New Jersey

 

22-3186282

KMT/UAG, INC.

 

California

 

95-3189650

LANDERS AUTO SALES, LLC

 

Delaware

 

84-1664308

LANDERS BUICK-PONTIAC, INC.

 

Arkansas

 

71-0765000

LANDERS FORD NORTH, INC.

 

Arkansas

 

71-0833592

LATE ACQUISITION I, LLC

 

Delaware

 

33-1011098

LATE ACQUISITION II, LLC

 

Delaware

 

33-1011096

MICHAEL CHEVROLET-OLDSMOBILE, INC.

 

South Carolina

 

57-0917132

MOTORCARS ACQUISITION III, LLC

 

Delaware

 

38-3526235

MOTORCARS ACQUISITION IV, LLC

 

Delaware

 

38-3569545

MOTORCARS ACQUISITION V, LLC

 

Delaware

 

87-0721680

MOTORCARS ACQUISITION VI, LLC

 

Delaware

 

86-1121782

MOTORCARS ACQUISITION, LLC

 

Delaware

 

38-3526432

NATIONAL CITY FORD, INC.

 

Delaware

 

33-0834429

OCT PARTNERSHIP

 

New Jersey

 

22-3248303

PAG ACQUISITION 27, LLC

 

Delaware

 

27-0398643

PAG ACQUISITION 28, LLC

 

Delaware

 

27-0398588

PAG ACQUISITION 53, LLC

 

Delaware

 

n/a

PAG ACQUISITION 54, LLC

 

Delaware

 

n/a

PAG ACQUISITION 55, LLC

 

Delaware

 

n/a

PAG ANNAPOLIS JL1, LLC

 

Delaware

 

46-3695869

PAG ARKANSAS F1, LLC

 

Delaware

 

45-3265105

PAG ARKANSAS F2, LLC

 

Delaware

 

45-4552146

PAG ATLANTA MANAGEMENT, LLC

 

Delaware

 

13-3865530

PAG AUSTIN H1, LLC

 

Delaware

 

n/a

PAG AZ PROPERTIES, LLC

 

Delaware

 

26-1377262

PAG BEDFORD A1, LLC

 

Delaware

 

27-3969879

PAG BEDFORD P1, LLC

 

Delaware

 

27-3969933

PAG BEDFORD PROPERTIES, LLC

 

Delaware

 

n/a

PAG CHANDLER JLR, LLC

 

Delaware

 

n/a

PAG CHANTILLY M1, LLC

 

Delaware

 

26-1377251

PAG CLOVIS T1, INC.

 

Delaware

 

26-1857570

PAG CONNECTICUT LR1, LLC

 

Delaware

 

47-2218165

PAG CYCLES MI, LLC

 

Delaware

 

46-3817133

PAG DAVIE P1, LLC

 

Delaware

 

46-3687094

PAG DISTRIBUTOR S1, LLC

 

Delaware

 

87-0766681

PAG EAST, LLC

 

Delaware

 

35-2036025

PAG EDISON B1, LLC

 

Delaware

 

46-2906028

PAG GOODYEAR F1, LLC

 

Delaware

 

86-1024935

PAG GREENWICH B1, LLC

 

Delaware

 

46-4359670

PAG GREENWICH HOLDINGS, LLC

 

Delaware

 

46-4033557

PAG INTERNATIONAL SERVICES, LLC

 

Delaware

 

46-4042748

PAG INVESTMENTS, LLC

 

Delaware

 

27-5082711

PAG MADISON L1, LLC

 

Delaware

 

46-0992715

PAG MADISON T1, LLC

 

Delaware

 

46-0983205

PAG MARIN M1, INC.

 

Delaware

 

27-4171554

PAG MCALLEN H1, LLC

 

Delaware

 

46-3643632

PAG MCALLEN T1, LLC

 

Delaware

 

46-3655017

PAG MENTOR A1, INC.

 

Ohio

 

34-1403202

PAG MICHIGAN HOLDINGS, LLC

 

Delaware

 

30-0193048

PAG NEW JERSEY A1, LLC

 

Delaware

 

47-5025018

PAG NEW JERSEY CS, LLC

 

Delaware

 

81-2315006

PAG NEW JERSEY JL1, LLC

 

Delaware

 

47-5068848

PAG NEW JERSEY JL2, LLC

 

Delaware

 

81-4966517

 



Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

PAG NEW JERSEY JL3, LLC

 

Delaware

 

n/a

PAG NEW JERSEY P1, LLC

 

Delaware

 

47-5038322

PAG NORTH SCOTTSDALE BE, LLC

 

Delaware

 

26-1363608

PAG NORTH SCOTTSDALE M1, LLC

 

Delaware

 

n/a

PAG NORTHERN CALIFORNIA MANAGEMENT, INC.

 

Delaware

 

27-1068131

PAG ONTARIO B1, INC.

 

Delaware

 

46-0738871

PAG ORANGE COUNTY L1, INC.

 

Delaware

 

47-4863566

PAG ORANGE COUNTY MANAGEMENT COMPANY, INC.

 

Delaware

 

45-3981423

PAG ORANGE COUNTY RR1, INC.

 

Delaware

 

45-4896142

PAG ORANGE COUNTY S1, INC.

 

Delaware

 

47-0957524

PAG ORLANDO GENERAL, LLC

 

Delaware

 

26-1207380

PAG ORLANDO LIMITED, LLC

 

Delaware

 

26-1206643

PAG ORLANDO PARTNERSHIP, LTD.

 

Florida

 

26-1340023

PAG PENNSYLVANIA CS, LLC

 

Delaware

 

81-2338272

PAG ROSWELL B1, LLC

 

Delaware

 

81-4497213

PAG SAN FRANCISCO N1, INC.

 

Delaware

 

27-3979807

PAG SANTA ANA AVW, INC.

 

Delaware

 

27-1339782

PAG SANTA ANA B1, INC.

 

Delaware

 

45-2267865

PAG SURPRISE T1, LLC

 

Delaware

 

46-2042352

PAG TEMPE M1, LLC

 

Delaware

 

26-1377292

PAG TEXAS MANAGEMENT COMPANY, LLC

 

Delaware

 

45-3981193

PAG TURNERSVILLE AU, LLC

 

Delaware

 

26-4426061

PAG WASHINGTON A1, LLC

 

Delaware

 

81-2292613

PAG WEST ACQUISITION 8, INC.

 

Delaware

 

n/a

PAG WEST ACQUISITION 9, INC.

 

Delaware

 

n/a

PAG WEST BAY MIT, LLC

 

Delaware

 

27-3042965

PAG WEST, LLC

 

Delaware

 

13-3914611

PALM AUTO PLAZA, LLC

 

Delaware

 

65-1272503

PEACHTREE NISSAN, INC.

 

Georgia

 

58-1273321

PENSKE CAR RENTAL (DT) MEMPHIS, LLC

 

Delaware

 

32-0442689

PENSKE CAR RENTAL HOLDINGS, LLC

 

Delaware

 

46-0788554

PENSKE CAR RENTAL INDIANA, LLC

 

Delaware

 

80-0877574

PENSKE CAR RENTAL MEMPHIS, LLC

 

Delaware

 

35-2452611

PENSKE COMMERCIAL VEHICLES US, LLC

 

Delaware

 

46-2758677

PETER PAN MOTORS, INC.

 

California

 

94-1747384

PMRC, LLC

 

Delaware

 

22-3881752

RELENTLESS PURSUIT ENTERPRISES, INC.

 

California

 

93-1008771

SA AUTOMOTIVE, LTD.

 

Arizona

 

86-0583813

SAU AUTOMOTIVE, LTD.

 

Arizona

 

86-0839423

SCOTTSDALE 101 MANAGEMENT, LLC

 

Delaware

 

26-1363820

SCOTTSDALE FERRARI, LLC

 

Arizona

 

86-0981831

SCOTTSDALE MANAGEMENT GROUP, LTD.

 

Arizona

 

86-0573438

SCOTTSDALE PAINT & BODY, LLC

 

Delaware

 

26-1363898

SDG AUTOMOTIVE INVESTMENTS, LLC

 

Ohio

 

20-1680626

SIGMA MOTORS INC.

 

Arizona

 

86-1047752

SINGLE SOURCE TRUCK PARTS, LLC

 

Delaware

 

n/a

SK MOTORS, LLC

 

Delaware

 

32-0212884

SL AUTOMOTIVE, LLC

 

Delaware

 

38-3763696

SOMERSET MOTORS PARTNERSHIP

 

New Jersey

 

22-3186283

SOMERSET MOTORS, INC.

 

New Jersey

 

22-2986160

 



Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

SUN MOTORS, LLC

 

Delaware

 

30-0438071

TAMBURRO ENTERPRISES, INC.

 

Nevada

 

88-0485938

THE AROUND THE CLOCK FREIGHTLINER GROUP, LLC

 

Oklahoma

 

73-1199515

UAG ARKANSAS FLM, LLC

 

Delaware

 

87-0766675

UAG ATLANTA H1, LLC

 

Delaware

 

30-0282545

UAG ATLANTA IV MOTORS, INC.

 

Georgia

 

58-1092076

UAG CAPITOL, INC.

 

Delaware

 

76-0759095

UAG CAROLINA, INC.

 

Delaware

 

13-3959601

UAG CENTRAL NJ, LLC

 

Delaware

 

90-0131625

UAG CENTRAL REGION MANAGEMENT, LLC

 

Indiana

 

38-3537233

UAG CHANTILLY AU, LLC

 

Delaware

 

87-0766680

UAG CHCC, INC.

 

New Jersey

 

22-2990922

UAG CHEVROLET, INC.

 

New Jersey

 

22-2762327

UAG CITRUS MOTORS, LLC

 

Delaware

 

59-3525335

UAG CLASSIC, INC.

 

Delaware

 

13-3987807

UAG CLOVIS, INC.

 

Delaware

 

76-0759096

UAG CONNECTICUT, LLC

 

Delaware

 

06-1589742

UAG DULUTH, INC.

 

Texas

 

58-1786146

UAG EAST, LLC

 

Delaware

 

13-3944970

UAG ESCONDIDO A1, INC.

 

Delaware

 

20-3697398

UAG ESCONDIDO H1, INC.

 

Delaware

 

20-3697348

UAG ESCONDIDO M1, INC.

 

Delaware

 

20-3697423

UAG FAYETTEVILLE I, LLC

 

Delaware

 

71-0858576

UAG FAYETTEVILLE II, LLC

 

Delaware

 

71-0858577

UAG FAYETTEVILLE III, LLC

 

Delaware

 

71-0858578

UAG FINANCE COMPANY, INC.

 

Delaware

 

13-3953915

UAG GRACELAND II, INC.

 

Delaware

 

13-3991339

UAG HOUSTON ACQUISITION, LTD.

 

Texas

 

38-3542915

UAG HUDSON CJD, LLC

 

Delaware

 

87-0766678

UAG HUDSON, INC.

 

New Jersey

 

22-1919268

UAG INTERNATIONAL HOLDINGS, INC.

 

Delaware

 

51-0393682

UAG KISSIMMEE MOTORS, LLC

 

Delaware

 

58-2361341

UAG LANDERS SPRINGDALE, LLC

 

Delaware

 

71-0846659

UAG LOS GATOS, INC.

 

Delaware

 

76-0759098

UAG MARIN, INC.

 

Delaware

 

76-0759100

UAG MEMPHIS II, INC.

 

Delaware

 

62-1722683

UAG MEMPHIS IV, INC.

 

Delaware

 

62-1722679

UAG MEMPHIS MANAGEMENT, INC.

 

Delaware

 

62-1722677

UAG MENTOR ACQUISITION, LLC

 

Delaware

 

38-3553602

UAG MICHIGAN CADILLAC, LLC

 

Delaware

 

38-3543705

UAG MICHIGAN H1, LLC

 

Delaware

 

42-1539792

UAG MICHIGAN PONTIAC-GMC, LLC

 

Delaware

 

38-3543709

UAG MICHIGAN T1, LLC

 

Delaware

 

38-3543711

UAG MICHIGAN TMV, LLC

 

Delaware

 

38-3544903

UAG MINNEAPOLIS B1, LLC

 

Delaware

 

76-0819658

UAG NANUET II, LLC

 

Delaware

 

22-3784978

UAG NORTHEAST, LLC

 

Delaware

 

13-3914694

UAG REALTY, LLC

 

Delaware

 

38-3543708

UAG ROYAL PALM M1, LLC

 

Delaware

 

06-1774003

UAG ROYAL PALM, LLC

 

Delaware

 

80-0072974

UAG SAN DIEGO A1, INC.

 

Delaware

 

20-3697335

UAG SAN DIEGO AU, INC.

 

Delaware

 

20-3955972

UAG SAN DIEGO H1, INC.

 

Delaware

 

20-3697304

UAG SAN DIEGO MANAGEMENT, INC.

 

Delaware

 

20-3955897

 



Table of Contents

 

Exact Name of Registrant Guarantor as Specified in its Charter

 

State or Other Jurisdiction of
Incorporation or Organization

 

I.R.S. Employer
Identification Number

UAG STEVENS CREEK II, INC.

 

Delaware

 

47-0957526

UAG TEXAS II, INC.

 

Delaware

 

13-3933083

UAG TEXAS, LLC

 

Delaware

 

13-3933080

UAG TULSA HOLDINGS, LLC

 

Delaware

 

51-0410923

UAG TURNERSVILLE REALTY, LLC

 

Delaware

 

38-3543708

UAG VK, LLC

 

Delaware

 

38-3590846

UAG WEST BAY AM, LLC

 

Delaware

 

61-1442389

UAG WEST BAY FM, LLC

 

Delaware

 

86-1088680

UAG WEST BAY IA, LLC

 

Delaware

 

30-0150593

UAG WEST BAY IAU, LLC

 

Delaware

 

61-1442390

UAG WEST BAY IB, LLC

 

Delaware

 

35-2196049

UAG WEST BAY II, LLC

 

Delaware

 

38-3672787

UAG WEST BAY IL, LLC

 

Delaware

 

30-0150590

UAG WEST BAY IM, LLC

 

Delaware

 

37-1458215

UAG WEST BAY IN, LLC

 

Delaware

 

04-3805793

UAG WEST BAY IP, LLC

 

Delaware

 

32-3360132

UAG WEST BAY IV, LLC

 

Delaware

 

32-0060125

UAG WEST BAY IW, LLC

 

Delaware

 

36-4521984

UAG YOUNG II, INC.

 

Delaware

 

13-3985679

UAG-CARIBBEAN, INC.

 

Delaware

 

13-3980142

UNITED AUTO LICENSING, LLC

 

Delaware

 

38-3556189

UNITED AUTO SCOTTSDALE PROPERTY HOLDINGS, LLC

 

Delaware

 

86-1123497

UNITED AUTOCARE PRODUCTS, LLC

 

Delaware

 

13-3922210

UNITED NISSAN, INC.

 

Georgia

 

58-2038392

UNITED NISSAN, INC.

 

Tennessee

 

62-0790848

UNITED RANCH AUTOMOTIVE, LLC

 

Delaware

 

86-1008720

UNITEDAUTO DODGE OF SHREVEPORT, INC.

 

Delaware

 

72-1393145

UNITEDAUTO FIFTH FUNDING, INC.

 

Delaware

 

16-1549850

UNITEDAUTO FINANCE, INC.

 

Delaware

 

16-1456003

UNITEDAUTO FOURTH FUNDING INC.

 

Delaware

 

16-1543345

WEST PALM AUTO MALL, INC.

 

Florida

 

65-0050208

WEST PALM NISSAN, LLC

 

Delaware

 

06-1773996

WESTBURY SUPERSTORE, LTD.

 

New York

 

11-2983989

WTA MOTORS, LTD.

 

Texas

 

33-1011102

YOUNG MANAGEMENT GROUP, INC.

 

Indiana

 

35-1897920

 


(1)  The address of each guarantor is 2555 Telegraph Road, Bloomfield Hills, MI  48302.

 

c/o Penske Automotive Group, Inc.

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

(248) 648-2500

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Each of the Co-Registrant’s Principal Executive Offices)

 

Shane M. Spradlin

Executive Vice President and General Counsel

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

Telephone No.: (248) 648-2560

Facsimile No.: (248) 648-2515

(Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service of Process for Each of the Co-Registrants)

 


 


Table of Contents

 

PROSPECTUS

 

Penske Automotive Group, Inc.

 

Debt Securities

Preferred Stock

Common Stock

Warrants

 

We may use this prospectus from time to time to offer debt securities, shares of our preferred stock, shares of our common stock or warrants to purchase our debt securities, preferred stock or common stock. Any or all of the securities may be offered and sold separately or together.

 

In addition, certain selling securityholders to be identified in a prospectus supplement may use this prospectus from time to time to offer shares of common stock or preferred stock, warrants or other securities. To the extent that any selling securityholder resells any securities, the selling securityholder may be required to provide you with this prospectus and a prospectus supplement identifying and containing specific information about the selling securityholder and the terms of the securities being offered.

 

We and/or selling securityholders may offer and sell securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis.  This prospectus also covers guarantees, if any, of our payment obligations under any debt securities, which may be given by certain of our subsidiaries on terms to be determined at the time of the offering. The debt securities and preferred stock may be convertible into or exchangeable or exercisable for other securities. The specific terms of these securities, and the manner in which these securities will be offered, will be provided in supplements to this prospectus. The prospectus supplements may also add, update or change information contained in this prospectus. Information in this prospectus will be deemed modified or superseded by an accompanying prospectus supplement or other offering materials.  You should carefully read this prospectus and any prospectus supplement before you invest.

 

Our common stock is listed on the New York Stock Exchange under the symbol “PAG.”  Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.

 

For a discussion of factors that you should consider before you invest in our securities, see “Risk Factors” on page 2 of this prospectus.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful and complete. Any representation to the contrary is a criminal offense.

 

The date of this prospectus is February 24, 2017.

 


 

 


Table of Contents

 

TABLE OF CONTENTS

 

 

Page

 

 

About this Prospectus

i

Disclosure Regarding Forward-Looking Statements

ii

Documents Incorporated by Reference into this Prospectus

iv

The Company

1

Consolidated Ratio of Earnings to Fixed Charges

2

Risk Factors

2

Use of Proceeds

2

Description of Debt Securities

2

Description of Capital Stock

7

Description of Preferred Stock

9

Description of Common Stock

11

Description of Warrants to Purchase Debt Securities

12

Description of Warrants to Purchase Common or Preferred Stock

13

Plan of Distribution

14

Selling Securityholders

15

Legal Matters

15

Experts

15

Where You Can Find More Information

15

 

ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement we filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may sell, from time to time, any combination of the securities described in this prospectus in one or more offerings, and certain selling securityholders to be identified in a prospectus supplement may sell, from time to time, shares of our common stock or preferred stock, warrants or other securities. This prospectus provides you with a general description of the securities we and/or selling securityholders may offer. Each time we and/or selling securityholders sell securities, a prospectus supplement will be provided that contains specific information about the terms of that offering and the specific manner in which such securities may be offered. The prospectus supplement may also add to, update or change information contained in or incorporated by reference into this prospectus. To the extent that any statement made in a prospectus supplement or other offering material is inconsistent with statements made in this prospectus, the statements made in this prospectus will be deemed modified or superseded by those made in the prospectus supplement or other offering material. The prospectus supplement or other offering material may also contain information about any material federal income tax considerations relating to our securities described in the prospectus supplement or other offering material. You should read both this prospectus and any prospectus supplement, together with additional information described under “Documents Incorporated by Reference into this Prospectus” and “Where You Can Find More Information” elsewhere in this prospectus before making an investment decision.

 

This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed or will be filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You Can Find More Information” elsewhere in this prospectus.

 

The registration statement that contains this prospectus, including the exhibits to the registration statement, contains additional information about us and the securities offered under this prospectus. That registration statement can be read at the SEC’s web site ( www.sec.gov ) or at the SEC’s offices mentioned under the heading “Where You Can Find More Information” elsewhere in this prospectus.

 

You should rely only on the information contained in or incorporated by reference into this prospectus. We have not authorized any other person to provide you with different or additional information. If anyone provides you with different or additional information, you should not rely on it. The information in this prospectus is accurate as of the date on the front cover. The information we have filed and will file with the SEC that is incorporated by reference into this prospectus is accurate as of the filing date of those documents. Our business, financial condition, results of operations and prospects may have changed since those dates and may change again.

 

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This prospectus may not be used to sell our securities unless it is accompanied by a prospectus supplement or other offering material.

 

As used in this prospectus, the terms the “Company,” “Penske Automotive” “we,” “us,” and “our” may, depending upon the context, refer to Penske Automotive Group, Inc., our consolidated subsidiaries, or to all of them taken as a whole.

 

DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS

 

Certain statements in this prospectus or the documents incorporated by reference into this prospectus constitute “forward-looking statements” as that term is defined under Section 21E of the Securities Exchange Act of 1934, as amended, concerning, among other things, the prospects and developments of our Company and business strategies for our operations, all of which are subject to risks and uncertainties. These forward-looking statements are included in various sections of this prospectus and the documents incorporated by reference into this prospectus. They are identified as “forward-looking statements” or by their use of terms (and variations thereof) such as “will,” “may,” “can,” “anticipate,” “intend,” “continue,” “estimate,” “expect,” “plan,” “should,” “outlook,” “believe” and “seek,” and similar terms (and variations thereof) and phrases.

 

Forward-looking statements include statements regarding our current plans, forecasts, estimates, beliefs or expectations, including, without limitation, statements with respect to:

 

·                  our future financial and operating performance;

 

·                  future acquisitions and dispositions;

 

·                   future potential capital expenditures and securities repurchases;

 

·                   our ability to realize cost savings and synergies;

 

·                   our ability to respond to economic cycles;

 

·                   trends in the automotive retail and commercial vehicles industries and in the general economy in the various countries in which we operate;

 

·                   our ability to access the remaining availability under our credit agreements;

 

·                   our liquidity;

 

·                   performance of joint ventures, including Penske Truck Leasing (“PTL”);

 

·                   future foreign exchange rates;

 

·                   the outcome of various legal proceedings;

 

·                   results of self-insurance plans;

 

·                   trends affecting our future financial condition or results of operations; and

 

·                   our business strategy.

 

Our actual results may differ materially from those anticipated in these forward-looking statements. These forward-looking statements are affected by risks, uncertainties and assumptions that we make, including among other things, the factors that are described in “Risk Factors” and:

 

·                   our business and the automotive retail and commercial vehicles industries in general are susceptible to adverse economic conditions, including changes in interest rates, foreign exchange rates, customer demand, customer confidence, fuel prices, unemployment rates and credit availability;

 

·                   the political and economic outcome of the June 2016 referendum in the U.K. to leave the European Union;

 

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·                   the number of new and used vehicles sold in our markets;

 

·                   the effect on our businesses of new mobility technologies such as shared vehicle services, such as Uber and Lyft, and the eventual availability of driverless vehicles;

 

·                   vehicle manufacturers exercise significant control over our operations, and we depend on them and continuation of our franchise and distribution agreements in order to operate our business;

 

·                   we depend on the success, popularity and availability of the brands we sell, and adverse conditions affecting one or more vehicle manufacturers, including the adverse impact on the vehicle and parts supply chain due to natural disasters or other disruptions that interrupt the supply of vehicles and parts to us, may negatively impact our revenues and profitability;

 

·                   we are subject to the risk that a substantial number of our new or used inventory may be unavailable due to recall or other reasons;

 

·                   the success of our commercial vehicle distribution and engine and power systems distribution operations depends upon continued availability of the vehicles, engines, power systems and other parts we distribute, demand for those vehicles, engines, power systems and parts, and general economic conditions in those markets;

 

·                   a restructuring of any significant vehicle manufacturers or suppliers;

 

·                   our operations may be affected by severe weather or other periodic business interruptions;

 

·                   we have substantial risk of loss not covered by insurance;

 

·                   we may not be able to satisfy our capital requirements for acquisitions, facility renovation projects, financing the purchase of our inventory or refinancing of our debt when it becomes due;

 

·                   our level of indebtedness may limit our ability to obtain financing generally and may require that a significant portion of our cash flow be used for debt service;

 

·                   non-compliance with the financial ratios and other covenants under our credit agreements and operating leases;

 

·                   higher interest rates may significantly increase our variable rate interest costs and, because many customers finance their vehicle purchases, decrease vehicle sales;

 

·                   our operations outside of the U.S. subject our profitability to fluctuations relating to changes in foreign currency values, which have most recently occurred as a result of the June 2016 U.K. referendum to leave the European Union;

 

·                   import product restrictions and foreign trade risks that may impair our ability to sell foreign vehicles profitably;

 

·                   with respect to PTL, changes in the financial health of its customers, labor strikes or work stoppages by its employees, a reduction in PTL’s asset utilization rates, continued availability from truck manufacturers and suppliers of vehicles and parts for its fleet, changes in values of used trucks which affects PTL’s profitability on truck sales, compliance costs in regards to its trucking fleet and truck drivers, its ability to retain qualified drivers and technicians, conditions in the capital markets to assure PTL’s continued availability of capital to purchase trucks, the effect of changes in lease accounting rules on PTL’s customer purchase/lease decisions and industry competition, each of which could impact distributions to us;

 

·                   we are dependent on continued availability of our information technology systems;

 

·                   if we lose key personnel, especially our Chief Executive Officer, or are unable to attract additional qualified personnel;

 

·                   new or enhanced regulations relating to automobile dealerships including those that may be issued by the Consumer Finance Protection Bureau in the U.S. or the Financial Conduct Authority in the U.K. restricting automotive financing;

 

·                   changes in tax, financial or regulatory rules or requirements;

 

·                   we could be subject to legal and administrative proceedings which, if the outcomes are adverse to us, could have a material adverse effect on our business;

 

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·                   if state dealer laws in the U.S. are repealed or weakened, our automotive dealerships may be subject to increased competition and may be more susceptible to termination, non-renewal or renegotiation of their franchise agreements; some of our directors and officers may have conflicts of interest with respect to certain related party transactions and other business interests; and

 

·                   shares of our common stock eligible for future sale may cause the market price of our common stock to drop significantly, even if our business is doing well.

 

We urge you to carefully consider these risk factors in evaluating all forward-looking statements regarding our business and you are cautioned not to place undue reliance on the forward-looking statements contained or incorporated by reference herein. All forward-looking statements attributable to us are qualified in their entirety by this cautionary statement.

 

You should be aware that any forward-looking statement made by us in this prospectus or in the documents incorporated by reference into this prospectus, or elsewhere, speaks only as of the date on which we make it. New risks and uncertainties come up from time to time, and it is impossible for us to predict these events or how they may affect us. Except as otherwise required to be disclosed in periodic reports required to be filed by public companies with the SEC pursuant to the SEC’s rules, we have no duty to update or revise these forward-looking statements. In light of these risks and uncertainties, you should keep in mind that any scenarios or results contained in any forward-looking statement made in this prospectus or elsewhere might not occur.

 

Manufacturer disclaimer

 

No domestic or foreign manufacturer or distributor or any of their affiliates has been involved, directly or indirectly, in the preparation of this prospectus or the registration statement of which this prospectus forms a part. No automobile manufacturer or distributor or any of their affiliates has made or been authorized to make any statements or representations in connection with this prospectus, no manufacturer or distributor or any of their affiliates has provided any information or materials that were used in connection with the prospectus, and no automobile manufacturer or distributor or any of their affiliates has any responsibility for the accuracy or completeness of this prospectus or for the registration statement of which this prospectus forms a part.

 

DOCUMENTS INCORPORATED BY REFERENCE INTO THIS PROSPECTUS

 

We file annual, quarterly and current reports and other information with the SEC. See “Where You Can Find More Information.” We filed a registration statement on Form S-3 to register with the SEC the securities described in this prospectus. This prospectus is part of that registration statement. As permitted by SEC rules, this prospectus does not contain all the information contained in the registration statement or the exhibits to the registration statement. The SEC allows us to incorporate by reference the information we file with it into this prospectus. This means that we can disclose important business, financial and other information to you by referring you to other documents separately filed with the SEC.

 

The following documents are incorporated into this prospectus by reference:

 

·                   our Annual Report on Form 10-K for the year ended December 31, 2016;

 

·                   our Current Report on Form 8-K filed on February 9, 2017; and

 

·                   all documents filed by us under Section 13(a), 13(c), 14 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of this prospectus and before the termination of the applicable offering (except for information furnished to the SEC that is not deemed to be “filed” for purposes of the Exchange Act).

 

Any statement made in this prospectus, a prospectus supplement or a document incorporated by reference in this prospectus or a prospectus supplement will be deemed to be modified or superseded for purposes of this prospectus and any applicable prospectus supplement to the extent that a statement contained in an amendment or subsequent amendment to this prospectus or an applicable prospectus supplement or in any other subsequently filed document incorporated by reference herein or therein adds to, updates or changes that statement. Any statement so affected will not be deemed, except as so affected, to constitute a part of this prospectus or any applicable prospectus supplement.

 

You may obtain a copy of these filings, excluding exhibits (unless such exhibits are specifically incorporated by reference), free of charge, by oral or written request directed to: Penske Automotive Group, Inc., 2555 Telegraph Road, Bloomfield Hills, Michigan, 48302, Attention: General Counsel, Phone: (248) 648-2500.

 

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THE COMPANY

 

We are an international transportation services company that operates automotive and commercial truck dealerships principally in the United States, Canada and Western Europe, and distributes commercial vehicles, diesel engines, gas engines, power systems and related parts and services principally in Australia and New Zealand. We employ more than 24,000 people worldwide.

 

Retail Automotive Dealership . We believe we are the second largest automotive retailer headquartered in the U.S. as measured by the $18.7 billion in total retail automotive dealership revenue we generated in 2016. As of December 31, 2016, we operated 355 retail automotive franchises, of which 164 franchises are located in the U.S. and 191 franchises are located outside of the U.S. The franchises outside the U.S. are located primarily in the U.K. In 2016, we retailed and wholesaled more than 556,000 vehicles. We are diversified geographically, with 59% of our total automotive dealership revenues in 2016 generated in the U.S. and Puerto Rico and 41% generated outside the U.S. We offer over 40 vehicle brands, with 72% of our retail automotive dealership revenue in 2016 generated from premium brands, such as Audi, BMW, Mercedes-Benz and Porsche. Each of our dealerships offers a wide selection of new and used vehicles for sale. In addition to selling new and used vehicles, we generate higher-margin revenue at each of our dealerships through maintenance and repair services and the sale and placement of third-party finance and insurance products, third-party extended service and maintenance contracts, and replacement and aftermarket automotive products. Retail automotive dealerships represented 92.8% of our total revenues and 91.2% of our total gross profit in 2016.

 

Retail Commercial Truck Dealership . In November 2014, we acquired a controlling interest in a heavy and medium duty truck dealership group located primarily in Texas and Oklahoma, which we renamed Premier Truck Group (“PTG”). Prior to the 2014 transaction, we held a 32% interest in PTG and accounted for this investment under the equity method. In 2015, we acquired an additional 5% of PTG, bringing our ownership interest to 96%. In April 2016, we acquired the remaining ownership interests of PTG, bringing our total ownership interest to 100%. As of December 31, 2016, PTG operated twenty locations in the U.S. and Canada, including fourteen full-service dealerships offering primarily Freightliner and Western Star branded trucks. Two of these locations, Chattanooga and Knoxville, were acquired in February 2015. Four of these locations were acquired in April 2016 and represent Freightliner and Western Star in the greater Toronto, Canada market area. We acquired two additional retail commercial truck dealerships that also represent Freightliner in December 2016 in the Niagara Falls, Canada market area. PTG also offers a full range of used trucks available for sale as well as service and parts departments, many of which are open 24 hours a day, seven days a week.

 

Commercial Vehicle Distribution . We are the exclusive importer and distributor of Western Star heavy-duty trucks (a Daimler brand), MAN heavy and medium duty trucks and buses (a VW Group brand), and Dennis Eagle refuse collection vehicles, together with associated parts, across Australia, New Zealand and portions of the Pacific. This business, known as Penske Commercial Vehicles Australia (“PCV Australia”), distributes commercial vehicles and parts to a network of more than 70 dealership locations, including six company-owned retail commercial vehicle dealerships. We are also a leading distributor of diesel and gas engines and power systems, principally representing MTU, Detroit Diesel, Mercedes-Benz Industrial, Allison Transmission and MTU Onsite Energy. This business, known as Penske Power Systems (“PPS”), offers products across the on- and off-highway markets in Australia, New Zealand and portions of the Pacific and supports full parts and aftersales service through a network of branches, field locations and dealers across the region. The on-highway portion of this business complements our existing PCV Australia distribution business.

 

Penske Truck Leasing . We currently hold a 23.4% ownership interest in Penske Truck Leasing Co., L.P. (“PTL”), a leading provider of transportation services and supply chain management. PTL is capable of meeting customers’ needs across the supply chain with a broad product offering that includes full-service truck leasing, truck rental and contract maintenance, along with logistic services such as dedicated contract carriage, distribution center management, transportation management and lead logistics provider. On July 27, 2016, we acquired an additional 14.4% ownership interest in PTL from subsidiaries of GE Capital Global Holdings, LLC (collectively, “GE Capital”) for approximately $498.5 million in cash to bring our total ownership interest to 23.4%. Prior to this acquisition, we held a 9.0% ownership interest in PTL. PTL is currently owned 41.1% by Penske Corporation, 23.4% by us, 20.0% by affiliates of Mitsui & Co., Ltd. (“Mitsui”), and 15.5% by GE Capital. We account for our investment in PTL under the equity method, and we therefore record our share of PTL’s earnings on our statements

 

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of income under the caption “Equity in earnings of affiliates,” which also includes the results of our other equity method investments.

 

We are incorporated in the state of Delaware and began dealership operations in October 1992. Our telephone number is (248) 648-2500 and our website is http://www.penskeautomotive.com. The information on our website is not part of this prospectus.

 

CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES

 

The following table sets forth our historical ratios of earnings to fixed charges for the periods indicated.

 

 

 

Year Ended December 31,

 

 

 

2016

 

2015

 

2014

 

2013

 

2012

 

 

 

 

 

 

 

 

 

 

 

 

 

Ratio of earnings to fixed charges (a)

 

3.2

 

3.6

 

3.7

 

3.4

 

3.0

 

 


(a) For the purpose of determining the ratio of earnings to fixed charges, “earnings” consist of income from continuing operations before income taxes and fixed charges. “Fixed charges” consist of interest expense (including amortization of deferred financing costs), capitalized interest and an estimate of the interest included in rent expense.

 

RISK FACTORS

 

An investment in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully consider the risks and uncertainties described under “Risk Factors” or “Disclosure Regarding Forward-Looking Statements” in the applicable prospectus supplement and in our most recent annual report on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K, including any amendments to such reports, incorporated in the registration statement of which this prospectus forms a part, together with all other information contained and incorporated by reference in this prospectus and the applicable prospectus supplement. The risks and uncertainties described herein and therein are not the only ones facing us. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also occur. The occurrence of any of those risks and uncertainties may materially adversely affect our financial condition, results of operations, cash flows or business. In that case, the price or value of our securities could decline and you could lose all or part of your investment.

 

USE OF PROCEEDS

 

Unless otherwise described in the applicable prospectus supplement, the net proceeds from the sale of the offered securities by us will be used for general corporate purposes, which may include repayment of indebtedness, the financing of capital expenditures, future acquisitions and additions to our working capital.  Additional information on the use of net proceeds from any sale of securities offered by us pursuant to this prospectus may be set forth in the prospectus supplement or other offering material relating to such offering.

 

We will not receive any proceeds from the resale of securities by selling securityholders pursuant to this prospectus and the applicable prospectus supplement.

 

DESCRIPTION OF DEBT SECURITIES

 

This section describes the general terms that will apply to any debt securities that we may offer in the future and to which a future prospectus supplement may relate. At the time that we offer debt securities, we will describe in the prospectus supplement that relates to that offering (1) the specific terms of the debt securities and (2) the extent to which the general terms described in this section apply to those debt securities.

 

We may issue debt securities consisting of senior securities and subordinated securities that may be secured or unsecured. The senior securities are to be issued under an indenture between Penske Automotive and The Bank of New York Mellon Trust Company, N.A., as trustee. The subordinated securities are to be issued under a separate indenture, dated as of November 21, 2014, between Penske Automotive and The Bank of New York Mellon Trust

 

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Company, N.A., as trustee. Forms of the indentures for the senior securities and the subordinated securities are included or incorporated by reference as exhibits to the registration statement of which this prospectus forms a part. In the discussion that follows, we summarize particular provisions of the indentures. Our discussion of indenture provisions is only a summary and is not complete. You should read the indentures including changes to be filed as part of any supplemental prospectus, for a more complete understanding of the provisions we describe.

 

The aggregate principal amount of debt securities that we may issue under each of the indentures is unlimited.  The indenture allows us to reopen a previous issue of a series of debt securities and issue additional debt securities of that issue.

 

To the extent that debt securities are guaranteed, the guarantees will be set forth in the applicable indenture or supplements thereto. To the extent that debt securities or related guarantees are secured, the security interest will be granted under and subject to the applicable indenture or supplements thereto, security agreement, pledge agreements, mortgages, intercreditor agreements, lien subordination agreements and other documents as may be required.

 

General

 

Each prospectus supplement relating to a particular offering of debt securities will describe the specific terms of debt securities. Those specific terms will include the following:

 

·                                           the title of the debt securities;

 

·                                           any limit on the aggregate principal amount of the debt securities of a particular series;

 

·                                           whether any of the debt securities are to be issuable in permanent global form;

 

·                                           the date or dates on which the debt securities will mature;

 

·                                           the rate or rates at which the debt securities will bear interest, if any, or the formula pursuant to which such rate or rates shall be determined, and the date or dates from which any such interest will accrue;

 

·                                           the payment dates on which interest, if any, on the debt securities will be payable and the regular record dates which will be used to determine who is entitled to receive each interest payment;

 

·                                           the terms, if any, upon which the debt securities may be converted into shares of our common stock;

 

·                                           any mandatory or optional sinking fund or analogous provisions;

 

·                                           each office or agency where, subject to the terms of the applicable indenture, the principal of and any premium and interest on the debt securities will be payable and each office or agency where, subject to the terms of the applicable indenture, the debt securities may be presented for registration of transfer or exchange;

 

·                                           the date, if any, after which and the price or prices at which the debt securities may be redeemed, in whole or in part at our option or at the option of the holder of the debt securities, or according to any mandatory redemption provisions, and the other detailed terms and provisions of any such optional or mandatory redemption provisions;

 

·                                           the denominations in which any debt securities will be issuable, if other than denominations of $1,000 and any integral multiple thereof;

 

·                                           the portion of the principal amount of the debt securities, if other than the principal amount, payable upon acceleration of maturity;

 

·                                           the person(s), if other than the trustee, who shall be the security registrar, the initial paying agent and the depositary for the debt securities;

 

·                                           the terms of subordination applicable to any series of subordinated securities;

 

·                                           the terms of any guarantees; and

 

·                                           any other terms of the debt securities inconsistent with the provisions of the indentures.

 

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Except where specifically described in the applicable prospectus supplement, the indentures do not contain any covenants designed to protect holders of the debt securities against a reduction in our creditworthiness, including in the event of a highly leveraged transaction, or to prohibit other transactions which may adversely affect holders of the debt securities.

 

We may issue debt securities as original issue discount securities to be sold at a substantial discount below their stated principal amounts. We will describe in the relevant prospectus supplement any special United States federal income tax considerations that may apply to debt securities issued with such an original issue discount. Special United States tax considerations applicable to any debt securities that are denominated in a currency other than United States dollars or that use an index to determine the amount of payments of principal of and any premium and interest on the debt securities will also be set forth in a prospectus supplement.

 

Global Securities

 

According to the indentures, so long as the depositary’s nominee is the registered owner of a global security, that nominee will be considered the sole owner of the debt securities represented by the global security for all purposes. Except as provided in the relevant prospectus supplement, owners of beneficial interests in a global security will not be entitled to have debt securities of the series represented by the global security registered in their names, will not receive or be entitled to receive physical delivery of debt securities of such series in definitive form and will not be considered the owners or holders of the debt securities under the indentures. Principal of, premium, if any, and interest on a global security will be payable in the manner described in the relevant prospectus supplement.

 

Form, Exchange and Transfer

 

We will issue the debt securities of each series only in registered form, without coupons, and, unless otherwise specified in the applicable prospectus supplement, only in denominations of $1,000 and integral multiples thereof.

 

Holders may, at their option, but subject to the terms of the indentures and the limitations that apply to global securities, exchange their debt securities for other debt securities of the same series containing identical terms and provisions, in any authorized denomination and of a like tenor and aggregate principal amount.

 

Subject to the terms of the indentures and the limitations that apply to global securities, holders may exchange debt securities as provided above. No service charge applies for any registration of transfer or exchange of debt securities, but the holder may have to pay any tax or other governmental charge associated with registration of transfer or exchange. We have appointed the trustee as security registrar. Any transfer agent (in addition to the security registrar) initially designated by us for any debt securities will be named in the applicable prospectus supplement. We may at any time designate additional transfer agents or cancel the designation of any transfer agent or approve a change in the office through which any transfer agent acts. However, we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.

 

If the debt securities are to be partially redeemed, we will not be required to:

 

·                                           issue or register the transfer of or exchange any debt security during a period beginning 15 days before the day of the selection for redemption of the debt securities of the applicable series and ending on the close of business on the day of such selection; or

 

·                                           register the transfer of or exchange any debt security selected for redemption, in whole or in part, except the unredeemed portion of any debt security being redeemed in part.

 

Payment and Paying Agents

 

We will pay interest on a debt security on any interest payment date to the registered holder of the debt security as of the close of business on the regular record date for payment of interest. If the debt securities do not remain in book entry form, the record date for each interest payment date will be the close of business on the fifteenth calendar day immediately preceding the applicable interest payment date. In such instance, we will pay such interest either:

 

·                                           on a special record date between 10 and 15 days before the payment; or

 

·                                           in any other lawful manner of payment that is consistent with the requirements of any securities exchange on which the debt securities may be listed for trading.

 

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We will pay the principal of and any premium and interest on the debt securities at the office of the paying agent or paying agents that we designate. We may pay interest by check mailed to the address of the person entitled to the payment as the address appears in the security register. We have designated the corporate trust office of the trustee as our sole paying agent for payments on the debt securities. Any other paying agents initially designated by us for the debt securities will be named in the applicable prospectus supplement. We may at any time designate additional paying agents, rescind the designation of any paying agent or approve a change in the office through which any paying agent acts.

 

Any money paid by us to a paying agent for the payment of the principal of or any premium or interest on any debt security which remains unclaimed at the end of two years after the principal, premium or interest has become due and payable may be repaid to us at our request.

 

Subordination

 

We may issue subordinated securities from time to time in one or more series under the subordinated indenture. Our subordinated securities will be subordinated and junior in right of payment to certain of our other indebtedness to the extent set forth in the applicable prospectus supplement.

 

Guarantees

 

Certain of our material domestic subsidiaries named as registrants in the registration statement of which this prospectus is a part, or any combination of them, may, jointly and severally, guarantee any or all of the series of debt securities. Guarantees may be full or limited, senior or subordinated, secured or unsecured, or any combination thereof. In all cases, however, the obligations of each guarantor under its guarantee will be limited as necessary to prevent the guarantee from being rendered voidable under fraudulent conveyance, fraudulent transfer or similar laws affecting the rights of creditors generally. The guarantees will not place a limitation on the amount of additional indebtedness that may be incurred by the guarantors.

 

Satisfaction and Discharge

 

We may be discharged from our obligations on the debt securities of any series that have matured or will mature or be redeemed within one year if we deposit with the trustee enough cash or U.S. government obligations to pay all the principal, interest and any premium due to the stated maturity date or redemption date of debt securities.

 

Merger and Consolidation

 

Each indenture provides that we may consolidate or merge with or into any other corporation and we may sell, lease or convey all or substantially all of our assets to any corporation, organized and existing under the laws of the United States of America or any U.S. state, provided that the corporation (if other than us) formed by or resulting from any such consolidation or merger or which shall have received such assets shall assume payment of the principal of (and premium, if any), any interest on and any additional amounts payable with respect to the debt securities and the performance and observance of all of the covenants and conditions of such indenture to be performed or observed by us.

 

Modification and Waiver

 

The indentures provide that we and the trustee may modify and amend the indentures with the consent of the holders of a majority in principal amount of the outstanding debt securities of each series affected by the modification or amendment, provided that no such modification or amendment may, without the consent of the holder of each outstanding debt security affected by the modification or amendment:

 

·                                           change the stated maturity of the principal of, or any installment of interest on or any additional amounts payable with respect to, any debt security or change the redemption price;

 

·                                           reduce the principal amount of, or interest on, any debt security or reduce the amount of principal which could be declared due and payable prior to the stated maturity;

 

·                                           change the place or currency of any payment of principal or interest on any debt security;

 

·                                           impair the right to institute suit for the enforcement of any payment on or with respect to any debt security;

 

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·                                           reduce the percentage in principal amount of the outstanding debt securities of any series, the consent of whose holders is required to modify or amend each indenture; or

 

·                                           modify the foregoing requirements or reduce the percentage of outstanding debt securities necessary to waive any past default to less than a majority.

 

Except with respect to certain fundamental provisions, the holders of at least a majority in principal amount of outstanding debt securities of any series may, with respect to such series, waive past defaults under each indenture.

 

Events of Default, Waiver and Notice

 

Unless otherwise provided in the applicable prospectus supplement and supplemental indenture, an event of default with respect to any debt security of any series is defined in each indenture as being:

 

·                                           our default in payment of any interest on or any additional amounts payable in respect of any debt security of that series which remains uncured for a period of 30 days;

 

·                                           our default in payment of principal (and premium, if any) on the debt securities of that series when due either at maturity, upon optional or mandatory redemption, as a sinking fund installment, by declaration or otherwise;

 

·                                           our default in the performance or breach of any other covenant or warranty in respect of the debt securities of such series in each indenture which shall not have been remedied for a period of 90 days after notice;

 

·                                           our bankruptcy, insolvency or reorganization; and

 

·                                           any other event of default established for the debt securities of such series set forth in the applicable prospectus supplement and supplemental indenture.

 

Each indenture provides that the trustee may withhold notice to the holders of the debt securities of any default with respect to any series of debt securities (except in payment of principal of, or interest on, the debt securities) if the trustee considers it in the interest of the holders of the debt securities of such series to do so.

 

Each indenture also provides that:

 

·                                           if an event of default due to a default in payment of principal of, or interest on, any series of debt securities, or because of a default in the performance or breach of any other covenant or agreement applicable to the debt securities of such series but not applicable to all outstanding debt securities, shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of the outstanding debt securities of such series then may declare the principal of all debt securities of that series, or such lesser amount as may be provided for in the debt securities of that series, and interest accrued thereon, to be due and payable immediately; and

 

·                                           if the event of default resulting from our default in the performance of any of the other covenants or agreements in each indenture applicable to all outstanding debt securities under such indenture or certain events of bankruptcy, insolvency and reorganization shall have occurred and be continuing, either the trustee or the holders of not less than 25% in principal amount of all outstanding debt securities (treated as one class) may declare the principal of all debt securities, or such lesser amount as may be provided for in such securities, and interest accrued thereon, to be due and payable immediately,

 

but upon certain conditions such declarations may be annulled and past defaults may be waived (except a continuing default in payment of principal of, or premium or interest on, the debt securities) by the holders of a majority in principal amount of the outstanding debt securities of such series (or of all series, as the case may be).

 

The holders of a majority in principal amount of the outstanding debt securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to debt securities of such series provided that such direction shall not be in conflict with any rule of law or the applicable indenture and shall not be unduly prejudicial to the holders not taking part in such direction. The trustee may also take any other action it deems

 

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proper which is consistent with the holders’ direction. If an event of default or other default occurs and is continuing after any applicable notice and/or cure period, then the trustee may in its discretion (and subject to the rights of the holders to control remedies as described above and certain other conditions specified in the indentures) bring such judicial proceedings as the trustee shall deem appropriate or proper.

 

The indentures provide that no holder of any debt security will have any right to institute any proceeding, judicial or otherwise, with respect to the indentures for the appointment of a receiver or trustee for any other remedy thereunder unless:

 

·                                           that holder has previously given the trustee written notice of a continuing event of default;

 

·                                           the holders of not less than 25% in principal amount of the outstanding debt securities of any series have made written request to the trustee to institute proceedings in respect of that event of default and have offered the trustee reasonable indemnity against costs and liabilities incurred in complying with such request; and

 

·                                           for 60 days after receipt of such notice, request and offer of indemnity, the trustee has failed to institute any such proceeding and no direction inconsistent with such request has been given to the trustee during such 60-day period by the holders of a majority in principal amount of outstanding debt securities of that series.

 

Furthermore, no holder will be entitled to institute any such action if and to the extent that such action would disturb or prejudice the rights of other holders.

 

However, each holder has an absolute and unconditional right to receive payment when due and to bring a suit to enforce that right. We are required to furnish to the trustee under each indenture annually a statement as to our performance or fulfillment of our obligations under the applicable indenture and noting any default in such performance of fulfillment.

 

The Trustee

 

The Bank of New York Mellon Trust Company, N.A. will serve as the trustee under each indenture.

 

DESCRIPTION OF CAPITAL STOCK

 

The following description of our capital stock is only a summary and is subject to the provisions of our certificate of incorporation and by-laws, in each case as amended, which are included as exhibits to the registration statement on Form S-3 of which this prospectus forms a part, and the applicable provisions of the laws of Delaware, our State of incorporation.

 

General

 

Our authorized capital stock consists of (a) 240,000,000 shares of voting common stock, par value $0.0001 per share, (b) 7,125,000 shares of non-voting common stock, par value $0.0001 per share, (c) 20,000,000 shares of Class C common stock, par value $0.0001 per share, and (d) 100,000 shares of preferred stock, par value $0.0001 per share. As of February 22, 2017 we had 85,478,121 outstanding shares of voting common stock and no outstanding shares of non-voting common stock, Class C common stock, or preferred stock. As of February 22, 2017, approximately 3.3 million shares of common stock were reserved for issuance to employees under our 2015 Equity Incentive Plan.

 

The following summary of the material terms and provisions of our capital stock is not complete and is subject to the terms included in our restated certificate of incorporation, our by-laws and Delaware law. Reference is made to those documents and to Delaware law for a detailed description of the provisions summarized below.

 

Limitation on Liability and Indemnification Matters

 

Our certificate of incorporation limits the liability of our directors to our Company and our stockholders to the fullest extent permitted by Delaware law. Specifically, our directors are not personally liable for money damages for breach of fiduciary duty as a director, except for liability:

 

·                                           under Section 174 of the Delaware General Corporation Law, which concerns unlawful payments of dividends, stock purchases or redemptions;

 

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·                                           for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

 

·                                           for any breach of the director’s duty of loyalty to us or our stockholders; and

 

·                                           for any transaction from which the director derived an improper personal benefit.

 

Our certificate of incorporation and bylaws also contain provisions indemnifying our directors, officers, employees and agents to the fullest extent permitted by Delaware law. The indemnification permitted under Delaware law is not exclusive of any other rights to which such persons may be entitled under our by-laws, any agreement, a vote of stockholders or otherwise.

 

In addition, we maintain directors’ and officers’ liability insurance to provide our directors and officers with insurance coverage for losses arising from claims based on breaches of duty, negligence, error and other wrongful acts.

 

Anti-takeover Effects of Our Certificate of Incorporation and By-laws and Provisions of Delaware Law

 

A number of provisions in our certificate of incorporation, by-laws and Delaware law may make it more difficult to acquire control of us by various means. These provisions could deprive the stockholders of opportunities to realize a premium on the shares of common stock owned by them. In addition, these provisions may adversely affect the prevailing market price of the common stock. These provisions are intended to:

 

·                                           enhance the likelihood of continuity and stability in the composition of the board and in the policies formulated by the board;

 

·                                           discourage certain types of transactions which may involve an actual or threatened change in control of us;

 

·                                           discourage certain tactics that may be used in proxy fights;

 

·                                           encourage persons seeking to acquire control of us to consult first with the board of directors to negotiate the terms of any proposed business combination or offer; and

 

·                                           reduce our vulnerability to an unsolicited proposal for a takeover that does not contemplate the acquisition of all of our outstanding shares or that is otherwise unfair to our stockholders.

 

No Stockholder Action Without a Meeting. Our certificate of incorporation and by-laws provide that stockholders may only take action at an annual or special meeting.

 

Special Meetings of Stockholders. Our by-laws provide that special meetings of our stockholders may be called only by the board of directors, the chairman of the board or the chief executive officer and must be called by the chief executive officer only upon the request of the holders of a majority of the outstanding shares of capital stock entitled to vote. This limitation on the right of stockholders to call a special meeting could make it more difficult for stockholders to initiate actions that are opposed by the board of directors, the chairman of the board or the chief executive officer. These actions could include the removal of an incumbent director or the election of a stockholder nominee as a director. They could also include the implementation of a rule requiring stockholder ratification of specific defensive strategies that have been adopted by the board of directors with respect to unsolicited takeover bids. In addition, the limited ability of the stockholders to call a special meeting of stockholders may make it more difficult to change the existing board and management.

 

Issuance of Preferred Stock. The ability of our board to establish the rights and issue substantial amounts of preferred stock without the need for stockholder approval, while providing desirable flexibility in connection with possible acquisitions, financings and other corporate transactions, may among other things, discourage, delay, defer or prevent a change in control of our Company.

 

Authorized But Unissued Shares of Common Stock. The authorized but unissued shares of common stock are available for future issuance without stockholder approval. These additional shares may be utilized for a variety of corporate purposes, including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued shares of common stock could render more difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender offer, merger or otherwise.

 

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Section 203 of the Delaware General Corporation Law. We must comply with the provisions of Section 203 of the Delaware General Corporation Law. In general, Section 203 prohibits a publicly held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the date of the transaction in which the person became an interested stockholder, unless the business combination is approved in a prescribed manner.

 

A “business combination” includes a merger, consolidation, sale or other disposition of assets having an aggregate value in excess of 10% of the consolidated assets of the corporation and some transactions that would increase the interested stockholder’s proportionate share ownership in the corporation. An “interested stockholder” is a person who, together with affiliates and associates, owns, or, in some cases, within three years prior, did own, 15% or more of the corporation’s voting stock. Under Section 203, a business combination between us and an interested stockholder is prohibited unless it satisfies one of the following three conditions:

 

·                                           our board of directors must have previously approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder;

 

·                                           upon completion of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of our voting stock outstanding at the time the transaction commenced, excluding, for purposes of determining the number of shares outstanding, shares owned by (1) persons who are directors and also officers and (2) employee stock plans, in some instances; and

 

·                                           the business combination is approved by a majority of our board of directors and authorized at an annual or special meeting of the stockholders by the affirmative vote of the holders of at least 66 2/3% of the outstanding voting stock that is not owned by the interested stockholder.

 

DESCRIPTION OF PREFERRED STOCK

 

General

 

Subject to limitations prescribed by Delaware law and our certificate of incorporation, our board of directors is authorized to issue, from the authorized but unissued shares of capital stock, preferred stock in series and to establish from time to time the number of shares of preferred stock to be included in the series and to fix the designation and any preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the shares of each series, and such other subjects or matters as may be fixed by resolution of our board of directors or one of its duly authorized committees. As of the date of this prospectus, we have not issued any shares of preferred stock.

 

Reference is made to any prospectus supplement relating to any series of shares of preferred stock being offered in such prospectus supplement for the specific terms of the series, including:

 

·                                           the title and stated value of the series of shares of preferred stock;

 

·                                           the number of shares of the series of shares of preferred stock offered, the liquidation preference per share and the offering price of such shares of preferred stock;

 

·                                           the dividend rate(s), period(s) and/or payment date(s) or the method(s) of calculation for those values relating to the shares of preferred stock of the series;

 

·                                           the date from which dividends on shares of preferred stock of the series shall cumulate, if applicable;

 

·                                           the procedures for any auction and remarketing, if any, for shares of preferred stock of the series;

 

·                                           the provision for a sinking fund, if any, for shares of preferred stock of the series;

 

·                                           the provision for redemption, if applicable, of shares of preferred stock of the series;

 

·                                           any listing of the series of shares of preferred stock on any securities exchange;

 

·                                           the terms and conditions, if applicable, upon which shares of preferred stock of the series will be convertible into shares of common stock or other securities, including the conversion price, or manner of calculating the conversion price;

 

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·                                           whether interests in shares of preferred stock of the series will be represented by global securities;

 

·                                           a discussion of federal income tax considerations applicable to shares of preferred stock of the series;

 

·                                           the relative ranking and preferences of shares of preferred stock of the series as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs;

 

·                                           any limitations on issuance of any series of shares of preferred stock ranking senior to or on a parity with the series of shares of preferred stock as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs;

 

·                                           any limitations on direct or beneficial ownership and restrictions on transfer of shares of preferred stock of the series; and

 

·                                           any additional rights, preferences, qualifications, limitations and restrictions of the series.

 

Any shares of preferred stock sold hereunder, or issued upon conversion, exercise or exchange of other securities sold hereunder, will be duly authorized, validly issued and, to the extent provided in the applicable certificate of designations, fully paid and nonassessable. This means that, to the extent provided in the applicable certificate of designations, you have paid the full purchase price for your shares and will not be assessed any additional amount for your shares.

 

Our board of directors will designate the transfer agent and registrar for each series of preferred stock and the exchange or market on which such series will be listed or eligible for trading, if any, at the time it authorizes such series.

 

To the extent that applicable law or the applicable certificate of designations provides that holders of shares of a series of preferred stock are entitled to voting rights, each holder shall be entitled to vote ratably (relative to each other such holder) on all matters submitted to a vote of such holders. Each holder may exercise such vote either in person or by proxy.

 

Any description of our preferred stock set forth in a prospectus supplement is only a summary and is subject to the provisions of our certificate of incorporation and by-laws, in each case as amended, which are included as exhibits to the registration statement on Form S-3 of which this prospectus forms a part, the certificate of designations governing the series of preferred stock, and the applicable provisions of the laws of Delaware, our State of incorporation.

 

Rank

 

Unless otherwise specified in the applicable prospectus supplement, the shares of preferred stock of each series will rank with respect to dividend rights and rights upon liquidation, dissolution or winding up of our affairs:

 

·                                           senior to all classes or series of shares of common stock, and to all equity securities ranking junior to the series of shares of preferred stock;

 

·                                           on a parity with all equity securities issued by us the terms of which specifically provide that such equity securities rank on a parity with shares of preferred stock of the series; and

 

·                                           junior to all equity securities issued by us the terms of which specifically provide that such equity securities rank senior to shares of preferred stock of the series.

 

Dividends

 

Subject to the preferences to which holders of shares of any other series of preferred stock may be entitled and to the extent that the applicable certificate of designations so provides, the holders of shares of a series of preferred stock shall be entitled to receive ratably (relative to each other such holder) such dividends, if any, as may be declared from time to time in respect of shares of such series by our board of directors out of funds (including cash, securities and other property) legally available therefor. Subject to the prior rights of creditors and to preferences to which holders of shares of any other series of preferred stock may be entitled and to the extent that the applicable certificate of designations so provides, the holders of such shares of a series of preferred stock are entitled to receive ratably (relative to each other such holder) our assets (including cash, securities and other property) distributed upon our liquidation, dissolution or winding up.

 

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DESCRIPTION OF COMMON STOCK

 

General

 

Each outstanding share of our common stock is identical in all respects and entitles its holder to the same rights and privileges, except as otherwise described below. Holders of shares of common stock do not have preemptive or other rights to subscribe for additional shares of common stock or for any of our other securities.

 

Voting Common Stock. Each holder of voting common stock is entitled to one vote per share on all matters to be voted on by our stockholders. In addition, some stockholders that are “regulated stockholders” (as defined below) may at any time convert their shares of voting common stock into an equal number of shares of non-voting common stock in order to comply with applicable regulatory requirements.

 

Non-Voting Common Stock. Holders of non-voting common stock are generally not entitled to vote that stock on any matter on which our stockholders are entitled to vote.

 

Holders of non-voting common stock can vote as a separate class on any merger or consolidation of our Company with or into another entity or entities, or any recapitalization or reorganization, in which shares of non-voting common stock would receive or be exchanged for consideration different on a per share basis from consideration received with respect to or in exchange for the shares of voting common stock or would otherwise be treated differently from shares of voting common stock in connection with such transaction, except that shares of non-voting common stock may, without such a separate class vote, receive non-voting securities which are otherwise identical to the voting securities received with respect to voting common stock so long as (1) the non-voting securities are convertible into the voting securities on the same terms as the non-voting common stock is convertible into voting common stock and (2) all other consideration is equal on a per share basis. Holders of shares of non-voting common stock can vote as a separate class on any amendment to the provisions contained in this paragraph.

 

Holders of non-voting common stock may at any time convert any or all of their shares into an equal number of shares of voting common stock. However, a holder of non-voting common stock may not convert its shares if, as a result of that conversion, the holder would control (1) more shares of our voting common stock or other securities than the holder is permitted to own pursuant to any regulation applicable to it or (2) with respect to holders regulated by state insurance law, 5% or more of our voting capital stock. However, the shares of non-voting common stock may be converted into voting common stock if the holder believes that such converted shares will be transferred within 15 days pursuant to a “conversion event” and the holder agrees not to vote such shares of voting common stock prior to the conversion event and undertakes to convert such shares back into non-voting common stock if such shares are not transferred pursuant to a conversion event. A “conversion event” includes a public offering by us and certain changes of control of our Company.

 

We may not convert or directly or indirectly redeem, purchase or otherwise acquire any shares of voting common stock or any other class of our capital stock or take any other action affecting the voting rights of such shares if such action will increase the percentage of any class of outstanding voting securities owned or controlled by any regulated stockholder, unless we give written notice of such action to each regulated stockholder. We must defer making any such conversion, redemption, purchase or acquisition for a period of 30 days after giving notice to the regulated stockholders.

 

We may not be a party to any reorganization, merger or consolidation pursuant to which any regulated stockholder would be required to take (1) any voting securities that would cause such holder to violate any law, regulation or other governmental requirement or (2) any securities convertible into voting securities which if such conversion occurred would cause such holder to violate any law, regulation or governmental requirement. We currently have no outstanding shares of non-voting common stock.

 

Class C Common Stock. If any Class C common stock is issued, each holder of Class C common stock would be entitled to one-tenth of one vote for each share of Class C common stock held by such holder. We currently have no outstanding shares of Class C common stock.

 

The holders of shares of voting common stock and Class C common stock and, on any matter on which the holders of shares of non-voting common stock are entitled to vote, the holders of shares of non-voting common stock, all vote together as a single class; provided, however, that the holders of shares of non-voting common stock or Class C common stock are entitled to vote as a separate class on any amendment, repeal or modification of any

 

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provision of the certificate of incorporation that adversely affects the powers, preference or special rights of the holders of the non-voting common stock or Class C common stock, respectively.

 

For purposes of this section, “regulated stockholder” includes any stockholder that is subject to Regulation Y and owns our common stock or preferred stock.

 

Transfer Agent and Registrar

 

The transfer agent and registrar for our common stock is Computershare Limited.

 

Listing

 

Our common stock is listed on the New York Stock Exchange under the symbol “PAG.”

 

DESCRIPTION OF WARRANTS TO PURCHASE DEBT SECURITIES

 

The following summarizes the terms of debt warrants we may issue. We will issue the debt warrants under a debt warrant agreement that we will enter into with a bank or trust company, as debt warrant agent, that we select at the time of issue.

 

Determination of Terms

 

We may issue debt warrants evidenced by debt warrant certificates under the debt warrant agreement independently or together with any debt securities we offer by any prospectus supplement. The prospectus supplement will describe the particular terms of the debt warrants it covers. These terms may include:

 

·                                           the price at which the debt warrants will be issued;

 

·                                           the currency or composite currency for which the debt warrants may be purchased;

 

·                                           the designation, aggregate principal amount, currency or composite currency and terms of the debt securities which may be purchased upon exercise of the debt warrants;

 

·                                           if applicable, the designation and terms of the debt securities with which the debt warrants are issued and the number of debt warrants issued with each of such debt securities;

 

·                                           if applicable, the date on and after which the debt warrants and the related debt securities will be separately transferable;

 

·                                           the principal amount of debt securities purchasable upon exercise of each debt warrant and the price at which and the currency or composite currency in which such principal amount of debt securities may be purchased upon such exercise;

 

·                                           the date on which the right to exercise the debt warrants will commence and the date on which the right will expire and, if the debt warrants are not continuously exercisable throughout such period, the specific date or dates on which they will be exercisable;

 

·                                           whether the debt warrant certificates representing the debt warrants will be in registered form or bearer form, or both;

 

·                                           any applicable Federal income tax consequences;

 

·                                           the identity of the debt warrant agent for the debt warrants; and

 

·                                           any other terms of the debt warrants which conflict with the debt warrant agreement.

 

You may exchange debt warrant certificates for new debt warrant certificates of different denominations and may present debt warrant certificates for registration of transfer at the corporate trust office of the debt warrant agent, which will be listed in the prospectus supplement. Debt warrant holders, as such, do not have any of the rights of holders of debt securities, except to the extent that the consent of debt warrant holders may be required for certain

 

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modifications of the terms of an indenture or form of the debt security, as the case may be, and the series of debt securities issuable upon exercise of the debt warrants. In addition, debt warrant holders are not entitled to payments of principal of and interest, if any, on the debt securities.

 

Exercise of Debt Warrants

 

You may exercise debt warrants by surrendering the debt warrant certificate at the corporate trust office of the debt warrant agent, with payment in full of the exercise price. Upon the exercise of debt warrants, the debt warrant agent will, as soon as practicable, deliver the debt securities in authorized denominations in accordance with your instructions. If less than all the debt warrants evidenced by the debt warrant certificate are exercised, the agent will issue a new debt warrant certificate for the remaining amount of debt warrants.

 

DESCRIPTION OF WARRANTS TO PURCHASE COMMON OR PREFERRED STOCK

 

The following summarizes the terms of common stock warrants and preferred stock warrants we may issue. This description is subject to the detailed provisions of a stock warrant agreement that we will enter into with a stock warrant agent we select at the time of issue.

 

General Terms

 

We may issue stock warrants evidenced by stock warrant certificates under the stock warrant agreement independently or together with any securities we offer by any prospectus supplement. If we offer stock warrants, the prospectus supplement will describe the particular terms of the stock warrants it covers. These terms may include:

 

·                                           the offering price, if any;

 

·                                           the number of shares of common or preferred stock purchasable upon exercise of one stock warrant and the initial price at which the shares may be purchased upon exercise;

 

·                                           if applicable, the designation and terms of the preferred stock purchased upon exercise of the preferred stock warrants;

 

·                                           the dates on which the right to exercise the stock warrants begins and expires;

 

·                                           certain United States federal income tax consequences;

 

·                                           call provisions, if any;

 

·                                           the currencies in which the offering price and exercise price are payable; and

 

·                                           if applicable, the anti-dilution provisions of the stock warrants.

 

The shares of common stock or preferred stock we issue upon exercise of the stock warrants will, when issued in accordance with the stock warrant agreement, be validly issued, fully paid and non-assessable.

 

Exercise of Stock Warrants

 

You may exercise stock warrants by surrendering to the stock warrant agent the stock warrant certificate, which indicates your election to exercise all or a portion of the stock warrants evidenced by the certificate. Surrendered stock warrant certificates must be accompanied by payment of the exercise price in the form of cash or a check. The stock warrant agent will deliver certificates evidencing duly exercised stock warrants to the transfer agent. Upon receipt of the certificates and the exercise price, the transfer agent will deliver a certificate representing the number of shares of common stock or preferred stock purchased. If you exercise fewer than all the stock warrants evidenced by any certificate, the stock warrant agent will deliver a new stock warrant certificate representing the unexercised stock warrants.

 

No Rights As Shareholders

 

Holders of stock warrants, as such, are not entitled to vote, to consent, to receive dividends or to receive notice as holders of common stock or preferred stock with respect to any meeting of such holders, or to exercise any rights whatsoever as holders of our common stock or preferred stock.

 

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PLAN OF DISTRIBUTION

 

We and/or selling securityholders may sell the offered securities to or through one or more underwriters for public offering and sale by them, may sell the offered securities to investors directly or through agents, which agents may be affiliated with us, or otherwise through a combination of any of such methods of sale. Direct sales to investors may be accomplished through subscription offerings or through subscription rights distributed to our stockholders. In connection with subscription offerings or the distribution of subscription rights to stockholders, if all of the underlying offered securities are not subscribed for, we may sell such unsubscribed offered securities to third parties directly or through agents and, in addition, whether or not all of the underlying offered securities are subscribed for, we may concurrently offer additional offered securities to third parties directly or through agents, which agents may be affiliated with us. Any underwriter or agent involved in the offer and sale of the offered securities will be named in the applicable prospectus supplement.

 

Any selling securityholder will act independently of us in making decisions with respect to the timing, manner and size of each sale of securities covered by this prospectus and the applicable prospectus supplement.

 

The distribution of the offered securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, or at prices related to the prevailing market prices at the time of sale or at negotiated prices, any of which may represent a discount from the prevailing market price. We and/or selling securityholders also may, from time to time, authorize underwriters acting as our agents to offer and sell the offered securities upon the terms and conditions set forth in the applicable prospectus supplement. In connection with the sale of offered securities, underwriters may be deemed to have received compensation in the form of underwriting discounts or commissions and may also receive commissions from purchasers of offered securities for whom they may act as agent. Underwriters may sell offered securities to or through dealers, and such dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent.

 

Our securities, including our common stock, may also be sold in one or more of the following transactions: (i) block transactions (which may involve crosses) in which a broker-dealer may sell all or a portion of such shares as agent, but may position and resell all or a portion of the block as principal to facilitate the transaction; (ii) purchases by any such broker-dealer as principal, and resale by such broker-dealer for its own account pursuant to a prospectus supplement; (iii) a special offering, an exchange distribution or a secondary distribution in accordance with applicable New York Stock Exchange or other stock exchange, quotation system or over-the-counter market rules; (iv) ordinary brokerage transactions and transactions in which any such broker-dealer solicits purchasers; (v) sales “at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise, for such shares; and (vi) sales in other ways not involving market makers or established trading markets, including direct sales to purchasers.

 

Any underwriting compensation paid to underwriters or agents in connection with the offering of offered securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the offered securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the offered securities may be deemed to be underwriting discounts and commissions, under the Securities Act of 1933, as amended (the “Securities Act”). Underwriters, dealers and agents may be entitled, under agreements entered into with us and/or selling securityholders, to indemnification against and contribution toward civil liabilities, including liabilities under the Securities Act. Any such indemnification agreements will be described in the applicable prospectus supplement.

 

If five percent or more of the net proceeds of any offering of securities made under this prospectus will be received by members of the Financial Industry Regulatory Authority, which we refer to in this prospectus as “FINRA,” participating in the offering or by affiliates or associated persons of such FINRA members, the offering will be conducted in accordance with FINRA Conduct Rule 5121.

 

The maximum aggregate commission or discount to be received by any member of FINRA or independent broker dealer will not be greater than 8% of the gross proceeds of the sale of securities offered pursuant to this prospectus and any applicable prospectus supplement.

 

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To comply with the securities laws of some states, if applicable, the securities may be sold in these jurisdictions only through registered or licensed brokers or dealers. In addition, in some states the securities may not be sold unless they have been registered or qualified for sale or an exemption from registration or qualification requirements is available and is complied with.

 

Some of the underwriters and their affiliates may be customers of, engage in transactions with and perform services for us and our subsidiaries in the ordinary course of business.

 

SELLING SECURITYHOLDERS

 

Selling securityholders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us, our securities in various private transactions. Such selling securityholders may be parties to registration rights agreements with us, or we otherwise may have agreed or will agree to register their securities for resale. The initial purchasers of our securities, as well as their transferees, pledgees, donees or successors, all of whom we refer to as “selling securityholders,” may from time to time offer and sell the securities pursuant to this prospectus and any applicable prospectus supplement.

 

The applicable prospectus supplement will set forth the name of each selling securityholder and the number of and type of securities beneficially owned by such selling securityholder that are covered by such prospectus supplement. The applicable prospectus supplement also will disclose whether any of the selling securityholders have held any position or office with, have been employed by or otherwise have had a material relationship with us during the three years prior to the date of the prospectus supplement.

 

LEGAL MATTERS

 

Unless otherwise specified in a prospectus supplement, certain legal matters in connection with the securities offered pursuant to this prospectus will be passed upon by Shane M. Spradlin, Esq., our general counsel.  Mr. Spradlin owns shares of our common stock, and holds restricted stock awards and may receive additional awards in the future. Any underwriters will be represented by their own legal counsel.

 

EXPERTS

 

The financial statements of Penske Automotive Group, Inc. and its consolidated subsidiaries (the “Company”), as of December 31, 2016 and 2015 and for each of the years in the three year period ended December 31, 2016, except for:

 

·                   Sytner Group Limited and subsidiaries (“Sytner Group”) as of December 31, 2016 and for the year ended December 31, 2016, and;

·                   UAG UK Holdings Limited and subsidiaries (“UAG UK”) as of December 31, 2015 and for each of the two years in the period ended December 31, 2015,

 

and the related financial statement schedule, incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the year ended December 31, 2016, and the effectiveness of the Company’s internal control over financial reporting as of December 31, 2016, except for Sytner Group as of December 31, 2016, have been audited by Deloitte & Touche LLP as stated in their report which is incorporated herein by reference.

 

The consolidated financial statements and related financial statement schedule of Sytner Group (a consolidated subsidiary of the Company) as of December 31, 2016 and for the year ended December 31, 2016 (which are not included or incorporated by reference in this prospectus), and the effectiveness of Sytner Group’s internal control over financial reporting as of December 31, 2016 have been audited by KPMG LLP as stated in their report which is incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the year ended December 31, 2016.

 

The consolidated financial statements and related financial statement schedule of UAG UK (a consolidated subsidiary of the Company) as of December 31, 2015 and for the year ended December 31, 2015 (which are not included or incorporated by reference in this prospectus), have been audited by KPMG LLP as stated in their report which is incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the year ended December 31, 2016.

 

The consolidated financial statements and related financial statement schedule of UAG UK (a consolidated subsidiary of the Company) for the year ended December 31, 2014 (which are not included or incorporated by reference in this prospectus), have been audited by KPMG Audit Plc as stated in their report which is incorporated by reference in this prospectus from the Company’s Annual Report on Form 10-K for the year ended December 31, 2016.

 

The financial statements of Penske Automotive Group, Inc. and its consolidated subsidiaries as of December 31, 2016 and 2015 and for each of the years in the three year period ended December 31, 2016 and related financial statement schedule are incorporated by reference herein in reliance upon the respective reports of such firms as noted above given upon their authority as experts in accounting and auditing. All of the foregoing firms are independent registered public accounting firms.

 

WHERE YOU CAN FIND MORE INFORMATION

 

We have filed a registration statement on Form S-3 with the SEC under the Securities Act to register the securities offered by means of this prospectus. This prospectus, which is a part of the registration statement, does not contain all of the information identified in the registration statement. For further information about us and the securities offered by means of this prospectus, we refer you to the registration statement and the exhibits filed as a part of the registration statement. Statements contained in this prospectus as to the contents of any contract or other document filed as an exhibit to the registration statement are not necessarily complete. If a contract or document has been filed as an exhibit to the registration statement, we refer you to the copy of the contract or document that has been filed.

 

We are subject to the information and periodic reporting requirements of the Exchange Act. In accordance with those requirements, we file annual, quarterly and current reports, proxy statements and other information with the SEC. You can read and copy any document we file at the SEC’s public reference rooms at the following location:

 

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100 F Street, N.E.

Washington, D.C., 20549

 

You can request copies of these documents upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms and the procedure for obtaining copies.

 

The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. The documents that we file with the SEC, including the registration statement, are available to investors on this web site. You can log onto the SEC’s web site at http://www.sec.gov. Certain information is also available on our corporate website at http://www.penskeautomotive.com/. The information contained on, or accessible through, our corporate web site or any other web site that we may maintain is not part of this prospectus or the registration statement of which this prospectus forms a part.

 

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PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 14.   Other Expenses of Issuance and Distribution

 

The following table sets forth the estimated expenses to be borne by us in connection with the issuance and distribution of the securities registered hereby:

 

SEC registration fee

 

$

*

 

Printing expenses

 

**

 

Legal fees and expenses

 

**

 

Accounting fees and expenses

 

**

 

Trustee fees and expenses

 

**

 

Miscellaneous

 

**

 

Total

 

$

**

 

 


*           The registrant is registering an indeterminate amount of securities under this registration statement and, in accordance with Rules 456(b) and 457(r), the registrant is deferring payment of any additional registration fee until the time that the securities are sold under this registration statement pursuant to a prospectus supplement.

**    Not presently known.

 

Item 15.   Indemnification of Directors and Officers

 

The restated certificate of incorporation of Penske Automotive Group, Inc. (“Penske Automotive Group”) provides that a director of Penske Automotive Group will not be liable to Penske Automotive Group or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that an exemption from liability or limitation of liability is not permitted under the Delaware General Corporation law (“DGCL”). Based on the DGCL as presently in effect, a director of Penske Automotive Group will not be personally liable to Penske Automotive Group or its stockholders for monetary damages for breach of fiduciary duty as a director, except: (1) for any breach of the director’s duty of loyalty to Penske Automotive Group or its stockholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL, which concerns unlawful payments of dividends, stock purchases or redemptions; or (4) for any transactions from which the director derived an improper personal benefit.

 

While these provisions give directors protection from awards for monetary damages for breaches of their duty of care, they do not eliminate the duty. Accordingly, Penske Automotive Group’s certificate of incorporation will have no effect on the availability of equitable remedies such as injunction or rescission based on a director’s breach of his or her duty of care.

 

Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) for payments of unlawful dividends or unlawful stock repurchases, redemptions or other distributions, or (iv) for any transactions from which the director derived an improper personal benefit.

 

The Restated Certificate of Incorporation and the By-laws of Penske Automotive Group provide that Penske Automotive Group will indemnify its directors and officers to the fullest extent permitted by law and that no director shall be liable for monetary damages to Penske Automotive Group or its stockholders for any breach of fiduciary duty, except to the extent provided by applicable law. Penske Automotive Group maintains standard policies of directors’ and officers’ liability insurance.

 

Arizona Registrants:

 

The registrants organized as corporations under Arizona law are subject to the provisions of the Arizona Corporations and Associations Act (“ACAA”). Section 10-851 of the ACAA provides that, subject to certain limitations, a corporation may indemnify a director against liability incurred in the proceeding if all of certain specified conditions exist, or as provided in the corporation’s articles of incorporation. A corporation may not indemnify a director who was adjudged liable on the basis that financial benefit was improperly received by the director. Indemnification is limited to reasonable expenses incurred in connection with the proceeding.

 

Section 10-851 of the ACAA permits an Arizona corporation to eliminate or limit in its articles of incorporation the liability of a director to the corporation or its shareholders for money damages for any action taken or any failure to take any action as a director, except under certain specified circumstances and permits an Arizona corporation to include in its articles of incorporation a provision

 

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permitting or making obligatory indemnification of a director for liability to any person for any action taken, or any failure to take any action, as a director, except for certain exceptions.

 

The articles of incorporation of SA Automotive, Ltd., Scottsdale Management Group, Ltd., and Sigma Motors Inc. provide that no director of the corporation shall be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, subject to certain limitations. In addition, these articles of incorporation provide that each corporation shall indemnify any and all of its existing and former directors, officers, employees, and agents for expenses incurred in any legal action brought or threatened against them for any action or omission alleged to have been committed while acting within the scope of their position at the corporation, subject to certain limitations.

 

The articles of incorporation of Sigma Motors Inc. provide that the corporation shall indemnify any person who incurs expenses or liabilities by reason of the fact he or she is or was an officer, director, employee or agent of the corporation, and is mandatory in all circumstances in which indemnification is permitted by law. The articles of incorporation further provide that, to the fullest extent permitted by Arizona law, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for any action taken or any failure to take any action as a director.

 

Scottsdale Ferrari, LLC is subject to the Arizona Limited Liability Company Act (“ALLCA”). Section 29-610(A)(13) of the ALLCA permits a limited liability company to indemnify a member, manager, employee, officer, agent or any other person.

 

Arkansas Registrants:

 

The registrants organized as corporations under Arkansas law are subject to the provisions of the Arkansas Business Corporation Act (“ABCA”). Under Section 4-27-850 of the ABCA, a corporation has power to indemnify a director, officer, employee, or agent of the corporation against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. If the director, officer, employee, or agent is found to be liable to the corporation, indemnification is not permitted unless the court in which such action or suit was brought determines that the person is fairly and reasonably entitled to indemnity for such expenses which the court deems proper.

 

Section 4-27-202(b)(3) of the ABCA permits an Arkansas corporation to eliminate or limit in its articles of incorporation the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain limitations.

 

The articles of incorporation of Landers Buick-Pontiac, Inc. provide that to the fullest extent permitted by the ABCA, a director of the corporation shall not be liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. The articles of incorporation further provide that the corporation may indemnify any person who was, or is, a party, or is threatened to be made a party, to a proceeding to the fullest extent permitted by the ABCA.

 

The articles of incorporation of Landers Ford North, Inc. provide that to the fullest extent permitted by law, a director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director except under certain circumstances. The articles of incorporation and the bylaws of both registrants provide that the corporation shall indemnify, to the fullest extent permitted by Arkansas law, any person who was or is a party or is threatened to be made a party to a proceeding by reason of the fact that he is or was a director, officer, employee or agent of the corporation, under certain circumstances and subject to certain limitations, and these rights are not exclusive of any other indemnification rights granted by law or in other organizational documents.

 

California Registrants:

 

The registrants organized as corporations under California law are subject to the provisions of the California Corporations Code (“CCC”). Section 317 of the CCC authorizes a court to award, or a corporation’s board of directors to grant, indemnity to any agent of the corporation under certain circumstances and subject to certain limitations.

 

Section 204(a)(10) of the CCC permits a corporation to provide in its articles of incorporation that a director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of such director’s duties, subject to certain limitations.

 

The articles of incorporation of Relentless Pursuit Enterprises, Inc. provide that the liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. The articles of incorporation further

 

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provide that each corporation is authorized to provide indemnification of agents for breach of duty to the corporation and its stockholders through bylaw provisions or through agreements with agents or both, in excess of the indemnification otherwise permitted by the CCC, subject to the limits of the CCC.

 

The bylaws of KMT/UAG, Inc. and Relentless Pursuit Enterprises, Inc. permit each corporation to indemnify any director, officer, agent or employee as to those liabilities and on those terms and conditions that are specified in the CCC.

 

Connecticut Registrant:

 

Connecticut has no statute governing indemnification or limitation of liability for controlling persons, directors, or officers of general partnerships, and Danbury Auto Partnership’s organizational documents do not provide for indemnification or limitation of liability.

 

Delaware Registrants:

 

The registrants organized as corporations under Delaware law are subject to the provisions of the Delaware General Corporation Law. Section 145 of the Delaware General Corporation Law (“DGCL”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors, officers, employees and agents of the corporation under certain circumstances and subject to certain limitations.

 

Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain limitations.

 

The certificates of incorporation of the Delaware corporate registrants generally provide for both limitation of liability and indemnification. The bylaws of the Delaware registrants generally provide for indemnification of directors and officers.

 

Section 18-108 of the Delaware Limited Liability Company Act (“DLLCA”) permits a limited liability company to indemnify any member or manager of the company from and against any and all claims and demands whatsoever.

 

Section 18-1101 of the DLLCA permits a limited liability company to provide in its limited liability company agreement that a member, manager or other person shall not be liable for breach of contract and breach of duties to the limited liability company or to another member or manager or to another person that is a party to or is otherwise bound by the limited liability company agreement, subject to certain limitations.

 

The operating agreements of the Delaware limited liability company registrants provide that a manager shall not be liable to the company or any other person for actions on behalf of the company or in furtherance of the company’s business, subject to certain limitations. The operating agreements further provide that the company shall indemnify any manager, member or other specified persons to the fullest extent provided or allowed by the DLLCA, subject to certain limitations.

 

Florida Registrants:

 

Section 607.0850 of the Florida Business Corporation Act (“FBCA”) authorizes a court to award, or a Florida incorporated registrant’s board of directors to grant, indemnity to officers, directors, employees or other agents of the corporation under certain circumstances and subject to certain limitations. In addition, Section 607.0831 of the FBCA provides that a director shall not be personally liable for monetary damages to the corporation or any other person for any statement, vote, decision or failure to act regarding corporate management or policy by such director, subject to certain limitations.

 

The bylaws of each of the Florida corporate registrants provide that the corporation shall indemnify directors, officers, employees, or agents to the extent and in the manner permitted by the FBCA, and that each corporation has the power to make further indemnification as permitted by the FBCA except to indemnify any person against gross negligence or willful misconduct.

 

Section 620.1303 of the Florida Revised Uniform Limited Partnership Act provides that a limited partner is not personally liable, directly or indirectly, by way of contribution or otherwise, for an obligation of the limited partnership solely by reason of being a limited partner, even if the limited partner participates in the management and control of the limited partnership.

 

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Georgia Registrants:

 

The registrants organized as corporations under Georgia law are subject to the provisions of the Georgia Business Corporation Code (“GBCC”). Section 14-2-851 of the GBCC permits a corporation to indemnify an individual who is a party to a proceeding because he or she is or was a director against liability incurred in the proceeding under certain circumstances. A corporation may not indemnify a director in connection with a proceeding by or in the right of the corporation, except for reasonable expenses if certain requirements are met, or if the director is found liable on the basis that personal benefit was improperly received by him or her, unless such indemnification is permitted by the articles of incorporation or bylaws, pursuant to Section 14-2-856 of the GBCC. Under Section 14-2-852 of the GBCC, a corporation is required to indemnify a director who was wholly successful in the defense of any proceeding to which he or she was a party because he or she was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. Section 14-2-854 permits a court to order indemnification or advance for expenses if it determines that the director is entitled to indemnification under specified circumstances. Section 14-2-857 permits indemnification of officers, if specified requirements are met.

 

In addition, Section 14-2-202(b)(4) of the GBCC provides that the articles of incorporation of a Georgia corporation may include a provision eliminating or limiting the liability of a director to the corporation or its shareholders for monetary damages for any action taken, or any failure to take any action, as a director, except for certain types of liability.

 

The articles of incorporation of United Nissan, Inc. provide that no director of the corporation shall have personal liability to the corporation or to its shareholders for monetary damages for breach of fiduciary duty of care or other duty as a director, subject to certain limitations.

 

The bylaws of Peachtree Nissan, Inc. and United Nissan, Inc. provide that each corporation shall indemnify and hold harmless directors, officers, employees and agents of the corporation in actions by persons other than the corporation and in actions by or in the name of the corporation, under certain circumstances and subject to certain limitations. The bylaws further provide that this indemnification is not exclusive of any other right to which the person indemnified is entitled. In addition, the United Nissan, Inc. bylaws provide that unless the articles of incorporation provide otherwise, a director or officer of the corporation may apply to court for indemnification, which the court may order if specified requirements are met, and that if authorized by the articles of incorporation or resolution approved by the shareholders, the corporation may indemnify or obligate itself to indemnify a director or officer regardless of the other limitations provided in the bylaws, subject to specified requirements.

 

Indiana Registrants:

 

The registrants organized as corporations under Indiana law are subject to the provisions of the Indiana Business Corporation Law (“IBCL”). Section 23-1-37-8 of the IBCL permits an Indiana corporation to indemnify directors against liability incurred in the proceeding if certain requirements are met. Section 23-1-37-9 of the IBCL requires a corporation to indemnify a director who was wholly successful in the defense of any proceeding to which the director was a party because the director is or was a director of the corporation against reasonable expenses incurred by the director in connection with the proceeding. Under IBCL Section 23-1-37-11, unless a corporation’s articles of incorporation provide otherwise, a director may apply for indemnification to the court, which may order indemnification if it determines that the specified requirements are met. Unless the corporation’s articles of incorporation provide otherwise, officers and other employees may also be indemnified under Section 23-1-37-13 of the IBCL, under specified circumstances. Section 23-1-37-15 of the IBCL expressly permits a corporation to include additional indemnification rights in its articles of incorporation or bylaws.

 

The articles of incorporation of Dan Young Chevrolet, Inc. provide that the corporation shall indemnify directors, officers, employees, or agents of the corporation under specified circumstances, except if such person is found to be liable for negligence or misconduct in the performance of a duty to the corporation. The indemnification provided in the articles of incorporation is not exclusive of any rights to which such person may otherwise be entitled. The articles of incorporation of Young Management Group, Inc. provide that directors, officers, employees and agents of the corporation shall be indemnified if specified requirements are met, subject to certain limitations.

 

The registrants organized as limited liability companies under Indiana law are subject to the provisions of the Indiana Business Flexibility Act (“IBFA”). Section 23-18-4-4 of the IBFA provides that a limited liability company’s operating agreement may eliminate or limit the personal liability of a member or manager for monetary damages for breach of certain duties, and provide for indemnification of a member or manager for judgments, settlements, penalties, fines, or expenses incurred in a proceeding to which a person is a party because the person is or was a member or manager.

 

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Nevada Registrant:

 

Section 78.7502 of the General Corporation Law of Nevada (“GCLN”) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to officers and directors of the corporation under certain circumstances and subject to certain limitations. In addition, Section 78.138(7) of the GCLN provides that, unless the articles of incorporation or an amendment thereto filed after October 1, 2003 provide for greater individual liability, a director or officer is not individually liable to the corporation or its stockholders or creditors for any damages as a result of any act or failure to act in such person’s capacity as a director or officer unless it is proven that (i) such person’s act or failure to act constituted a breach of his or her fiduciary duties as a director or officer and (ii) such person’s breach of those duties involved intentional misconduct, fraud or a knowing violation of law.

 

The articles of incorporation of Tamburro Enterprises, Inc. provide that no director or officer shall have personal liability to the corporation or its stockholders for damages for breach of fiduciary duty as a director or officer, subject to certain limitations. The bylaws of Tamburro Enterprises, Inc. provide that the corporation must indemnify, to the maximum extent permitted by the GCLN, directors, officers, employees or agents of the corporation, under specified circumstances. The bylaws further provide that this right does not exclude any other rights to which a person seeking indemnification may be entitled under any article of incorporation, agreement, or otherwise.

 

New Jersey Registrants:

 

The New Jersey Business Corporation Act (“NJBCA”) governs the corporations organized in New Jersey. Section 14A:3-5 of the NJBCA permits a New Jersey corporation to indemnify a corporate agent (which includes directors, officers, employees or agents) against expenses and liabilities in connection with any proceeding involving the corporate agent by reason of his being or having been such a corporate agent, other than a proceeding by or in the right of the corporation, if certain requirements are met. In addition, a corporation may indemnify a corporate agent against expenses in connection with any proceeding by or in the right of the corporation which involves the corporate agent, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation. However, in such proceeding no indemnification may be provided if the corporate agent has been adjudged to be liable to the corporation, except to the extent that the court determines that the corporate agent is fairly and reasonably entitled to indemnity. A New Jersey corporation must indemnify a corporate agent against expenses to the extent the corporate agent has been successful on the merits or otherwise in any proceeding referred to above. Section 14A:3-5(8) of the NJBCA also expressly permits a corporation to include additional indemnification provisions in its organizational documents. Section 14A:2-7(3) of the NJBCA further states that the certificate of incorporation of a New Jersey corporation may provide that a director or officer shall not be personally liable, or shall be liable only to the extent provided, to the corporation or its shareholders for damages for breach of any duty owed to the corporation or its shareholders, except in certain circumstances.

 

The articles of incorporation of Classic Auto Group, Inc., Classic Management Company, Inc., and UAG CHCC, Inc. provide that no director or officer of the corporation shall be personally liable to the corporation or its shareholders for damages for breach of any duty owed to the corporation or its shareholders, except in accordance with the NJBCA.

 

The bylaws of the New Jersey registrants generally provide that each corporation shall indemnify any corporate agent to the fullest extent permitted by the NJBCA, subject to specified limitations. The bylaws of Classic Auto Group, Inc., Classic Turnersville, Inc., UAG CHCC, Inc., and UAG Chevrolet, Inc. also permit the board of directors to similarly indemnify any corporation agent in connection with specified proceedings.

 

The New Jersey Uniform Partnership Act (1996) contains no provisions for indemnification or limitation of liability, and the New Jersey general partnership registrants’ organizational documents do not provide for indemnification or limitation of liability.

 

New York Registrant :

 

Westbury Superstore, Ltd. is subject to the provisions of the New York Business Corporation Law (“NYBCL”). Section 722 of the NYBCL provides that a corporation may indemnify its directors or officers, if certain requirements are met and subject to certain limitations. Section 724 of the NYBCL provides that, notwithstanding the failure of a corporation to provide indemnification, and despite any contrary resolution of the board or shareholders, indemnification shall be awarded by a court to the extent authorized under the NYBCL, upon application of the director or officer, subject to certain limitations. Section 721 provides that the indemnification provisions of the NYBCL are not exclusive of any other rights to which a director or officer seeking indemnification may be entitled, subject to certain limitations.

 

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Oklahoma Registrants:

 

The registrants organized as limited liability companies under Oklahoma law are subject to the provisions of Oklahoma Limited Liability Company Act (“OLLCA”). Section 2017 of the OLLCA provides that a limited liability company may indemnify and hold harmless any member or manager or other person from and against any and all claims and demands as are set forth in the limited liability company agreement. The limited liability company agreements of the Oklahoma registrants do not provide for indemnification or limitation of liability.

 

Ohio Registrants:

 

PAG Mentor A1, Inc. is subject to the provisions of the Ohio General Corporation Law (“OGCL”). Section 1701.13(E) of the OGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to an officer, director, employee or agent of the corporation under certain circumstances and subject to certain limitations. In addition, Section 1701.59(E) provides that, unless otherwise provided in the articles of incorporation or bylaws, a director shall be liable in damages for any action that the director takes or fails to take as a director only if it is proved by clear and convincing evidence in a court of competent jurisdiction that the director’s action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation.

 

The certificate of incorporation of PAG Mentor A1, Inc. provides that the corporation may indemnify or agree to indemnify directors, officers, employees, or agents of the corporation under certain circumstances and subject to certain limitations. The certificate of incorporation provides that a director, officer, employee, or agent who has been successful in a proceeding shall be indemnified, if specified conditions are met. The indemnification provided in the certificate of incorporation is not exclusive of any other rights to which the person seeking indemnification may be entitled. The bylaws of PAG Mentor A1, Inc. further provide that the corporation shall indemnify directors, officers, employees and agents to the fullest extent permitted by law, and that this right is not exclusive of any other rights to which the person seeking indemnification may be entitled.

 

SDG Automotive Investments, LLC is organized as a limited liability company under the laws of Ohio.

 

SDG Automotive Investments, LLC is subject to the provisions of the Ohio Revised Code (“ORC”). Section 1705.32 of the ORC permits a limited liability company to indemnify any person. Furthermore, Section 1705.29(D) of the ORC provides that, unless otherwise provided in the articles of incorporation or operating agreement, a manager of a limited liability company shall be liable for damages for any action that such manager takes or fails to take as a manager only if it is proved by clear and convincing evidence in a court with jurisdiction that his action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the company or undertaken with reckless disregard for the best interests of the company.

 

South Carolina Registrants:

 

The registrants organized as corporations under South Carolina law are subject to the provisions of the South Carolina Code of Laws (“SCCL”). In particular, Article 5 of Chapter 8 of the SCCL authorizes a corporation to indemnify a director against liability incurred in the proceeding if certain conditions are met and, unless the corporation’s articles of incorporation provide otherwise, authorizes a corporation to indemnify an officer, employee, or agent of the corporation who is not a director under specified circumstances. Unless the corporation’s articles of incorporation provide otherwise, a South Carolina corporation must indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which he was a party because he is or was a director of the corporation. However, a South Carolina corporation may not indemnify a director under Article 5 of Chapter 8 of the SCCL (1) in connection with a proceeding by or in the right of the corporation in which the director was adjudged liable to the corporation; or (2) in connection with any other proceeding charging improper personal benefit to him, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him. Unless a corporation’s articles of incorporation provide otherwise, a director may apply for indemnification to a court of competent jurisdiction, which may order indemnification if it determines that the director is entitled to it. In addition, Section 33-2-102(e) of the SCCL permits a South Carolina corporation that meets certain specified criteria to include in its articles of incorporation provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, provided that the provision may not eliminate or limit the liability of a director under certain circumstances.

 

The bylaws of Gene Reed Chevrolet, Inc. provide that the corporation shall indemnify and save harmless all directors, officers, employees or agents of the corporation to the fullest extent permitted by the SCCL. The bylaws of Michael Chevrolet-Oldsmobile, Inc. provide that unless otherwise provided in the articles of incorporation, the corporation shall indemnify its directors under certain specified circumstances, and subject to certain limitations, and may indemnify officers, employees or agents of the corporation, as determined by the board of directors.

 

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Tennessee Registrant:

 

United Nissan, Inc. is subject to the provisions of Title 48 of the Tennessee Code (“TC”). In particular, Section 48-18-502 of the TC authorizes a court to award, or a corporation’s board of directors to grant, indemnity to an officer, director, employee or agent of the corporation under certain circumstances and subject to certain limitations. Section 48-18-503 provides that, unless limited by its charter, a corporation must indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party under specified circumstances. Additionally, Section 48-12-102(b) permits a Tennessee corporation to include in its charter a provision eliminating or limiting the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty as a director, subject to certain limitations.

 

The charter of United Nissan, Inc. provides that no director shall be liable to the corporation or to its shareholders for monetary damages for breach of fiduciary duty, subject to certain limitations. The charter further provides that the directors, officers, employees and agents of the corporation shall be entitled to indemnification in accordance with the TC and in certain specified circumstances, and that these rights do not affect any rights to indemnification to which directors, officers, employees or agents may be entitled by contract or under the TC. The bylaws of United Nissan, Inc. provide that the corporation shall indemnify officers and directors under certain circumstances and subject to certain limitations.

 

Texas Registrants:

 

Section 8.003 of Title 1 of the Texas Business Organizations Code (“TBOC”) provides that the certificate of formation of a corporation may restrict the circumstances under which the corporation must or may indemnify a person. Sections 8.051 and 8.101 of the TBOC provides that a corporation must indemnify a governing person, former governing person, or delegate in connection with a proceeding in which the person is a respondent because the person is or was a governing person or delegate if the person is wholly successful in the defense of the proceeding, and may indemnify such a person under certain other circumstances and subject to certain limitations. Section 8.052 permits a court to order a corporation to indemnify a governing person, former governing person, or delegate to the extent the court determines that the person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. In addition, Section 7.001 of Title 1 of the TBOC allows a Texas corporation in its certificate of formation to provide that a governing person of the organization is not liable, or is liable only to the extent provided by the certificate of formation or similar instrument, to the organization or its owners or members for monetary damages for an act or omission by the person in the person’s capacity as a governing person, except under certain circumstances.

 

The bylaws of Classic Special Advertising, Inc. provide that the corporation shall indemnify its directors and officers to the maximum extent permitted by the TBOC, subject to certain limitations, and that this provision is not exclusive of any other rights to which an officer or director may be entitled under any bylaw, agreement, insurance policy, or otherwise.

 

Sections 8.051 and 8.101 of Title 1 of the TBOC provides that a limited partnership must indemnify a governing person, former governing person, or delegate in connection with a proceeding in which the person is a respondent because the person is or was a governing person or delegate if the person is wholly successful in the defense of the proceeding, and may indemnify such a person under certain other circumstances and subject to certain limitations. Section 8.052 permits a court to order a limited partnership to indemnify a governing person, former governing person, or delegate to the extent the court determines that the person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances. In addition, Section Sec. 8.003. allows the written partnership agreement of a limited partnership to restrict the circumstances under which the limited partnership must or may indemnify or may advance expenses to a person.

 

The partnership agreements or limited liability company agreements of the Texas registrants provide for limitation of liability of the partners to the partnership or members.

 

Item 16.   Exhibits

 

A list of exhibits filed with this registration statement is contained in the index to exhibits, which is incorporated by reference.

 

Item 17.   Undertakings

 

Each of the undersigned co-registrants hereby undertakes:

 

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

 

(i)               To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

 

(ii)            To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation

 

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from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

 

(iii)         To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;

 

provided, however, that paragraphs (i), (ii) and (iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:

 

(i)               Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

 

(ii)            Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.   Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.

 

(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, in a primary offering of securities of the registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i)               Any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii)            Any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant;

 

(iii)         The portion of any other free writing prospectus relating to the offering containing material information about the registrant or its securities provided by or on behalf of the registrant; and

 

(iv)        Any other communication that is an offer in the offering made by the registrant to the purchaser.

 

(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 15 or otherwise, the registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the

 

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successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

 

(8) To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (the TIA”) in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the TIA.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan on the 24th day of February, 2017.

 

 

PENSKE AUTOMOTIVE GROUP, INC.

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Executive Vice President and Chief Financial Officer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on the 24th day of February, 2017.

 

Signature

 

Position

 

Date

 

 

 

 

 

/s/ Roger S. Penske

 

Chairman of the Board and

 

February 24, 2017

Roger S. Penske

 

Chief Executive Officer (Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Executive Vice President and Chief Financial Officer

 

February 24, 2017

J.D. Carlson

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ John D. Barr

 

Director

 

February 24, 2017

John D. Barr

 

 

 

 

 

 

 

 

 

/s/ Michael R. Eisenson

 

Director

 

February 24, 2017

Michael R. Eisenson

 

 

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

 

 

 

 

/s/ William J. Lovejoy

 

Director

 

February 24, 2017

William J. Lovejoy

 

 

 

 

 

 

 

 

 

/s/ Kimberly J. McWaters

 

Director

 

February 24, 2017

Kimberly J. McWaters

 

 

 

 

 

 

 

 

 

/s/ Lucio A. Noto

 

Director

 

February 24, 2017

Lucio A. Noto

 

 

 

 

 

 

 

 

 

/s/ Greg Penske

 

Director

 

February 24, 2017

Greg Penske

 

 

 

 

 

 

 

 

 

/s/ Sandra E. Pierce

 

Director

 

February 24, 2017

Sandra E. Pierce

 

 

 

 

 

 

 

 

 

/s/ Kanji Sasaki

 

Director

 

February 24, 2017

Kanji Sasaki

 

 

 

 

 

 

 

 

 

/s/ Ronald G. Steinhart

 

Director

 

February 24, 2017

Ronald G. Steinhart

 

 

 

 

 

 

 

 

 

/s/ H. Brian Thompson

 

Director

 

February 24, 2017

H. Brian Thompson

 

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

Classic Auto Group, Inc.

 

Somerset Motors, Inc.

Classic Enterprises, LLC

 

UAG Central NJ, LLC

Classic Imports, Inc.

 

UAG Chantilly AU, LLC

Classic Management Company, Inc.

 

UAG Hudson CJD, LLC

Classic Motor Sales, LLC

 

UAG Classic, Inc.

Classic Nissan of Turnersville, LLC

 

UAG Connecticut, LLC

Classic Turnersville, Inc.

 

UAG Hudson, Inc.

Cycle Holdings, LLC

 

UAG Nanuet II, LLC

DiFeo Partnership LLC

 

UAG Northeast, LLC

HBL, LLC

 

UAG Turnersville Realty, LLC

PAG Annapolis JL1, LLC

 

UAG West Bay AM, LLC

PAG Chantilly M1, LLC

 

UAG West Bay FM, LLC

PAG Connecticut LR1, LLC

 

UAG West Bay IA, LLC

PAG East, LLC

 

UAG West Bay IAU, LLC

PAG Edison B1, LLC

 

UAG West Bay IB, LLC

PAG Greenwich B1, LLC

 

UAG West Bay II, LLC

PAG Greenwich Holdings, LLC

 

UAG West Bay IL, LLC

PAG New Jersey A1, LLC

 

UAG West Bay IM, LLC

PAG New Jersey JL1, LLC

 

UAG West Bay IN, LLC

PAG New Jersey JL2, LLC

 

UAG West Bay IP, LLC

PAG New Jersey JL3, LLC

 

UAG West Bay IW, LLC

PAG New Jersey P1, LLC

 

 

PAG Turnersville AU, LLC

 

 

PAG Washington A1, LLC

 

 

 

 

 

By:

/s/ John Cragg

 

 

John Cragg

 

 

Chairman of the Board

 

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KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John Cragg

 

Chairman of the Board

 

February 24, 2017

John Cragg

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG Atlanta Management, LLC

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

Title

Date

 

 

 

 

 

/s/ R. Whitfield Ramonat

President

February 24, 2017

R. Whitfield Ramonat

(Principal Executive Officer)

 

 

 

 

 

/s/ J. D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

 Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

Director

February 24, 2017

Robert H. Kurnick, Jr.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

County Auto Group Partnership

 

Danbury Auto Partnership

 

DiFeo Chrysler Plymouth Jeep Eagle Partnership

 

DiFeo Hyundai Partnership

 

DiFeo Leasing Partnership

 

DiFeo Nissan Partnership

 

DiFeo Tenafly Partnership

 

OCT Partnership

 

 

 

By: DiFeo Partnership, LLC

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John Cragg

 

Chairman of the Board

 

February 24, 2017

John Cragg

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Hudson Motors Partnership

 

 

 

By: DiFeo Partnership, LLC

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John Cragg

 

Chairman of the Board

 

February 24, 2017

John Cragg

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Somerset Motors Partnership

 

 

 

By: DiFeo Partnership, LLC

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John Cragg

 

Chairman of the Board

 

February 24, 2017

John Cragg

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

UAG East, LLC

 

United Auto Finance, Inc.

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John Cragg

 

Chairman of the Board

 

February 24, 2017

John Cragg

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 17



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Late Acquisition I, LLC

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Walter P. Czarnecki, Jr.

 

President

 

February 24, 2017

Walter P. Czarnecki, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 18



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG International Services, LLC

 

UAG International Holdings, Inc.

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Roger S. Penske

 

Chairman of the Board

 

February 24, 2017

Roger S. Penske

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

President and Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 19



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

UAG Realty, LLC

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Treasurer

 

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Roger S. Penske

 

Chairman of the Board

 

February 24, 2017

Roger S. Penske

 

(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

President and Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 20



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

CJNS, LLC

PAG West Acquisition 9, Inc.

Classic Special Advertising, Inc.

Peter Pan Motors, Inc.

Classic Special Automotive GP, LLC

PMRC, LLC

Classic Special, LLC

Relentless Pursuit Enterprises, Inc.

Europa Auto Imports, Inc.

SA Automotive, Ltd.

GMG Motors, Inc.

SAU Automotive, Ltd.

Goodson North, LLC

Scottsdale 101 Management, LLC

Goodson Spring Branch, LLC

Scottsdale Ferrari, LLC

HT Automotive, LLC

Scottsdale Management Group, Ltd.

KMT/UAG, Inc.

Scottsdale Paint & Body, LLC

Late Acquisition II, LLC

Sigma Motors, Inc.

PAG Austin H1, LLC

SK Motors, LLC

PAG AZ Properties, LLC

SL Automotive, LLC

PAG Chandler JLR, LLC

Sun Motors, LLC

PAG Clovis T1, Inc.

Tamburro Enterprises, Inc.

PAG Marin M1, Inc.

UAG Capitol, Inc.

PAG McAllen H1, LLC

UAG Clovis, Inc.

PAG McAllen T1, LLC

UAG Escondido A1, Inc.

PAG North Scottsdale BE, LLC

UAG Escondido H1, Inc.

PAG North Scottsdale M1, LLC

UAG Escondido M1, Inc.

PAG Northern California Management, Inc.

UAG Los Gatos, Inc.

PAG Ontario B1, Inc.

UAG Marin, Inc.

PAG Orange County L1, Inc.

UAG San Diego A1, Inc.

PAG Orange County Management Company, Inc.

UAG San Diego AU, Inc.

PAG Orange County RR1, Inc.

UAG San Diego H1, Inc.

PAG Orange County S1, Inc.

UAG San Diego Management, Inc.

PAG San Francisco N1, Inc.

UAG Stevens Creek II, Inc.

PAG Santa Ana AVW, Inc.

UAG Texas II, Inc.

PAG Santa Ana B1, Inc.

UAG Texas, LLC

PAG Surprise T1, LLC

UAG VK, LLC

PAG Tempe M1, LLC

United Ranch Automotive, LLC

PAG West Acquisition 8, Inc.

 

 

 

 

By:

/s/ Bernard W. Wolfe

 

 

Bernard W. Wolfe,

 

 

Chairman of the Board

 

II- 21



Table of Contents

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Bernard W. Wolfe

 

Chairman of the Board

 

February 24, 2017

Bernard W. Wolfe

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 22



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG Texas Management Company, LLC

 

PAG West, LLC

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Bernard W. Wolfe

 

President

 

February 24, 2017

Bernard W. Wolfe

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 23



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

Automotive Media Holdings, LLC

UAG CHCC, Inc.

Central Ford Center, Inc.

UAG Chevrolet, Inc.

Covington Pike Dodge, Inc.

UAG Citrus Motors, LLC

Florida Chrysler Plymouth, Inc.

UAG Graceland II, Inc.

Gene Reed Chevrolet, Inc.

UAG Memphis IV, Inc.

Landers Buick-Pontiac, Inc.

UAG Michigan Cadillac, LLC

Landers Ford North, Inc.

UAG Michigan H1, LLC

Michael Chevrolet-Oldsmobile, Inc.

UAG Michigan Pontiac-GMC, LLC

Motorcars Acquisition III, LLC

UAG Michigan T1, LLC

Motorcars Acquisition VI, LLC

UAG Michigan TMV, LLC

National City Ford, Inc.

UAG West Bay IV, LLC

PAG Acquisition 27, LLC

UnitedAuto Dodge of Shreveport, Inc.

PAG Acquisition 28, LLC

United Nissan, Inc. (GA)

PAG Distributor S1, LLC

United Nissan, Inc. (TN)

PAG Goodyear F1, LLC

West Palm Auto Mall, Inc.

PAG West Bay MIT, LLC

Westbury Superstore, Ltd.

Peachtree Nissan, Inc.

Young Management Group, Inc.

UAG Carolina, Inc.

 

 

 

 

By:

/s/ Robert H. Kurnick, Jr.

 

 

Robert H. Kurnick, Jr.,

 

 

Chairman of the Board and President

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Chairman of the Board, President and Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

II- 24



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG Acquisition 53, LLC

 

PAG Acquisition 54, LLC

 

PAG Acquisition 55, LLC

 

 

 

By:

/s/ Robert H. Kurnick, Jr.

 

 

Robert H. Kurnick, Jr.,

 

 

Chairman of the Board and President

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Chairman of the Board, President and Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

II- 25



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

United Auto Scottsdale Property Holdings, LLC

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Bernard W. Wolfe

 

Chairman of the Board

 

February 24, 2017

Bernard W. Wolfe

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 26



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

UAG Houston Acquisition, Ltd.

 

 

 

 

By: UAG Texas, LLC

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Bernard W. Wolfe

 

Chairman of the Board

 

February 24, 2017

Bernard W. Wolfe

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 27



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

WTA Motors, Ltd.

 

 

 

 

By: Late Acquisition II, LLC

 

Its: General Partner

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Bernard W. Wolfe

 

Chairman of the Board

 

February 24, 2017

Bernard W. Wolfe

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 28



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

United Auto Licensing, LLC

 

 

 

 

 

 

 

By:

/s/ Robert H. Kurnick, Jr.

 

 

Robert H. Kurnick, Jr.,

 

 

President

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

President, Treasurer and Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

(Principal Executive Officer, Principal Accounting

 

 

 

 

Officer and Principal Financial Officer)

 

 

 

II- 29



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

Auto Mall Payroll Services, Inc.

 

PAG Roswell B1, LLC

Brett Morgan Chevrolet-Geo, Inc.

 

Palm Auto Plaza, LLC

D. Young Chevrolet, LLC

 

SDG Automotive Investments, LLC

Dan Young Chevrolet, Inc.

 

UAG Arkansas FLM, LLC

Dan Young Motors, LLC

 

UAG Atlanta H1, LLC

Dealer Accessories, LLC

 

UAG Atlanta IV Motors, Inc.

FRN of Tulsa, LLC

 

UAG Central Region Management, LLC

Landers Auto Sales, LLC

 

UAG Duluth, Inc.

Motorcars Acquisition IV, LLC

 

UAG Fayetteville I, LLC

Motorcars Acquisition V, LLC

 

UAG Fayetteville II, LLC

Motorcars Acquisition, LLC

 

UAG Fayetteville III, LLC

PAG Arkansas F1, LLC

 

UAG Kissimmee Motors, LLC

PAG Arkansas F2, LLC

 

UAG Landers Springdale, LLC

PAG Bedford A1, LLC

 

UAG Memphis II, Inc.

PAG Bedford P1, LLC

 

UAG Memphis Management, Inc.

PAG Bedford Properties, LLC

 

UAG Mentor Acquisition, LLC

PAG Davie P1, LLC

 

UAG Minneapolis B1, LLC

PAG Madison L1, LLC

 

UAG Royal Palm M1, LLC

PAG Madison T1, LLC

 

UAG Royal Palm, LLC

PAG Mentor A1, LLC

 

UAG Tulsa Holdings, LLC

PAG Michigan Holdings, LLC

 

UAG Young II, Inc.

PAG Orlando General, LLC

 

UAG-Caribbean, Inc.

PAG Orlando Limited, LLC

 

West Palm Nissan, LLC

 

 

By:

/s/ R. Whitfield Ramonat

 

 

R. Whitfield Ramonat
Chairman of the Board

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ R. Whitfield Ramonat

 

Chairman of the Board

 

February 24, 2017

R. Whitfield Ramonat

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 30



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

United AutoCare Products, LLC

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ R. Whitfield Ramonat

 

Chairman of the Board

 

February 24, 2017

R. Whitfield Ramonat

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 31



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG Investments, LLC

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Chairman of the Board

 

February 24, 2017

Robert H. Kurnick, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Treasurer and Director

 

February 24, 2017

 

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

II- 32



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Atlantic Auto Funding Corporation

 

Atlantic Auto Second Funding Corporation

 

Atlantic Auto Third Funding Corporation

 

UAG Finance Company, Inc.

 

United Auto Fifth Funding, Inc.

 

United Auto Fourth Funding, Inc.

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

President and Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ J.D. Carlson

 

President, Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Executive Officer, Principal

 

 

 

 

Accounting Officer and Principal

 

 

 

 

Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 33



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Penske Car Rental (DT) Memphis, LLC

 

Penske Car Rental Holdings, LLC

 

Penske Car Rental Indiana, LLC

 

Penske Car Rental Memphis, LLC

 

 

 

 

 

 

 

By:

/s/ Claude H. Denker

 

 

Claude H. Denker,

 

 

President

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Claude H. Denker

 

President

 

February 24, 2017

Claude H. Denker

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 34



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Classic Oldsmobile Pontiac-GMC Truck, Ltd.

 

Classic Special Automotive, Ltd.

 

Classic Special Hyundai, Ltd.

 

Hill Country Imports, Ltd.

 

 

 

By: Tamburro Enterprises, Inc.

 

Its: General Partner

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Bernard W. Wolfe

 

Chairman of the Board

 

February 24, 2017

Bernard W. Wolfe

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 35



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG Orlando Partnership, Ltd.

 

 

 

By: PAG Orlando General, LLC

 

Its: General Partner

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ R. Whitfield Ramonat

 

Chairman of the Board

 

February 24, 2017

R. Whitfield Ramonat

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 36



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG Cycles MI, LLC

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ John Erickson

 

President

 

February 24, 2017

John Erickson

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

February 24, 2017

J.D. Carlson

 

(Principal Accounting Officer and

 

 

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

February 24, 2017

Robert H. Kurnick, Jr.

 

 

 

 

 

II- 37



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Penske Commercial Vehicles US, LLC

 

 

 

 

By:

PAG Investments, LLC

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Richard Shearing

 

President, Chief Executive Officer and Manager

 

 

Richard Shearing

 

(Principal Executive Officer)

 

February 24, 2017

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Manager

 

 

J.D. Carlson

 

(Principal Accounting Officer and

 

February 24, 2017

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Assistant Secretary and Manager

 

February 24, 2017

Robert H. Kurnick, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ George Brochick

 

 

 

 

George Brochick

 

Manager

 

February 24, 2017

 

 

 

 

 

/s/ Chinta Hari

 

 

 

 

Chinta Hari

 

Manager

 

February 24, 2017

 

II- 38



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

ATC Chattanooga, LLC

 

ATC Knoxville, LLC

 

ATC Realty Investments, LLC

 

ATC West Texas, LLC

 

Single Source Truck Parts, LLC

 

The Around the Clock Freightliner Group, LLC

 

 

 

 

 

 

 

By:

Penske Commercial Vehicles US, LLC

 

 

 

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

Title

Date

 

 

 

 

 

/s/ Richard Shearing

 

President, Chief Executive Officer and Manager

 

 

Richard Shearing

 

(Principal Executive Officer)

 

February 24, 2017

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Manager

 

 

J.D. Carlson

 

(Principal Accounting Officer and

 

February 24, 2017

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

Assistant Secretary and Manager

February 24, 2017

Robert H. Kurnick, Jr.

(Principal Executive Officer)

 

 

 

 

 

/s/ George Brochick

 

 

 

George Brochick

 

Manager

 

February 24, 2017

/s/ Chinta Hari

Chinta Hari

Manager

 

February 24, 2017

 

II- 39



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

Bowen Realty Investments, LLC

 

 

 

 

By:

ATC Realty Investments, LLC

 

 

 

 

By:

/s/ J.D. Carlson

 

 

J.D. Carlson

 

 

Assistant Treasurer

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Richard Shearing

 

President, Chief Executive Officer and Manager

 

 

Richard Shearing

 

(Principal Executive Officer)

 

February 24, 2017

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Manager

 

 

J.D. Carlson

 

(Principal Accounting Officer and

 

February 24, 2017

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Assistant Secretary and Manager

 

February 24, 2017

Robert H. Kurnick, Jr.

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ George Brochick

 

 

 

 

George Brochick

 

Manager

 

February 24, 2017

 

 

 

 

 

/s/ Chinta Hari

 

 

 

 

Chinta Hari

 

Manager

 

February 24, 2017

 

II- 40



Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, each of the Registrant’s has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Bloomfield Hills, State of Michigan, on February 24, 2017.

 

 

PAG New Jersey CS, LLC

 

PAG Pennsylvania CS, LLC

 

 

 

 

 

 

 

By:

/s/ R. Whitfield Ramonat

 

 

R. Whitfield Ramonat

 

 

Chairman and President

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert H. Kurnick, Jr. and Shane M. Spradlin, and each of them acting individually, as his attorney-in-fact, each with full power of substitution, for him in any and all capacities, to sign any and all amendments to this registration statement on Form S-3 (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or any substitute, may do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ R. Whitfield Ramonat

 

Chairman and President

 

 

R. Whitfield Ramonat

 

(Principal Executive Officer)

 

February 24, 2017

 

 

 

 

 

/s/ J.D. Carlson

 

Assistant Treasurer and Director

 

 

J.D. Carlson

 

(Principal Accounting Officer and

 

February 24, 2017

 

 

Principal Financial Officer)

 

 

 

 

 

 

 

/s/ Robert H. Kurnick, Jr.

 

Director

 

 

Robert H. Kurnick, Jr.

 

 

 

February 24, 2017

 

II- 41



Table of Contents

 

INDEX TO EXHIBITS

 

Exhibit
Number

 

Description

*1.1

 

Form(s) of Underwriting Agreement.

4.1

 

Certificate of Incorporation (incorporated by reference to Exhibit 3.2 to the Company’s Form 8-K filed on July 2, 2007).

4.2

 

By-laws (incorporated by reference to exhibit 3.1 to the Company’s Form 8-K filed on October 23, 2013).

4.3

 

Form of Senior Indenture.

4.4

 

Subordinated Indenture dated as of November 21, 2014 between the Company and The Bank of New York Mellon Trust Company, N.A., as Trustee (incorporated herein by reference to Exhibit 4.1 to the Company’s Form 8-K filed on November 21, 2014).

4.5

 

Specimen Common Stock Certificate (incorporated herein by reference to Exhibit 4.5 to the Company’s Registration Statement on Form S-1 filed on January 21, 2010, Registration No. 333-164453).

*4.6

 

Form of Debt Warrant Agreement, including forms of Debt Warrant Certificates.

*4.7

 

Form of Common Stock Warrant Agreement, including Warrant Certificate of Common Stock.

*4.8

 

Form of Preferred Stock Warrant Agreement, including Warrant Certificate for Preferred Stock.

*4.9

 

Certificate of Designation of Preferred Stock.

5   

 

Opinion of Shane M. Spradlin, General Counsel of the Company, as to the legality of the securities being registered.

12   

 

Computation of ratio of earnings to fixed charges (incorporated herein by reference to Exhibit 12 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016).

23.1

 

Consent of Deloitte & Touche LLP.

23.2

 

Consent of KPMG LLP.

23.3

 

Consent of KPMG LLP.

23.4

 

Consent of KPMG Audit Plc.

23.5

 

Consent of Shane M. Spradlin, General Counsel of the Company (contained in Exhibit 5).

24   

 

Powers of attorney (included on signature pages).

25.1

 

Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Trustee for Senior Indenture.

25.2

 

Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of Trustee for Subordinated Indenture.

 


* To be filed by amendment or incorporated by reference in connection with the offering of any securities, as appropriate.

 

II- 42


Exhibit 4.3

 

 

PENSKE AUTOMOTIVE GROUP, INC.

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., TRUSTEE

 

INDENTURE

 

Dated as of                    , 2017

Senior Debt Securities

 

 



 

TABLE OF CONTENTS

 

 

 

 

 

Page

 

 

 

 

 

ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

1

 

 

 

Section 1.1

 

Definitions

 

1

Section 1.2

 

Compliance Certificates and Opinions

 

5

Section 1.3

 

Form of Documents Delivered to Trustee

 

6

Section 1.4

 

Acts of Holders

 

6

Section 1.5

 

Notices, Etc., to Trustee and Company

 

7

Section 1.6

 

Notice to Holders of Securities; Waiver

 

8

Section 1.7

 

Language of Notices, Etc.

 

8

Section 1.8

 

Conflict with Trust Indenture Act

 

8

Section 1.9

 

Effect of Headings and Table of Contents

 

8

Section 1.10

 

Successors and Assigns

 

8

Section 1.11

 

Separability Clause

 

8

Section 1.12

 

Benefits of Indenture

 

8

Section 1.13

 

Governing Law

 

8

Section 1.14

 

Legal Holidays

 

9

Section 1.15

 

Waiver of Jury Trial; Submission of Jurisdiction

 

9

Section 1.16

 

Force Majeure

 

9

Section 1.17

 

FACTA

 

9

 

 

 

 

 

ARTICLE 2 SECURITY FORMS

 

10

 

 

 

Section 2.1

 

Forms Generally

 

10

Section 2.2

 

Form of Trustee’s Certificate of Authentication

 

10

Section 2.3

 

Securities in Global Form

 

11

 

 

 

 

 

ARTICLE 3 THE SECURITIES

 

11

 

 

 

Section 3.1

 

Amount Unlimited; Issuable in Series

 

11

Section 3.2

 

Denominations

 

13

Section 3.3

 

Execution, Authentication, Delivery and Dating

 

13

Section 3.4

 

Temporary Securities

 

14

Section 3.5

 

Registration, Transfer and Exchange

 

14

Section 3.6

 

Mutilated, Destroyed, Lost and Stolen Securities

 

16

Section 3.7

 

Payment of Interest; Interest Rights Preserved

 

17

Section 3.8

 

Persons Deemed Owners

 

18

Section 3.9

 

Cancellation

 

18

Section 3.10

 

Computation of Interest

 

18

Section 3.11

 

CUSIP Numbers

 

18

 

 

 

 

 

ARTICLE 4 SATISFACTION AND DISCHARGE

 

19

 

 

 

Section 4.1

 

Satisfaction and Discharge of Indenture

 

19

Section 4.2

 

Application of Trust Money

 

20

 

 

 

 

 

ARTICLE 5 REMEDIES

 

20

 

 

 

Section 5.1

 

Events of Default

 

20

Section 5.2

 

Acceleration of Maturity; Rescission and Annulment

 

21

Section 5.3

 

Collection of Indebtedness and Suits for Enforcement by Trustee

 

22

 

i



 

Section 5.4

 

Trustee May File Proofs of Claim

 

22

Section 5.5

 

Trustee May Enforce Claims Without Possession of Securities

 

23

Section 5.6

 

Application of Money Collected

 

23

Section 5.7

 

Limitation on Suits

 

23

Section 5.8

 

Unconditional Right of Holders to Receive Principal, Premium and Interest

 

24

Section 5.9

 

Restoration of Rights and Remedies

 

24

Section 5.10

 

Rights and Remedies Cumulative

 

24

Section 5.11

 

Delay or Omission Not Waiver

 

24

Section 5.12

 

Control by Holders of Securities

 

24

Section 5.13

 

Waiver of Past Defaults

 

25

Section 5.14

 

Undertaking for Costs

 

25

 

 

 

 

 

ARTICLE 6 THE TRUSTEE

 

25

 

 

 

Section 6.1

 

Certain Duties and Responsibilities

 

25

Section 6.2

 

Notice of Defaults

 

26

Section 6.3

 

Certain Rights of Trustee

 

26

Section 6.4

 

Not Responsible for Recitals or Issuance of Securities

 

28

Section 6.5

 

May Hold Securities

 

28

Section 6.6

 

Money Held in Trust

 

28

Section 6.7

 

Compensation and Reimbursement

 

28

Section 6.8

 

Disqualifications; Conflicting Interests

 

29

Section 6.9

 

Corporate Trustee Required; Eligibility

 

29

Section 6.10

 

Resignation and Removal; Appointment of Successor

 

29

Section 6.11

 

Acceptance of Appointment by Successor

 

30

Section 6.12

 

Merger, Conversion, Consolidation or Succession to Business

 

31

Section 6.13

 

Preferential Collection of Claims Against Company

 

31

Section 6.14

 

Appointment of Authenticating Agent

 

31

 

 

 

 

 

ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

33

 

 

 

Section 7.1

 

Company To Furnish Trustee Names and Addresses of Holders

 

33

Section 7.2

 

Preservation of Information; Communications to Holders

 

33

Section 7.3

 

Reports by Trustee

 

34

Section 7.4

 

Reports by the Company

 

34

 

 

 

 

 

ARTICLE 8 CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE

 

34

 

 

 

Section 8.1

 

Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions

 

35

Section 8.2

 

Rights and Duties of Successor Corporation

 

35

Section 8.3

 

Officers’ Certificate and Opinion of Counsel

 

35

 

 

 

 

 

ARTICLE 9 SUPPLEMENTAL INDENTURE

 

35

 

 

 

Section 9.1

 

Supplemental Indentures without Consent of Holders

 

35

Section 9.2

 

Supplemental Indentures with Consent of Holders

 

36

Section 9.3

 

Execution of Supplemental Indentures

 

37

Section 9.4

 

Effect of Supplemental Indentures

 

37

Section 9.5

 

Conformity with Trust Indenture Act

 

37

Section 9.6

 

Reference in Securities to Supplemental Indentures

 

37

 

 

 

 

 

ARTICLE 10 COVENANTS

 

38

 

 

 

Section 10.1

 

Payment of Principal, Premium, if any, and Interest

 

38

 

ii



 

Section 10.2

 

Maintenance of Office or Agency

 

38

Section 10.3

 

Money for Securities Payments To Be Held in Trust

 

38

Section 10.4

 

Additional Amounts

 

39

Section 10.5

 

Statement as to Compliance; Notice of Certain Defaults

 

40

 

 

 

 

 

ARTICLE 11 REDEMPTION OF SECURITIES

 

40

 

 

 

Section 11.1

 

Applicability of Article

 

40

Section 11.2

 

Election to Redeem; Notice to Trustee

 

40

Section 11.3

 

Selection by Trustee of Securities To Be Redeemed

 

40

Section 11.4

 

Notice of Redemption

 

41

Section 11.5

 

Deposit of Redemption Price

 

42

Section 11.6

 

Securities Payable on Redemption Date

 

42

Section 11.7

 

Securities Redeemed in Part

 

42

 

 

 

 

 

ARTICLE 12 SINKING FUNDS

 

42

 

 

 

Section 12.1

 

Applicability of Article

 

42

Section 12.2

 

Satisfaction of Sinking Fund Payments with Securities

 

43

Section 12.3

 

Redemption of Securities for Sinking Fund

 

43

Section 12.4

 

Counterparts

 

43

 

iii



 

CONTENTS

 

Clause

 

Subject Matter

 

Page

 

 

 

 

 

 

Reconciliation and tie between

Trust Indenture Act of 1939

and Indenture

 

Trust Indenture Act Section

 

Indenture Section

§ 310 (a)(1)

 

6.9

(a)(2)

 

6.9

(a)(3)

 

Not Applicable

(a)(4)

 

Not Applicable

(b)

 

6.8, 6.10

§ 311 (a)

 

6.13(a), (c)

(b)

 

6.13(b), (c)

(b)(2)

 

7.3(a)(ii), 7.3(b)

§ 312 (a)

 

7.1, 7.2(a)

(b)

 

7.2(b)

(c)

 

7.2(c)

§ 313 (a)

 

7.3(a)

(b)(1)

 

Not Applicable

(b)(2)

 

7.3(b)

(c)

 

7.3(c)

(d)

 

7.3(d)

§ 314 (a)

 

7.4

(b)

 

Not Applicable

(c)(1)

 

1.2

(c)(2)

 

1.2

(c)(3)

 

Not Applicable

(d)

 

Not Applicable

(e)

 

1.2

§ 315 (a)

 

6.1(a)

(b)

 

6.2, 7.3(a)(6)

(c)

 

6.1(b)

(d)

 

6.1(c)

(d)(1)

 

6.1(a)(i), (c)(i)

(d)(2)

 

6.1(c)(ii)

(d)(3)

 

6.1(c)(iii)

(e)

 

5.14

§ 316 (a)

 

1.1

(a)(1)(A)

 

5.2, 5.12

(a)(1)(B)

 

5.13

(a)(2)

 

Not Applicable

(b)

 

5.8

§ 317 (a)(1)

 

5.3

(a)(2)

 

5.4

(b)

 

10.3

§ 318 (a)

 

1.8

 

Note:  This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.

 

iv



 

INDENTURE, dated as of        , 2017 between Penske Automotive Group, Inc., a Delaware corporation (hereinafter called the “Company”), having its principal office at 2555 Telegraph Road, Bloomfield Hills, Michigan 48302, and The Bank of New York Mellon Trust Company, N.A., a national banking association (hereinafter called the “Trustee”).

 

Recitals of The Company

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness, unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided.

 

The Company has duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

ARTICLE 1

 

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 1.1                                     Definitions.

 

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)                                  the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;

 

(b)                                  all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;

 

(c)                                   all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles and, except as otherwise herein expressly provided, the terms “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation; and

 

(d)                                  the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.

 

Certain terms, used principally in Article Six, are defined in that Article.

 

Act ” when used with respect to any Holders has the meaning specified in Section 1.4.

 

Additional Amounts ” means any additional amounts which are required by a Security or by or pursuant to a Board Resolution, under circumstances specified therein, to be paid by the Company in respect of certain taxes imposed on certain Holders and which are owing to such Holders.

 

Affiliate ” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of

 



 

such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have the meanings correlative to the foregoing.

 

Applicable Law ” has the meaning specified in Section 1.17.

 

Authenticating Agent ” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.

 

Authorized Newspaper ” means a newspaper, in an official language of the country of publication or in the English language, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.

 

Board of Directors ” means the Board of Directors of the Company or any duly authorized committee thereof.

 

Board Resolution ” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.

 

Business Day ,” except as may otherwise be provided in the form of Securities of any particular series pursuant to the provisions of this Indenture, with respect to any Place of Payment means each Monday, Tuesday, Wednesday, Thursday and Friday which is neither a legal holiday nor a day on which banking institutions or trust companies in that Place of Payment are authorized or obligated by law to close.

 

Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.

 

Company ” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.

 

Company Request ” and “Company Order” mean, respectively, a written request or order signed in the name of the Company by the Chairman, the President, any Vice President or the Treasurer, and by the Secretary, an Assistant Treasurer or an Assistant Secretary of the Company, and delivered to the Trustee.

 

Corporate Trust Office ” means the principal office or agency of the Trustee, at which at any particular time its corporate trust business relating to this Indenture shall be administered, which office at the date of original execution of this Indenture is located at 2 N. LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Institutional Trust Services, or such other address as the Trustee may designate from time to time by notice to the Holders and the Company, or the principal corporate trust office of any successor Trustee.

 

corporation ” includes corporations, associations, partnerships, limited liability companies and business trusts.

 

Defaulted Interest ” has the meaning specified in Section 3.7.

 

Depositary ” means with respect to the Securities of any series issuable or issued in whole or in part in global form, the Person designated as Depositary by the Company pursuant to Section 3.1(c) until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more

 

2



 

than one such Person, “Depositary” as used with respect to the Securities of any such series shall mean the “Depositary” with respect to the Securities of that series.

 

Dollars ” or “ $ ” or any similar reference shall mean currency of the United States which at the time shall be legal tender for the payment of public and private debts.

 

Event of Default ” has the meaning specified in Section 5.1.

 

Holder ” when used with respect to any Security means the Person in whose name the Security is registered in the Security Register.

 

Indenture ” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof.

 

Interest ” when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity means interest payable after Maturity, and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section 10.4, includes such Additional Amounts.

 

Interest Payment Date ” means the Stated Maturity of an installment of interest on the applicable Securities.

 

Maturity ” when used with respect to any Security means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or otherwise.

 

Officers’ Certificate ” means a certificate signed by the Chairman of the Board, the President, any Vice President or the Treasurer, and by the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 1.2.

 

Opinion of Counsel ” means a written opinion of counsel acceptable to the Trustee, who may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for the Company, or other counsel. Each such opinion shall include the statements provided for in Section 1.2.

 

Original Issue Discount Security ” means a Security issued pursuant to this Indenture which provides for declaration of an amount less than the principal thereof to be due and payable upon acceleration pursuant to Section 5.2.

 

Outstanding ” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i)                                      Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

 

(ii)                                   Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and

 

(iii)                                Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company:

 

provided , however , that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the

 

3



 

principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared to be due and payable pursuant to the terms of such Original Issue Discount Security at the time the taking of such action by the Holders of such requisite principal amount is evidenced to the Trustee as provided in Section 1.4(a), and , provided further , that Securities owned beneficially by the Company or any other obligor upon the Securities or any Affiliate (other than officers or directors of the Company) of the Company or such other obligor, shall be disregarded and deemed not to be outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor. In the case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all securities known by the Company to be owned or held by or for the account of any of the above-described persons; and, subject to the terms of this Indenture, the Trustee shall be entitled to accept such Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not listed therein are outstanding for the purpose of any such determination.

 

Paying Agent ” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company.

 

Person ” means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

Place of Payment ” when used with respect to the Securities of any series means the place or places where, subject to the provisions of Section 10.2, the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as provided pursuant to Section 3.1.

 

Predecessor Security ” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the same debt as the lost, destroyed, mutilated or stolen Security.

 

Redemption Date ” when used with respect to any Security to be redeemed means the date fixed for such redemption by or pursuant to this Indenture.

 

Redemption Price ” when used with respect to any Security to be redeemed means the price at which it is to be redeemed as determined pursuant to the provisions of this Indenture.

 

Registered Security ” means any Security established pursuant to Section 2.1 which is registered in the Security Register.

 

Regular Record Date ” for the interest payable on a Security on any Interest Payment Date means the date, if any, specified in such Security as the “Regular Record Date.”

 

Responsible Officer ” when used with respect to the Trustee means any officer within the corporate trust department of the Trustee, including any vice president, assistant secretary, senior associate, associate, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

 

4



 

Security ” or “ Securities ” means any Security or Securities, as the case may be, authenticated and delivered under this Indenture.

 

Security Register ” and “ Security Registrar ” have the respective meanings specified in Section 3.5.

 

Special Record Date ” for the payment of any Defaulted Interest on the Securities of any series means a dated fixed by the Trustee pursuant to Section 3.7.

 

Stated Maturity ” when used with respect to any Security or any installment of principal thereof or interest thereon means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

Trustee ” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of that series.

 

Trust Indenture Act ” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided , however , that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.

 

United States ” or “ U.S. ” means the United States of America (including the states and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.

 

United States Alien ” means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.

 

U.S. Government Obligations ” means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under clauses (i) or (ii), are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.

 

Section 1.2                                     Compliance Certificates and Opinions.

 

Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:

 

5



 

(a)                                  a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;

 

(b)                                  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(c)                                   a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and

 

(d)                                  a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

Section 1.3                                     Form of Documents Delivered to Trustee.

 

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.

 

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Any certificate, statement or opinion of an officer of the Company or of counsel may be based insofar as it relates to accounting matters, upon a certificate or opinion of or representations by a firm of accountants or an accountant in the employ of the Company, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.

 

Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.

 

Section 1.4                                     Acts of Holders.

 

(a)                                  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided in this Section.

 

6



 

(b)                                  The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.

 

(c)                                   The ownership of Securities and the principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.

 

(d)                                  If the Company shall solicit from the Holders of any Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Securities of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

 

(e)                                   Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.

 

Section 1.5                                     Notices, Etc., to Trustee and Company.

 

Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

 

(a)                                  the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or

 

(b)                                  the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Treasurer at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.

 

In addition to the foregoing, the Trustee agrees to accept and act upon notice, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods.  If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling.  The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction.  The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

 

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Section 1.6                                     Notice to Holders of Securities; Waiver.

 

Except as otherwise expressly provided herein or in the form of Securities of any particular series pursuant to the provisions of this Indenture, where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given to Holders of Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.

 

In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such notice with respect to other Holders of Securities. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.

 

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

 

Section 1.7                                     Language of Notices, Etc.

 

Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication.

 

Section 1.8                                     Conflict with Trust Indenture Act.

 

If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provisions shall control.

 

Section 1.9                                     Effect of Headings and Table of Contents.

 

The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 1.10                              Successors and Assigns.

 

All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 

Section 1.11                              Separability Clause.

 

In case any provision in this Indenture shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 1.12                              Benefits of Indenture.

 

Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 1.13                              Governing Law.

 

This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York.

 

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Section 1.14                              Legal Holidays.

 

In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or the Securities other than a provision in the Securities which specifically states that such provision shall apply in lieu of this Section) payment of interest or any Additional Amounts or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.

 

Section 1.15                              Waiver of Jury Trial; Submission of Jurisdiction.

 

EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.

 

The Company hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.

 

Section 1.16                              Force Majeure

 

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

Section 1.17                              FACTA

 

In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to the Indenture, the Company agrees (i) to provide to The Bank of New York Mellon Trust Company, N.A. sufficient information about Holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) so The Bank of New York Mellon Trust Company, N.A. can determine whether it has tax related obligations under Applicable Law, (ii) that The Bank of New York Mellon Trust Company, N.A. shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law for which The Bank of New York Mellon Trust Company, N.A. shall not have any liability, and (iii) to hold harmless The Bank of New York Mellon Trust Company, N.A. for any losses it may suffer due to the actions it takes to comply with such Applicable Law. The terms of this Section 1.17 shall survive the termination of this Indenture.

 

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ARTICLE 2

 

SECURITY FORMS

 

Section 2.1                                     Forms Generally.

 

The Securities, if any, of each series and Securities in global form, if any, shall be in the form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers of the Company executing such Securities, as evidenced by their execution of such Securities. If the forms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities.

 

Unless otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, the Securities of each series shall be issuable in registered form without coupons.

 

The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities, as evidenced by their execution of such Securities.

 

Section 2.2                                     Form of Trustee’s Certificate of Authentication.

 

The Trustee’s Certificate of Authentication shall be in substantially the following form:

 

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

 

 

The Bank of New York Mellon Trust Company, N.A.,

 

as Trustee

 

 

 

 

 

By:

 

 

 

Authorized Signatory

 

 

 

Dated:

 

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Section 2.3                                     Securities in Global Form.

 

If Securities of a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges or increased to reflect the issuance of additional Securities. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons, as shall be specified therein or in the Company Order delivered to the Trustee pursuant to Section 3.3.

 

ARTICLE 3

 

THE SECURITIES

 

Section 3.1                                     Amount Unlimited; Issuable in Series.

 

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

 

The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto prior to the issuance of Securities of any series:

 

(a)                                  the title of the Securities and the series in which such Securities shall be included;

 

(b)                                  the limit, if any, upon the aggregate principal amount of the Securities of such title and the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7);

 

(c)                                   whether Securities of the series may be issued in whole or in part in global form and, if so, the identity of the Depositary for such Securities in global form, and the terms and conditions, if any, upon which interests in such Securities in global form may be exchanged, in whole or in part, for the individual Securities represented thereby;

 

(d)                                  the date or dates on which the principal of such Securities is payable;

 

(e)                                   the rate or rates at which such Securities shall bear interest, if any, or method by which such rate or rates are determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts on such securities shall be payable in respect of specified taxes, assessments or other governmental charges withheld or deducted and, if so, whether the Company has the option to redeem the affected Securities rather than pay such Additional Amounts, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;

 

(f)                                    the place or places, if any, in addition to or other than the Borough of Manhattan, The City of New York, where the principal of (and premium, if any) and interest on or Additional Amounts, if any, payable in respect of such Securities shall be payable, where such Securities may be surrendered for registration of transfer, where such Securities may be surrendered for exchange and where notice and demands to or upon the Company, in respect of such Securities and this Indenture, may be served and where notices to Holders pursuant to Section 1.6 will be published;

 

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(g)                                   the period or periods within which, the price or prices at which and the terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Company or a Holder;

 

(h)                                  the obligation, if any, of the Company to redeem such Securities pursuant to any sinking fund and the period or periods within which, the price or prices at which and the terms and conditions upon which such Securities shall be redeemed in whole or in part, pursuant to such obligation;

 

(i)                                      the denominations in which Securities of the series, if any, shall be issuable if other than denominations of $1,000 and any integral multiple thereof;

 

(j)                                     whether the Securities will be convertible into or exchangeable for shares of common stock or other securities of the Company or any other Person and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at the Company’s option or the holders’ option) conversion or exchange features, and the applicable conversion or exchange period;

 

(k)                                  if other than dollars, the coin or currency in which the Securities of the series are denominated (including, but not limited to, foreign currency);

 

(l)                                      if other than the principal amount thereof, the portion of the principal amount of such Securities which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.2;

 

(m)                              if the amount of payments of principal of (and premium, if any) or interest, if any, on, and Additional Amounts in respect of such Securities may be determined with reference to an index, formula or other method other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined;

 

(n)                                  if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;

 

(o)                                  whether, and under what conditions, Additional Amounts will be payable to Holders of Securities of such series pursuant to Section 10.4;

 

(p)                                  any Events of Default with respect to Securities of such series, if not otherwise set forth herein; and

 

(q)                                  any other terms of such Securities (which terms shall not be inconsistent with the provisions of this Indenture).

 

All Securities of any one series shall be substantially identical except as to denomination and the rate or rates of interest, if any, redemption dates and sinking fund dates, if any, and Stated Maturity, the date from which interest, if any, shall accrue, the amount that shall be payable upon the declaration of acceleration and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.

 

If any of the terms of the Securities of any series were established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of such series.

 

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Section 3.2                                     Denominations.

 

Unless other denominations and amounts may from time to time be fixed by or pursuant to a Board Resolution, the Registered Securities of each series, if any, shall be issuable in registered form without coupons in denominations of $1,000 and any integral multiple thereof.

 

Section 3.3                                     Execution, Authentication, Delivery and Dating.

 

The Securities shall be executed on behalf of the Company by its Chairman of the Board, President, any Vice President or its Treasurer under its corporate seal reproduced thereon and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other minor errors or defects in any such reproduction of the seal or any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.

 

Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.

 

At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, executed by the Company, to the Trustee for authentication, together with the Board Resolution and Officers’ Certificate or supplemental indenture with respect to such Securities referred to in Section 3.1 and a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order and subject to the provisions hereof shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided with, and (subject to Section 6.1) shall be fully protected in relying upon, an Officers’ Certificate pursuant to Section 1.2 and an Opinion of Counsel stating,

 

(a)                                  that the form and terms of such Securities have been established in conformity with the provision of this Indenture;

 

(b)                                  that all conditions precedent set forth in this Indenture to the authentication and delivery of such Securities have been complied with; and

 

(c)                                   that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and

 

(d)                                  such other matters as the Trustee may reasonably request;

 

provided , however , that if all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at or prior to the time of the first issuance of Securities of such series.

 

The Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.

 

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If the Company shall establish pursuant to Section 3.1 that Securities of a series may be issued in whole or in part in global form, then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Securities in global form that (i) shall represent and shall be denominated in an authorized aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series and tenor to be represented by one or more Securities in global form, (ii) shall be registered, in the name of the Depositary for such Security or Securities in global form or the nominee of such Depositary, (iii) shall be delivered to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Notes in certificated form, this Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of CEDE & CO. or such other name as requested by an authorized representative of The Depository Trust Company and any payment is made to CEDE & CO., any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful since the registered owner hereof, CEDE & CO., has an interest herein.” Each Depositary designated pursuant to Section 3.1 for a Security in global form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation.

 

Each Security shall be dated the date of its authentication.

 

No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for in Section 2.2 or 6.14 executed by or on behalf of the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.

 

Section 3.4                                     Temporary Securities.

 

Pending the preparation of definitive Securities of any series, the Company may execute and deliver to the Trustee, and upon Company Order the Trustee shall authenticate and deliver, in the manner provided in Section 3.3, temporary Securities of such series which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form without coupons and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing such Securities may determine, as evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form, representing all of the Outstanding Securities of such series and tenor.

 

Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities of such series shall be exchangeable upon request for definitive Securities of such series containing identical terms and provisions upon surrender of the temporary Securities of such series at an office or agency of the Company maintained for such purpose pursuant to Section 10.2, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series a Company Order, Officers’ Certificate and Opinion of Counsel, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series containing identical terms and provisions. Unless otherwise specified as contemplated by Section 3.1 with respect to a temporary Security in global form, until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

 

Section 3.5                                     Registration, Transfer and Exchange.

 

With respect to the Securities of each series, if any, the Company shall cause to be kept, at an office or agency of the Company maintained pursuant to Section 10.2, a register (herein sometimes referred to as the

 

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“Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Securities of each series and of transfers of the Securities of each series. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers and exchanges of Securities as herein provided ; provided that the Company may, from time to time, designate (or change any designation of) any other Person or Persons to act as Security Registrar or co-Security Registrars with respect to the Securities of one or more series, with notice to the Trustee and as provided in Section 1.6 to the Holders. At all reasonable times the Security Register shall be open for inspection by the Company. In the event that the Trustee shall not be the Security Registrar, it shall have the right to examine the Security Register at all reasonable times.

 

Upon surrender for registration of transfer of any Security of any series at any office or agency of the Company maintained for that series pursuant to Section 10.2, the Company shall execute, and the Trustee, upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel, shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of an authorized denomination, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.

 

Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the individual Securities represented thereby, in definitive form, a Security in global form representing all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.

 

At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency of the Company maintained for that series pursuant to Section 10.2. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee, upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel, shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

If at any time the Depositary for the Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no longer be eligible under Section 3.3, the Company, by Company Order, shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company’s election pursuant to Section 3.1(c) shall no longer be effective with respect to the Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form in an aggregate principal amount and of like terms and tenor equal to the principal amount of the Security or Securities in global form representing such series in exchange for such Security or Securities in global form.

 

The Company may at any time and in its sole discretion determine that individual Securities of any series issued in global form shall no longer be represented by such Security or Securities in global form. In such event the Company will execute, and the Trustee, upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel for the authentication and delivery of individual definitive Securities of such series and of the same terms and tenor, will authenticate and deliver individual Securities of such series in definitive form in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities in global form representing such series in exchange for such Security or Securities in global form.

 

If specified by the Company pursuant to Section 3.1 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Security in global form for such series of Securities in exchange in whole or in part for individual Securities of such series in definitive form and of like terms and tenor on such terms as are acceptable to the Company, the Trustee and such Depositary. Thereupon, the Company shall execute, and the Trustee upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel for the authentication and delivery of individual definitive Securities of such series, shall authenticate and deliver, without service charge:

 

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(a)                                  to the Depositary or to each Person specified by such Depositary a new individual Security or Securities of the same series and of the same tenor, of authorized denominations, in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Security in global form; and

 

(b)                                  to such Depositary a new Security in global form in a denomination equal to the difference, if any, between the principal amount of the surrendered Security in global form and the aggregate principal amount of the individual Securities delivered to Holders thereof.

 

In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel will authenticate and deliver individual Securities in definitive registered form in authorized denominations.

 

Upon the exchange of a Security in global form for Securities in definitive form, at the direction of the Company, such Security in global form shall be cancelled by the Trustee. Securities issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered or to the Depositary.

 

Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee, upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel, shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

 

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

Every Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Security Registrar for such series of Security presented) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and such Security Registrar duly executed by the Holder thereof or his attorney duly authorized in writing.

 

No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.

 

The Company shall not be required (i) to issue, register the transfer of or exchange any Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 11.3 and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.

 

Section 3.6                                     Mutilated, Destroyed, Lost and Stolen Securities.

 

If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee, upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel, shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.

 

If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt of a Company Order, Officers’ Certificate and Opinion of Counsel the Trustee shall authenticate and deliver, in exchange for or in

 

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lieu of any such destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.

 

In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.

 

Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any all other Securities of that series duly issued hereunder.

 

The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.

 

Section 3.7                                     Payment of Interest; Interest Rights Preserved.

 

Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.

 

Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for such Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:

 

(a)                                  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities affected (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder of such Securities at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and at the expense of the Company, cause a similar notice to be published at least once in a newspaper, customarily published in the English language on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).

 

(b)                                  The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon

 

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such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such payment shall be deemed practicable by the Trustee.

 

Interest on Securities of any series that bear interest may be paid by mailing a check to the address of the person entitled thereto as such address shall appear in the Security Register or by wire transfer or other electronic means.

 

Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 3.8                                     Persons Deemed Owners.

 

Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any), and (subject to Section 3.5 and Section 3.7) interest on and Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

None of the Company, the Trustee, any Authenticating Agent, any Paying Agent, the Security Registrar or any co-Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and each of them may act or refrain from acting without liability on any information relating to such records provided by the Depositary.

 

Section 3.9                                     Cancellation.

 

All Securities surrendered for payment, redemption, repayment, registration of transfer or exchange or for credit against any sinking fund payment, if surrendered to any Person other than the Trustee, shall be delivered to the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee at the direction of the Company. No securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be cancelled by it in its customary manner unless by a Company Order the Company directs their return to it.

 

Section 3.10                              Computation of Interest.

 

Except as otherwise contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

Section 3.11                              CUSIP Numbers.

 

The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.

 

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ARTICLE 4

 

SATISFACTION AND DISCHARGE

 

Section 4.1                                     Satisfaction and Discharge of Indenture.

 

Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for, rights, obligations, duties and immunities of the Trustee set forth in the last paragraph of this Section and any right to receive Additional Amounts, as provided in Section 10.4), and the Trustee, pursuant to a Company Order and at the expense of the Company, shall execute proper instructions acknowledging satisfaction and discharge of this Indenture, when

 

(a)                                  either

 

(i)                                      all Securities theretofore authenticated and delivered (other than (A) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.6, and (B) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or

 

(ii)                                   all such Securities not theretofore delivered to the Trustee for cancellation

 

(1)                                  have become due and payable, or

 

(2)                                  will become due and payable at their Stated Maturity within one year, or

 

(3)                                  if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,

 

and the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount sufficient to pay and discharge, or U.S. Government Obligations, maturing as to principal and paying interest in such amounts and at such times as will insure the availability of cash sufficient to pay and discharge, the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, and any Additional Amounts with respect thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(b)                                  the Company has paid or caused to be paid all other sums payable hereunder by the Company; and

 

(c)                                   the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.

 

In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so by Company Order with respect to Securities of all series as to which it is Trustee and if the other conditions thereto are met. In the event there are two or more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such instruments from all Trustees hereunder.

 

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Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under Section 4.2 and the last paragraph of Section 10.3 shall survive such satisfaction and discharge.

 

Section 4.2                                     Application of Trust Money.

 

Subject to the provisions of the last paragraph of Section 10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities, and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any)

 

and any interest and Additional Amounts for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

 

ARTICLE 5

 

REMEDIES

 

Section 5.1                                     Events of Default.

 

“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

 

(a)                                  default in the payment of any interest on or any Additional Amounts payable in respect of any of the Securities of such series as and when such interest or Additional Amounts becomes due and payable, and continuance of such default for a period of 30 days; or

 

(b)                                  default in the payment of all or any part of the principal of (and premium, if any, on) any of the Securities of such series as and when the same becomes due and payable at Maturity, or default in the deposit of any sinking fund payment, when and as due by the terms of any of the Securities of such series; or

 

(c)                                   default in the performance, or breach, of any covenant or agreement of the Company in the Securities of such series or this Indenture (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, return receipt requested, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities to which covenant or agreement relates a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

 

(d)                                  a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 90 consecutive days; or

 

(e)                                   the Company shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian, sequestrator or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; or

 

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(f)                                    any other Event of Default provided with respect to Securities of that series.

 

Section 5.2                                     Acceleration of Maturity; Rescission and Annulment.

 

If an Event of Default described in clause (a), (b) or (c) above (if the Event of Default under clause (c) above is with respect to less than all series of Securities then outstanding) occurs and is continuing, then, and in each and every case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series (each such series voting as a separate class in the case of an Event of Default under clause (a) or (b) and all such series voting as one class in the case of an Event of Default under clause (c)), by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the entire principal of all Securities of such series, or such lesser amount as may be provided for in the Securities of that series, and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.

 

If an Event of Default described in clause (c) above with respect to all series of Outstanding Securities, or any Event of Default described in clause (d) or (e) above occurs and is continuing, then, and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of all the Outstanding Securities (treated as one class), by notice in writing to the Company (and to the Trustee if given by such Holders), may declare the entire principal of all the Outstanding Securities, or such lesser amount as may be provided for in the Securities, and interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable.

 

At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, each series voting as a separate class (or of all Securities, as the case may be, voting as a single class), by written notice to the Company and the Trustee, may waive all defaults with respect to such series (or with respect to all Securities, as the case may be) and rescind and annul such declaration and its consequences if:

 

(a)                                  the Company has paid or deposited with the Trustee a sum sufficient to pay:

 

(i)                                      all overdue installments of interest on and any Additional Amounts payable in respect of all Securities of that series (or upon all the Securities, as the case may be),

 

(ii)                                   the principal of (and premium, if any, on) any Securities of that series (or upon all the Securities, as the case may be) which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities,

 

(iii)                                to the extent that payment of such interest is lawful, interest upon overdue installments of interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and

 

(iv)                               all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

 

(b)                                  all Events of Default with respect to Securities, other than the non-payment of the principal of Securities which has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

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Section 5.3                                     Collection of Indebtedness and Suits for Enforcement by Trustee.

 

The Company covenants that if

 

(a)                                  default is made in the payment of any installment of interest on or any Additional Amounts payable in respect of any Security when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days, or

 

(b)                                  default is made in the payment of the principal of (or premium, if any, on) any Security at its Maturity,

 

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities the whole amount then due and payable on such Securities for principal (and premium, if any) and interest and Additional Amounts, if any, with interest upon the overdue principal (and premium, if any) and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest or any Additional Amounts, at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.

 

If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

Section 5.4                                     Trustee May File Proofs of Claim.

 

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

 

(a)                                  to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of that series, of principal (and premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders allowed in such judicial proceeding, and

 

(b)                                  to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

 

and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any

 

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amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 6.7.

 

Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding.

 

Section 5.5                                     Trustee May Enforce Claims Without Possession of Securities.

 

All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.

 

Section 5.6                                     Application of Money Collected.

 

Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (and premium, if any), interest or any Additional Amounts, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

First:  To the payment of all amounts due the Trustee under Section 6.7; and

 

Second:  To the payment of the amounts then due and unpaid upon the Securities for principal (and premium, if any) and interest and any Additional Amounts payable in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities for principal (and premium, if any), interest and Additional Amounts, respectively; and

 

Third:  The balance, if any, to the Company or as a court of competent jurisdiction may direct.

 

Section 5.7                                     Limitation on Suits.

 

No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless

 

(a)                                  such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;

 

(b)                                  the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;

 

(c)                                   such Holder or Holders have offered to the Trustee indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;

 

(d)                                  the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(e)                                   no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;

 

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it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holders or Holders of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.

 

Section 5.8                                     Unconditional Right of Holders to Receive Principal, Premium and Interest.

 

Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 3.5 and Section 3.7) interest on and any Additional Amounts in respect of such Security on the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.

 

Section 5.9                                     Restoration of Rights and Remedies.

 

If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders of Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.

 

Section 5.10                              Rights and Remedies Cumulative.

 

Except as provided in Section 5.7 and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.

 

Section 5.11                              Delay or Omission Not Waiver.

 

No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities.

 

Section 5.12                              Control by Holders of Securities.

 

The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series,  provided that

 

(a)                                  such direction shall not be in conflict with any rule of law or with this Indenture,

 

(b)                                  the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

 

(c)                                   such direction is not unduly prejudicial to the rights of other Holders of Securities of such series.

 

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Section 5.13                              Waiver of Past Defaults.

 

Prior to a declaration of acceleration of the Maturity of the Securities of any series as provided in Section 5.2, the Holders of not less than a majority in principal amount of Outstanding Securities of any series (each series voting as a separate class) may on behalf of the Holders of all the Securities of such series waive any past default or Event of Default described in clause (c) of Section 5.1 which relates to less than all of the series of Outstanding Securities, or the Holders of not less than a majority in principal amount of all Outstanding Securities (voting as one class) may on behalf of all Holders waive any past default or Event of Default described in said clause (c) (which relates to all series of Outstanding Securities) or in clause (d) or (e) of Section 5.1, except a default

 

(a)                                  in the payment of the principal of (and premium, if any) or interest on or Additional Amounts payable in respect of any Security of such series, or

 

(b)                                  in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.

 

Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

Section 5.14                              Undertaking for Costs.

 

All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit, other than the Trustee, of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, including the Trustee, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee or by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder of any Security for the enforcement of the payment of the principal of (and premium, if any) or interest on or any Additional Amounts in respect of any Security on or after the respective Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date) or interest on any overdue principal of any Security.

 

ARTICLE 6

 

THE TRUSTEE

 

Section 6.1                                     Certain Duties and Responsibilities.

 

(a)                                  Except during the continuance of an Event of Default known to the Trustee,

 

(i)                                      the Trustee undertakes to perform such duties, and only such duties, as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)                                   in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).

 

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(b)                                  In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

(c)                                   No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

 

(i)                                      this subsection shall not be construed to limit the effect of subsection (a) of this Section;

 

(ii)                                   the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

 

(iii)                                the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and

 

(iv)                               no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

 

(d)                                  Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section.

 

Section 6.2                                     Notice of Defaults.

 

Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant to Section 7.3(a), notice of such default hereunder known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided , however , that, except in the case of a default in the payment of the principal of (and premium, if any) or interest on, or any Additional Amounts with respect to, any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and responsible officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of Securities of such series; and provided further , that in the case of any default of the character specified in Section 5.1(c) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default, with respect to Securities of such series.

 

Section 6.3                                     Certain Rights of Trustee.

 

Except as otherwise provided in Section 6.1:

 

(a)                                  the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;

 

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(b)                                  any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

 

(c)                                   whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers’ Certificate, an Opinion of Counsel, or both;

 

(d)                                  the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

 

(e)                                   the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(f)                                    the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;

 

(g)                                   the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

 

(h)                                  the Trustee shall not be liable for interest on or the investment of any money received by it except as the Trustee may agree with the Company;

 

(i)                                      the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct;

 

(j)                                     the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(k)                                  in no event shall the Trustee be responsible or liable for special, punitive, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective or whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;

 

(l)                                      the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;

 

(m)                              the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and

 

(n)                                  the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.

 

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Section 6.4                                     Not Responsible for Recitals or Issuance of Securities.

 

The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.

 

Section 6.5                                     May Hold Securities.

 

The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Section 6.8 and Section 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.

 

Section 6.6                                     Money Held in Trust.

 

Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

Section 6.7                                     Compensation and Reimbursement.

 

The Company agrees:

 

(a)                                  to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

 

(b)                                  except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or willful misconduct; and

 

(c)                                   to fully indemnify the Trustee and its directors, officers, employees and agents for, and to hold them harmless against, any loss, liability, claim, damage or expense incurred without negligence or willful misconduct on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder.

 

As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interests on or any Additional Amounts with respect to the Securities.

 

When the Trustee incurs expenses or renders services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

The provisions of this Section shall survive the termination of this Indenture.

 

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Section 6.8                                     Disqualifications; Conflicting Interests.

 

If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.

 

Section 6.9                                     Corporate Trustee Required; Eligibility.

 

There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.

 

Section 6.10                              Resignation and Removal; Appointment of Successor.

 

(a)                                  No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11.

 

(b)                                  The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.

 

(c)                                   The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.

 

(d)                                  If at any time:

 

(i)                                      the Trustee shall fail to comply with Section 6.8 after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or

 

(ii)                                   the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Company or by any such Holder of a Security, or

 

(iii)                                The Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,

 

then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14, any Holder of a Security who has been a bona fide Holder of a Security of any series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees. Such courts may thereupon, after such notice, if any, as it may deem proper, remove the Trustee and appoint a successor Trustee with respect to such Securities.

 

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(e)                                   If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall have been appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by Section 6.11, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. Such court may thereupon, after such notice, if any, as it may deem proper, remove the Trustee and appoint a successor Trustee with respect to such Securities.

 

(f)                                    The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first class mail, postage prepaid, to the Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.

 

Section 6.11                              Acceptance of Appointment by Successor.

 

(a)                                  In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.

 

(b)                                  In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture other than as

 

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hereinafter expressly set forth, and each such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

 

(c)            Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.

 

(d)            No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

 

Section 6.12           Merger, Conversion, Consolidation or Succession to Business.

 

Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, by sale or otherwise, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.

 

Section 6.13           Preferential Collection of Claims Against Company.

 

If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

Section 6.14           Appointment of Authenticating Agent

 

The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.6, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

 

Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such

 

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Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, by sale or otherwise, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.

 

An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities, if any, of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

 

The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section.

 

The provisions of Section 3.8, Section 6.4 and Section 6.5 shall be applicable to each Authenticating Agent.

 

If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:

 

This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

 

 

As Trustee

 

 

 

 

 

By:

 

 

 

 

 

As Authenticating Agent

 

 

 

 

By:

Authorized Signatory

 

 

 

Dated:

 

If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not comply with Section 1.2) by the Company, shall appoint in accordance with this Section 6.14 an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities.

 

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ARTICLE 7

 

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

Section 7.1             Company To Furnish Trustee Names and Addresses of Holders.

 

The Company will furnish or cause to be furnished to the Trustee:

 

(a)            semi-annually, not more than 10 days after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Regular Record Date; and

 

(b)            at such other times as the Trustee may reasonably request in writing, within 30 days after receipt by the Company of any such request, a list of similar form and content to that in subsection (a) hereof as of a date not more than 15 days prior to the time such list is furnished;

 

provided , however , that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished.

 

Section 7.2             Preservation of Information; Communications to Holders.

 

(a)            The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities (i) contained in the most recent list furnished to the Trustee for each series as provided in Section 7.1, and (ii) received by the Trustee for each series in the capacity of Security Registrar if the Trustee is then acting in such capacity. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.

 

(b)            If three or more Holders of Securities of any series (hereinafter referred to as “applicants”) apply in writing to the Trustee, and furnish to the Trustee proof satisfactory to the Trustee that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series or with the Holders of all Securities with respect to their rights under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either:

 

(i)             afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.2(a), or

 

(ii)            inform such applicants as to the approximate number of Holders of Securities whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 7.2(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon written request of such applicants, mail to each Holder of Securities whose name and address appears in the information preserved at the time by the Trustee in accordance with Section 7.2(a), a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter

 

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an order so declaring, the Trustee shall mail copies of such material to all such Holders of Securities with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c)            Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 7.2(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 7.2(b).

 

Section 7.3             Reports by Trustee.

 

(a)            The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. If required by Section 313 (a) of the Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the date of the initial issuance of Securities under this Indenture deliver to Holders a brief report, dated as of such May 15, which complies with the provisions of such Section 313(a).

 

(b)            A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and with the Company. The Company will promptly notify the Trustee in writing when the Securities are listed on any stock exchange and of any delisting thereof.

 

Section 7.4             Reports by the Company.

 

The Company shall:

 

(a)            file with the Trustee, within 30 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports pursuant to either of said Sections, then it shall file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to Section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations;

 

(b)            file with the Trustee and Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and

 

(c)            transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 7.3(a) with respect to reports pursuant to Section 7.3(a), such summaries of any information, documents and reports required to be filed by the Company pursuant to paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

 

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).

 

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ARTICLE 8

 

CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE

 

Section 8.1             Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions.

 

Notwithstanding anything contained herein or in any of the Securities, the Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or merge with or into any other corporation, provided that in any such case, either the Company shall be the continuing corporation, or the successor corporation shall be a corporation organized and existing under the laws of the United States of America or a State thereof and such successor corporation shall expressly assume the due and punctual payment of the principal of (and premium, if any), any interest on, and any Additional Amounts payable pursuant to Section 10.4 with respect to, all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company by supplemental Indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor corporation.

 

Section 8.2             Rights and Duties of Successor Corporation.

 

In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the predecessor corporation shall be relieved of any further obligation under this Indenture and the Securities. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof.

 

In case of any such consolidation, merger, sale, lease or conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.

 

Section 8.3             Officers’ Certificate and Opinion of Counsel.

 

The Trustee, subject to the provisions of Section 6.1 and Section 6.3, may receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption and any such supplemental indenture, if any, complies with the provisions of this Article and that all conditions precedent herein provided relating to such transactions have been complied with.

 

ARTICLE 9

 

SUPPLEMENTAL INDENTURE

 

Section 9.1             Supplemental Indentures without Consent of Holders.

 

Without the consent of any Holders of Securities, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:

 

(a)            to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities contained; or

 

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(b)            to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or

 

(c)            to change or eliminate any restrictions on the payment of principal (or premium, if any) on Securities or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or

 

(d)            to change or eliminate any provision of this Indenture, provided that any such change or elimination (i) shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision or (ii) shall not apply to any Security Outstanding; or

 

(e)            to establish the form or terms of Securities of any series as permitted by Section 2.1 and Section 3.1; or

 

(f)             to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or

 

(g)            to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the interest of the Holders of Securities of any series in any material respect; or

 

(h)            to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein set forth; or

 

(i)             to add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Securities stating that such Events of Default are expressly being included solely to be applicable to such series); or

 

(j)             to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act, provided such action shall not adversely affect the interest of the Holders of the Securities of any series in any material respect.

 

Section 9.2             Supplemental Indentures with Consent of Holders.

 

With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided , however , that no such supplemental Indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,

 

(a)            change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any Additional Amounts payable in respect thereof, or any premium payable upon the redemption thereof, or change the obligation of the Company to pay Additional Amounts pursuant to Section 10.4 (except as contemplated by Section 8.1 and permitted by Section 9.1(a)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair

 

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the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or

 

(b)            reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or

 

(c)            modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or

 

(d)            adversely affect the right to repayment, if any, of Securities of any series at the option of the Holders thereof.

 

A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.

 

It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.

 

Section 9.3             Execution of Supplemental Indentures.

 

In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trust created by this Indenture, the Trustee shall be given, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.

 

Section 9.4             Effect of Supplemental Indentures.

 

Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.

 

Section 9.5             Conformity with Trust Indenture Act.

 

Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.

 

Section 9.6             Reference in Securities to Supplemental Indentures.

 

Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.

 

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ARTICLE 10

 

COVENANTS

 

Section 10.1           Payment of Principal, Premium, if any, and Interest.

 

The Company covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium, if any), interest on and any Additional Amounts payable in respect of the Securities of that series in accordance with the terms of such series of Securities and this Indenture.

 

Section 10.2           Maintenance of Office or Agency.

 

The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.

 

The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided , however , that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes.

 

The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise set forth in a Board Resolution or indenture supplemental hereto with respect to a series of Securities, the Company hereby designates as the Place of Payment for each series of Securities the Borough of Manhattan, The City of New York, and initially appoints the Trustee at its Corporate Trust Offices as the Company’s office or agency for each of such purposes in such city.

 

Section 10.3           Money for Securities Payments To Be Held in Trust.

 

If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any), or interest on, any of the Securities of that series, segregate and hold in trust for the benefit of the Person entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.

 

Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of (and premium, if any), or interest on, any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will

 

(a)            hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

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(b)            give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series; and

 

(c)            at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.

 

Except as otherwise provided in the form of Securities of any particular series pursuant to the provisions of this Indenture, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease;  provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment or to be mailed to Holders of Securities, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. In the absence of a written request from the Company to return unclaimed funds to the Company, the Trustee shall from time to time deliver all unclaimed funds to or as directed by applicable escheat authorities, as determined by the Trustee in its sole discretion, in accordance with the customary practices and procedures of the Trustee. Any unclaimed funds held by the Trustee pursuant to this section shall be held uninvested and without any liability for interest.

 

Section 10.4           Additional Amounts.

 

If the Securities of a series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of any series Additional Amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in the terms of such Security and this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

 

If the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal (and premium, if any) is made, and at least 10 days prior to each date of payment of principal (and premium, if any) or interest, if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate), the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal (and premium, if any) or interest on the Securities of that series shall be made to Holders of Securities of that series who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities and the Company will pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Security and the first paragraph of this Section. The Company covenants to indemnify the Trustee and any

 

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Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section.

 

Section 10.5           Statement as to Compliance; Notice of Certain Defaults.

 

(a)            The Company will deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement, which need not comply with Section 1.2, signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, stating that

 

(i)             a review of the activities of the Company and its subsidiaries during such year and of performance under this Indenture has been made under his supervision, and

 

(ii)            to the best of his knowledge, based on such review, (a) the Company has fulfilled all of its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to him and the nature and status thereof, and (b) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such event has occurred and is continuing, specifying each such event known to him and the nature and status thereof.

 

(b)            The Company will deliver to the Trustee within five days after the occurrence thereof, written notice of any event which after notice or lapse of time or both would become an Event of Default pursuant to clause (d) of Section 5.1.

 

ARTICLE 11

 

REDEMPTION OF SECURITIES

 

Section 11.1           Applicability of Article.

 

Securities of any series which are redeemable at the option of the Company before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) this Article. Securities of any series which are redeemable at the option of the Holder before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) Section 11.5 and Section 11.6 of this Article.

 

Section 11.2           Election to Redeem; Notice to Trustee

 

The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of the Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, the principal amount of Securities of such series to be redeemed and the relevant terms of the Securities to be redeemed. The election of a Holder to redeem any Securities shall be evidenced by a writing by a Holder sent to the Trustee and the Company at least 45 days prior to the Redemption Date fixed by the Holder in such notice (unless a shorter notice period shall be satisfactory to the Trustee). Such notice shall notify the Trustee and the Company of such Redemption Date, the principal amount of Securities of such series to be redeemed and any relevant terms of the Securities of such series to be redeemed.

 

Section 11.3           Selection by Trustee of Securities To Be Redeemed.

 

If less than all the Securities of any series having the same terms are to be redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date from the Outstanding Securities of such series not previously called for redemption, by lot and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of such series or

 

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any integral multiple thereof which is also an authorized denomination) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of such series.

 

The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

 

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.

 

Section 11.4          Notice of Redemption.

 

Notice of redemption shall be given in the manner provided in Section 1.6, not less than 30 nor more than 45 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed (which shorter period shall be acceptable to the Trustee), to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof. Any notice that is mailed to the Holder of any Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.

 

All notices of redemption shall state:

 

(a)           the Redemption Date,

 

(b)           the Redemption Price (or the method of calculating the Redemption Price) and accrued interest, if any,

 

(c)           if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Securities to be redeemed,

 

(d)           in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,

 

(e)           that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and, if applicable, that interest thereon shall cease to accrue on and after said date,

 

(f)            the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price,

 

(g)           that the redemption is for a sinking fund, if such is the case, and

 

(h)           the applicable CUSIP number and the statement required under Section 3.11 of this Indenture.

 

Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request and provision of such request at least 15 days prior to the notice being sent by the Trustee, by the Trustee in the name and at the expense of the Company.

 

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Section 11.5          Deposit of Redemption Price.

 

On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on and any Additional Amounts with respect thereto, all the Securities or portions thereof which are to be redeemed on that date.

 

Section 11.6          Securities Payable on Redemption Date.

 

Notice of redemption having been given by the Holder to the Company and Trustee pursuant to Section 11.2 or to the Holder by the Company or the Trustee pursuant to Section 11.4, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (and any Additional Amounts) to the Redemption Date; provided , however , that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates according to their terms and the provisions of Section 3.7.

 

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.

 

Section 11.7          Securities Redeemed in Part.

 

Any Security which is to be redeemed only in part shall be surrendered at any office or agency of the Company maintained for that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge, a new Security or Securities of the same series, containing identical terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.

 

ARTICLE 12

 

SINKING FUNDS

 

Section 12.1          Applicability of Article.

 

The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 3.1 for Securities of such series or as otherwise permitted or required by any form of Security of such series issued pursuant to this Indenture.

 

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

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Section 12.2          Satisfaction of Sinking Fund Payments with Securities.

 

The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of a series to be made pursuant to the terms of such Securities as provided for by the terms of such series, (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption) theretofore purchased or receive credit for Securities (not previously so credited) theretofore purchased by the Company and delivered to the Trustee for cancellation pursuant to Section 3.9, and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 12.2, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided , however , that the Trustee or such Paying Agent shall at the request of the Company from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released to the Company.

 

Section 12.3          Redemption of Securities for Sinking Fund.

 

Not less than 45 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 12.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.6 and Section 11.7.

 

Section 12.4          Counterparts.

 

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

*** Signature Page Follows ***

 

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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

 

PENSKE AUTOMOTIVE GROUP, INC.

 

 

 

 

BY:

 

 

Name:

 

 

Title:

 

 

 

 

THE BANK OF NEW YORK MELLON TRUST

 

COMPANY, N.A., as Trustee

 

 

 

 

BY:

 

 

Name:

 

 

Title:

 

 

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Exhibit 5

 

February 24, 2017

 

Penske Automotive Group, Inc.

2555 Telegraph Road

Bloomfield Hills, MI 48302

 

Re: Penske Automotive Group, Inc. Registration Statement on Form S-3

 

Ladies and Gentlemen:

 

I have acted as counsel to Penske Automotive Group, Inc., a Delaware corporation (“Penske Automotive”), in connection with the preparation of the Form S-3 Registration Statement filed with the Securities and Exchange Commission (the “Commission”) on the date hereof (the “Registration Statement”) relating to the proposed offer and sale from time to time of the following securities (the “Securities”) pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”): (i) shares of common stock of Penske Automotive, par value $0.0001 per share (the “Common Stock”); (ii) shares of preferred stock of Penske Automotive, par value $0.0001 per share (the “Preferred Stock”); (iii) one or more series of debt securities of Penske Automotive (the “Debt Securities”); (iv) the guarantees of each Penske Automotive subsidiary listed as a co-registrant in the Registration Statement (the “Subsidiary Guarantors”) with respect to Debt Securities (the “Guarantees”); (v) warrants for the purchase of Debt Securities, Preferred Stock, Common Stock or other securities (the “Warrants”); and (vi) rights to purchase Common Stock (the “Rights”).

 

Each series of Debt Securities will be issued under one of two indentures (each, an “Indenture”) to be entered into between Penske Automotive and The Bank of New York Mellon Trust Company, N.A., as Trustee, the forms of which are filed or incorporated by reference as exhibits to the Registration Statement.

 

Certain terms of the Securities to be issued from time to time, their creation, offering and issuance, any consideration to be received for such Securities, and any indenture, warrant, agreement, rights agreement and form of the applicable Security and their execution and delivery, will be approved by the Board of Directors of Penske Automotive (or a committee thereof) and, if applicable, the boards of directors of the Subsidiary Guarantors, as part of the corporate action taken and to be taken in connection with the authorization of the issuance of the Securities (the “Corporate Proceedings”).

 

I have examined originals or copies certified or otherwise identified to my satisfaction of such documents, corporate records, certificates of public officials and other instruments as I have deemed necessary or appropriate for the purposes of this opinion. I have also conducted such investigations of fact and law as I have deemed necessary or advisable for purposes of this opinion. In such examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals and the conformity to authentic original documents of all documents submitted to me as copies. As to any facts material to this opinion that I did not independently establish or verify, I have, with your consent, relied upon the statements, certificates and representations of officers and other representatives of Penske Automotive and others, in each case, as I have deemed necessary or appropriate for the purposes of this opinion.

 

I am a member of the Bar of the State of New York and the Bar of the State of Michigan, and I have not considered, and I express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York, the State of Michigan, the General Corporation Law of the State of Delaware (which includes the statutory provisions and all applicable provisions of the Delaware Constitution and the reported judicial cases interpreting those laws currently in effect), the federal laws of the United States of America, the corporate and limited liability company statutes listed on Schedule 1 hereto, the limited partnership statutes set forth on Schedule 1 hereto, and, the general partnership statues set forth on Schedule 1 hereto, and, to the extent that judicial or regulatory orders or decrees or consents, approvals, licenses, authorizations, validations, filings, recordings or registrations with governmental authorities are relevant, to those required under such laws, in each case as in effect on the date hereof (the “Relevant Laws”).

 

Based upon my examination of such documents and other matters I have deemed necessary or appropriate, I am of the opinion that:

 

(1) upon the completion of the Corporate Proceedings relating to the shares of Common Stock and the due issuance and delivery of the shares of Common Stock, the Common Stock, when sold in exchange for the consideration set forth in the prospectus contained in the Registration Statement and any prospectus supplement relating to the Common Stock, will be legally issued, fully paid and nonassessable;

 

1



 

(2) upon the completion of the Corporate Proceedings relating to a series of the Preferred Stock, the execution, delivery and filing with, and recording by, the Secretary of State of the State of Delaware of the Certificate of Designation relating to such series of the Preferred Stock, and the due issuance and delivery of the shares of Preferred Stock of such series, the Preferred Stock of such series, when sold in exchange for the consideration set forth in the prospectus contained in the Registration Statement and any prospectus supplement relating to such series of the Preferred Stock, will be legally issued, fully paid and nonassessable;

 

(3) upon the completion of the Corporate Proceedings relating to a series of the Debt Securities, and, if applicable, Guarantees, the execution and delivery of the applicable Indenture and the due execution, authentication, issuance and delivery of the Debt Securities and, if applicable, Guarantees, of such series, the Debt Securities and, if applicable, Guarantees, of such series, when sold in exchange for the consideration set forth in the prospectus contained in the Registration Statement and any prospectus supplement relating to such series of Debt Securities, and, if applicable, Guarantees, will be legally issued and will be binding obligations of Penske Automotive and, if applicable, the Subsidiary Guarantors, enforceable against them in accordance with their terms and entitled to the benefits of the applicable Indenture, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting creditors’ rights generally and subject to general principles of equity;

 

(4) upon the completion of the Corporate Proceedings relating to a series of Warrants, the execution and delivery of the warrant agreement relating to the Warrants (the “Warrant Agreement”) and the due execution, authentication, issuance and delivery of the Warrants, the Warrants, when sold in exchange for the consideration set forth in the prospectus contained in the Registration Statement and any prospectus supplement relating to such series of Warrants, will be legally issued and will be binding obligations of Penske Automotive enforceable against Penske Automotive in accordance with their terms and entitled to the benefits of the applicable Warrant Agreement, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting creditors’ rights generally and subject to general principles of equity; and

 

(5) upon the completion of the Corporate Proceedings relating to a series of Rights, the execution and delivery of the rights agreement relating to the Rights of such series (the “Rights Agreement”) and the due execution, authentication, issuance and delivery of the Rights, the Rights, issued without consideration, will be legally issued and will be binding obligations of Penske Automotive enforceable against Penske Automotive in accordance with their terms and entitled to the benefits of the applicable Rights Agreement, except as such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws affecting creditors’ rights generally and subject to general principles of equity.

 

The foregoing opinions assume that (a) the Registration Statement and any amendments relating thereto shall have become effective under the Securities Act and shall continue to be effective; (b) a prospectus supplement describing each class or series of Securities offered pursuant to the Registration Statement, to the extent required by applicable law, will be timely filed with the Commission; (c) at the time any Securities or the instruments defining the rights or terms of the Securities (the “Governing Documents”) are authorized, issued, executed, authenticated, acknowledged, delivered or filed (as the case may be), Penske Automotive and, if applicable, the Subsidiary Guarantors, will remain duly organized, validly existing and in good standing under the laws of their respective jurisdictions of organization, the Corporate Proceedings related thereto will not have been modified or rescinded and there will not have occurred any change in the law or in the applicable charter or bylaws affecting the authorization, issuance, execution, authentication, acknowledgment, delivery or filing of such Securities; (d) the terms of the Securities will be established in conformity with the applicable Governing Documents and so as not to violate or be void under any applicable law; (e) all certificates evidencing any Securities will be in the form required by law and approved for issuance by Penske Automotive and, if applicable, the Subsidiary Guarantors; and (f) none of the authorization, issuance, execution, authentication, acknowledgement, delivery or filing of any Securities or Governing Documents, nor compliance by Penske Automotive or, if applicable, the Subsidiary Guarantors with their respective obligations thereunder, will violate, conflict with or constitute a default or event of default under, or require any filing with or approval of any court or governmental body under, the applicable charter or bylaws as then in effect, any law then applicable to Penske Automotive or, if applicable, the Subsidiary Guarantors, any agreement or instrument then binding upon Penske Automotive or, if applicable, the Subsidiary Guarantors, or any then effective order of any court or governmental body having jurisdiction over Penske Automotive or, if applicable, the Subsidiary Guarantors.

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of my name under the heading “Legal Matters” in the prospectus included in the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 

2



 

 

Very truly yours,

 

 

 

 

 

/s/ Shane M. Spradlin

 

SHANE M. SPRADLIN

 

GENERAL COUNSEL

 



 

Schedule 1

 

Corporate and Limited Liability Company Statutes

 

Arizona Corporations and Associations Act

Arizona Limited Liability Company Act

Arkansas Business Corporation Act

California Corporations Code

Delaware Limited Liability Company Act

Florida Business Corporation Act

Georgia Business Corporation Code

Indiana Business Corporation Law

Indiana Business Flexibility Act

General Corporation Law of Nevada

New Jersey Business Corporation Act

New York Business Corporation Law

Ohio General Corporation Law

Ohio Revised Code Sections 1705.32 and 1705.29

Oklahoma Limited Liability Company Act

South Carolina Code of Laws, Article 5 of Chapter 8

Tennessee Code, Title 48

Texas Business Organizations Code

 

Limited Partnership Statutes

 

Florida Revised Uniform Limited Partnership Act

Texas Business Organizations Code

 

General Partnership Statutes

 

New Jersey Uniform Partnership Act (1996)

 


Exhibit 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-3 of our report dated February 24, 2017, relating to the financial statements and financial statement schedule of Penske Automotive Group, Inc. and subsidiaries (the “Company”), and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2016, and to reference to us under the heading “Experts” in the Prospectus, which is part of this Registration Statement.

 

/s/ Deloitte & Touche LLP

 

Detroit, Michigan

February 24, 2017

 


Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors and Shareholders
Sytner Group Limited:

 

We consent to the use of our report dated February 24, 2017, with respect to the consolidated balance sheet of Sytner Group Limited as of December 31, 2016, and the related consolidated statements of income, comprehensive income, equity, and cash flows for the year then ended and the related financial statement schedule, and the effectiveness of internal control over financial reporting as of December 31, 2016, and to the reference to our firm under the heading “Experts” in the prospectus.  The report appears in the December 31, 2016 Annual Report on Form 10-K of Penske Automotive Group, Inc., incorporated herein by reference. Neither the aforementioned financial statements nor the related financial statement schedule are included or incorporated by reference herein.

 

Our report dated February 24, 2017 contains an explanatory paragraph that states that our audit of internal control over financial reporting of Sytner Group Limited excluded an evaluation of the internal control over financial reporting of the Clare James Automotive (“Lightcliffe”) group of dealerships, which were acquired in July 2016.

 

/s/ KPMG LLP

 

 

 

Milton Keynes, United Kingdom

 

February 24, 2017

 

 


Exhibit 23.3

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors and Shareholders
UAG UK Holdings Limited:

 

We consent to the use of our report dated February 25, 2016, with respect to the consolidated balance sheet of UAG UK Holdings Limited as of December 31, 2015, and the related consolidated statements of income, comprehensive income, equity, and cash flows for the year then ended and the related financial statement schedule , and to the reference to our firm under the heading “Experts” in the prospectus.  The report appears in the December 31, 2016 Annual Report on Form 10-K of Penske Automotive Group, Inc., incorporated herein by reference.  Neither the aforementioned financial statements nor the related financial statement schedule are included or incorporated by reference herein.

 

/s/ KPMG LLP

 

 

 

Milton Keynes, United Kingdom

 

February 24, 2017

 

 


Exhibit 23.4

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors and Shareholders
UAG UK Holdings Limited:

 

We consent to the use of our report dated February 26, 2015, with respect to the consolidated statements of income, comprehensive income, equity, and cash flows of UAG UK Holdings Limited for the year ended December 31, 2014 and the related financial statement schedule , and to the reference to our firm under the heading “Experts” in the prospectus.  The report appears in the December 31, 2016 Annual Report on Form 10-K of Penske Automotive Group, Inc., incorporated herein by reference.  Neither the aforementioned financial statements nor the related financial statement schedule are included or incorporated by reference herein.

 

/s/ KPMG Audit Plc

 

 

 

Birmingham, United Kingdom

 

February 24, 2017

 

 


Exhibit 25.1

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           
o

 


 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

(Jurisdiction of incorporation
if not a U.S. national bank)

 

95-3571558
(I.R.S. employer
identification no.)

 

400 South Hope Street
Suite 500
Los Angeles, California

(Address of principal executive offices)

 

90071
(Zip code)

 


 

PENSKE AUTOMOTIVE GROUP, INC.
(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

22-3086739
(I.R.S. employer
identification no.)

 



 

TABLE OF ADDITIONAL REGISTRANTS

 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

ATC CHATTANOOGA, LLC

 

Delaware

 

38-3944558

ATC KNOXVILLE, LLC

 

Delaware

 

36-4798298

ATC REALTY INVESTMENTS, LLC

 

Oklahoma

 

46-1057967

ATC WEST TEXAS, LLC

 

Delaware

 

38-3933090

ATLANTIC AUTO FUNDING CORPORATION

 

Delaware

 

16-1480801

ATLANTIC AUTO SECOND FUNDING CORPORATION

 

Delaware

 

16-1502671

ATLANTIC AUTO THIRD FUNDING CORPORATION

 

Delaware

 

16-1505549

AUTO MALL PAYROLL SERVICES, INC.

 

Florida

 

65-0168491

AUTOMOTIVE MEDIA HOLDINGS, LLC

 

Delaware

 

27-0487960

BOWEN REALTY INVESTMENTS, LLC

 

Oklahoma

 

73-1199575

BRETT MORGAN CHEVROLET-GEO, INC.

 

Delaware

 

62-1666250

CENTRAL FORD CENTER, INC.

 

Arkansas

 

71-0472936

CJNS, LLC

 

Delaware

 

86-1024936

CLASSIC AUTO GROUP, INC.

 

New Jersey

 

22-3115638

CLASSIC ENTERPRISES, LLC

 

Delaware

 

22-3115638

CLASSIC IMPORTS, INC.

 

New Jersey

 

22-3528527

CLASSIC MANAGEMENT COMPANY, INC.

 

New Jersey

 

22-3271563

CLASSIC MOTOR SALES, LLC

 

Delaware

 

22-3555425

CLASSIC NISSAN OF TURNERSVILLE, LLC

 

Delaware

 

52-2097845

 

2



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

CLASSIC OLDSMOBILE-PONTIAC-GMC TRUCK, LTD.

 

Texas

 

74-2355160

CLASSIC SPECIAL ADVERTISING, INC.

 

Texas

 

74-2821777

CLASSIC SPECIAL AUTOMOTIVE GP, LLC

 

Texas

 

74-2974762

CLASSIC SPECIAL AUTOMOTIVE, LTD.

 

Texas

 

74-2974762

CLASSIC SPECIAL HYUNDAI, LTD.

 

Texas

 

74-2974736

CLASSIC SPECIAL, LLC

 

Texas

 

74-2974736

CLASSIC TURNERSVILLE, INC.

 

New Jersey

 

22-3523436

COUNTY AUTO GROUP PARTNERSHIP

 

New Jersey

 

13-3678489

COVINGTON PIKE DODGE, INC.

 

Delaware

 

62-1470261

CYCLE HOLDINGS, LLC

 

Delaware

 

26-1860955

D. YOUNG CHEVROLET, LLC

 

Delaware

 

35-2035177

DAN YOUNG CHEVROLET, INC.

 

Indiana

 

35-1123225

DAN YOUNG MOTORS, LLC

 

Delaware

 

35-2035179

DANBURY AUTO PARTNERSHIP

 

Connecticut

 

06-1349205

DEALER ACCESSORIES, LLC

 

Delaware

 

26-0111056

DIFEO CHRYSLER PLYMOUTH JEEP EAGLE PARTNERSHIP

 

New Jersey

 

22-3186252

DIFEO HYUNDAI PARTNERSHIP

 

New Jersey

 

22-3186280

DIFEO LEASING PARTNERSHIP

 

New Jersey

 

22-3193493

DIFEO NISSAN PARTNERSHIP

 

New Jersey

 

22-3186257

DIFEO PARTNERSHIP, LLC

 

Delaware

 

22-3145559

DIFEO TENAFLY PARTNERSHIP

 

New Jersey

 

22-3186285

EUROPA AUTO IMPORTS, INC.

 

California

 

95-2305855

 

3



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

FLORIDA CHRYSLER PLYMOUTH, INC.

 

Florida

 

59-2676162

FRN OF TULSA, LLC

 

Delaware

 

74-2870051

GENE REED CHEVROLET, INC.

 

South Carolina

 

57-0714181

GMG MOTORS, INC.

 

California

 

95-2691214

GOODSON NORTH, LLC

 

Delaware

 

74-2962022

GOODSON SPRING BRANCH, LLC

 

Delaware

 

74-2962017

HBL, LLC

 

Delaware

 

38-3635872

HILL COUNTRY IMPORTS, LTD.

 

Texas

 

74-2585314

HT AUTOMOTIVE, LLC

 

Delaware

 

41-2251059

HUDSON MOTORS PARTNERSHIP

 

New Jersey

 

22-3186282

KMT/UAG, INC.

 

California

 

95-3189650

LANDERS AUTO SALES, LLC

 

Delaware

 

84-1664308

LANDERS BUICK-PONTIAC, INC.

 

Arkansas

 

71-0765000

LANDERS FORD NORTH, INC.

 

Arkansas

 

71-0833592

LATE ACQUISITION I, LLC

 

Delaware

 

33-1011098

LATE ACQUISITION II, LLC

 

Delaware

 

33-1011096

MICHAEL CHEVROLET-OLDSMOBILE, INC.

 

South Carolina

 

57-0917132

MOTORCARS ACQUISITION III, LLC

 

Delaware

 

38-3526235

MOTORCARS ACQUISITION IV, LLC

 

Delaware

 

38-3569545

MOTORCARS ACQUISITION V, LLC

 

Delaware

 

87-0721680

MOTORCARS ACQUISITION VI, LLC

 

Delaware

 

86-1121782

MOTORCARS ACQUISITION, LLC

 

Delaware

 

38-3526432

 

4



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

NATIONAL CITY FORD, INC.

 

Delaware

 

33-0834429

OCT PARTNERSHIP

 

New Jersey

 

22-3248303

PAG ACQUISITION 27, LLC

 

Delaware

 

27-0398643

PAG ACQUISITION 28, LLC

 

Delaware

 

27-0398588

PAG ACQUISITION 53, LLC

 

Delaware

 

n/a

PAG ACQUISITION 54, LLC

 

Delaware

 

n/a

PAG ACQUISITION 55, LLC

 

Delaware

 

n/a

PAG ANNAPOLIS JL1, LLC

 

Delaware

 

46-3695869

PAG ARKANSAS F1, LLC

 

Delaware

 

45-3265105

PAG ARKANSAS F2, LLC

 

Delaware

 

45-4552146

PAG ATLANTA MANAGEMENT, LLC.

 

Delaware

 

13-3865530

PAG AUSTIN H1, LLC

 

Delaware

 

n/a

PAG AZ PROPERTIES, LLC

 

Delaware

 

26-1377262

PAG BEDFORD A1, LLC

 

Delaware

 

27-3969879

PAG BEDFORD P1, LLC

 

Delaware

 

27-3969933

PAG BEDFORD PROPERTIES, LLC

 

Delaware

 

n/a

PAG CHANDLER JLR, LLC

 

Delaware

 

n/a

PAG CHANTILLY M1, LLC

 

Delaware

 

26-1377251

PAG CLOVIS T1, INC.

 

Delaware

 

26-1857570

PAG CONNECTICUT LR1, LLC

 

Delaware

 

47-2218165

PAG CYCLES MI, LLC

 

Delaware

 

46-3817133

PAG DAVIE P1, LLC

 

Delaware

 

46-3687094

 

5



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

PAG DISTRIBUTOR S1, LLC

 

Delaware

 

87-0766681

PAG EAST, LLC

 

Delaware

 

35-2036025

PAG EDISON B1, LLC

 

Delaware

 

46-2906028

PAG GOODYEAR F1, LLC

 

Delaware

 

86-1024935

PAG GREENWICH B1, LLC

 

Delaware

 

46-4359670

PAG GREENWICH HOLDINGS, LLC

 

Delaware

 

46-4033557

PAG INTERNATIONAL SERVICES, LLC

 

Delaware

 

46-4042748

PAG INVESTMENTS, LLC

 

Delaware

 

27-5082711

PAG MADISON L1, LLC

 

Delaware

 

46-0992715

PAG MADISON T1, LLC

 

Delaware

 

46-0983205

PAG MARIN M1, INC.

 

Delaware

 

27-4171554

PAG MCALLEN H1, LLC

 

Delaware

 

46-3643632

PAG MCALLEN T1, LLC

 

Delaware

 

46-3655017

PAG MENTOR A1, INC.

 

Ohio

 

34-1403202

PAG MICHIGAN HOLDINGS, LLC

 

Delaware

 

30-0193048

PAG NEW JERSEY A1, LLC

 

Delaware

 

47-5025018

PAG NEW JERSEY CS, LLC

 

Delaware

 

81-2315006

PAG NEW JERSEY JL1, LLC

 

Delaware

 

47-5068848

PAG NEW JERSEY JL2, LLC

 

Delaware

 

81-4966517

PAG NEW JERSEY JL3, LLC

 

Delaware

 

n/a

PAG NEW JERSEY P1, LLC

 

Delaware

 

47-5038322

PAG NORTH SCOTTSDALE BE, LLC

 

Delaware

 

26-1363608

 

6



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

PAG NORTH SCOTTSDALE M1, LLC

 

Delaware

 

n/a

PAG NORTHERN CALIFORNIA MANAGEMENT, INC.

 

Delaware

 

27-1068131

PAG ONTARIO B1, INC.

 

Delaware

 

46-0738871

PAG ORANGE COUNTY L1, INC.

 

Delaware

 

47-4863566

PAG ORANGE COUNTY MANAGEMENT COMPANY, INC.

 

Delaware

 

45-3981423

PAG ORANGE COUNTY RR1, INC.

 

Delaware

 

45-4896142

PAG ORANGE COUNTY S1, INC.

 

Delaware

 

47-0957524

PAG ORLANDO GENERAL, LLC

 

Delaware

 

26-1207380

PAG ORLANDO LIMITED, LLC

 

Delaware

 

26-1206643

PAG ORLANDO PARTNERSHIP, LTD.

 

Florida

 

26-1340023

PAG PENNSYLVANIA CS, LLC

 

Delaware

 

81-2338272

PAG ROSWELL B1, LLC

 

Delaware

 

81-4497213

PAG SAN FRANCISCO N1, INC.

 

Delaware

 

27-3979807

PAG SANTA ANA AVW, INC.

 

Delaware

 

27-1339782

PAG SANTA ANA B1, INC.

 

Delaware

 

45-2267865

PAG SURPRISE T1, LLC

 

Delaware

 

46-2042352

PAG TEMPE M1, LLC

 

Delaware

 

26-1377292

PAG TEXAS MANAGEMENT COMPANY, LLC

 

Delaware

 

45-3981193

PAG TURNERSVILLE AU, LLC

 

Delaware

 

26-4426061

PAG WASHINGTON A1, LLC

 

Delaware

 

81-2292613

PAG WEST ACQUISITION 8, INC.

 

Delaware

 

n/a

PAG WEST ACQUISITION 9, INC.

 

Delaware

 

n/a

 

7



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

PAG WEST BAY MIT, LLC

 

Delaware

 

27-3042965

PAG WEST, LLC

 

Delaware

 

13-3914611

PALM AUTO PLAZA, LLC

 

Delaware

 

65-1272503

PEACHTREE NISSAN, INC.

 

Georgia

 

58-1273321

PENSKE CAR RENTAL (DT) MEMPHIS, LLC

 

Delaware

 

32-0442689

PENSKE CAR RENTAL HOLDINGS, LLC

 

Delaware

 

46-0788554

PENSKE CAR RENTAL INDIANA, LLC

 

Delaware

 

80-0877574

PENSKE CAR RENTAL MEMPHIS, LLC

 

Delaware

 

35-2452611

PENSKE COMMERCIAL VEHICLES US, LLC

 

Delaware

 

46-2758677

PETER PAN MOTORS, INC.

 

California

 

94-1747384

PMRC, LLC

 

Delaware

 

22-3881752

RELENTLESS PURSUIT ENTERPRISES, INC.

 

California

 

93-1008771

SA AUTOMOTIVE, LTD.

 

Arizona

 

86-0583813

SAU AUTOMOTIVE, LTD.

 

Arizona

 

86-0839423

SCOTTSDALE 101 MANAGEMENT, LLC

 

Delaware

 

26-1363820

SCOTTSDALE FERRARI, LLC

 

Arizona

 

86-0981831

SCOTTSDALE MANAGEMENT GROUP, LTD.

 

Arizona

 

86-0573438

SCOTTSDALE PAINT & BODY, LLC

 

Delaware

 

26-1363898

SDG AUTOMOTIVE INVESTMENTS, LLC

 

Ohio

 

20-1680626

SIGMA MOTORS INC.

 

Arizona

 

86-1047752

SINGLE SOURCE TRUCK PARTS, LLC

 

Delaware

 

n/a

SK MOTORS, LLC

 

Delaware

 

32-0212884

 

8



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

SL AUTOMOTIVE, LLC

 

Delaware

 

38-3763696

SOMERSET MOTORS PARTNERSHIP

 

New Jersey

 

22-3186283

SOMERSET MOTORS, INC.

 

New Jersey

 

22-2986160

SUN MOTORS, LLC

 

Delaware

 

30-0438071

TAMBURRO ENTERPRISES, INC.

 

Nevada

 

88-0485938

THE AROUND THE CLOCK FREIGHTLINER GROUP, LLC

 

Oklahoma

 

73-1199515

UAG ARKANSAS FLM, LLC

 

Delaware

 

87-0766675

UAG ATLANTA H1, LLC

 

Delaware

 

30-0282545

UAG ATLANTA IV MOTORS, INC.

 

Georgia

 

58-1092076

UAG CAPITOL, INC.

 

Delaware

 

76-0759095

UAG CAROLINA, INC.

 

Delaware

 

13-3959601

UAG CENTRAL NJ, LLC

 

Delaware

 

90-0131625

UAG CENTRAL REGION MANAGEMENT, LLC

 

Indiana

 

38-3537233

UAG CHANTILLY AU, LLC

 

Delaware

 

87-0766680

UAG CHCC, INC.

 

New Jersey

 

22-2990922

UAG CHEVROLET, INC.

 

New Jersey

 

22-2762327

UAG CITRUS MOTORS, LLC

 

Delaware

 

59-3525335

UAG CLASSIC, INC.

 

Delaware

 

13-3987807

UAG CLOVIS, INC.

 

Delaware

 

76-0759096

UAG CONNECTICUT, LLC

 

Delaware

 

06-1589742

UAG DULUTH, INC.

 

Texas

 

58-1786146

UAG EAST, LLC

 

Delaware

 

13-3944970

 

9



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

UAG ESCONDIDO A1, INC.

 

Delaware

 

20-3697398

UAG ESCONDIDO H1, INC.

 

Delaware

 

20-3697348

UAG ESCONDIDO M1, INC.

 

Delaware

 

20-3697423

UAG FAYETTEVILLE I, LLC

 

Delaware

 

71-0858576

UAG FAYETTEVILLE II, LLC

 

Delaware

 

71-0858577

UAG FAYETTEVILLE III, LLC

 

Delaware

 

71-0858578

UAG FINANCE COMPANY, INC.

 

Delaware

 

13-3953915

UAG GRACELAND II, INC.

 

Delaware

 

13-3991339

UAG HOUSTON ACQUISITION, LTD.

 

Texas

 

38-3542915

UAG HUDSON CJD, LLC

 

Delaware

 

87-0766678

UAG HUDSON, INC.

 

New Jersey

 

22-1919268

UAG INTERNATIONAL HOLDINGS, INC.

 

Delaware

 

51-0393682

UAG KISSIMMEE MOTORS, LLC

 

Delaware

 

58-2361341

UAG LANDERS SPRINGDALE, LLC

 

Delaware

 

71-0846659

UAG LOS GATOS, INC.

 

Delaware

 

76-0759098

UAG MARIN, INC.

 

Delaware

 

76-0759100

UAG MEMPHIS II, INC.

 

Delaware

 

62-1722683

UAG MEMPHIS IV, INC.

 

Delaware

 

62-1722679

UAG MEMPHIS MANAGEMENT, INC.

 

Delaware

 

62-1722677

UAG MENTOR ACQUISITION, LLC

 

Delaware

 

38-3553602

UAG MICHIGAN CADILLAC, LLC

 

Delaware

 

38-3543705

UAG MICHIGAN H1, LLC

 

Delaware

 

42-1539792

 

10



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

UAG MICHIGAN PONTIAC-GMC, LLC

 

Delaware

 

38-3543709

UAG MICHIGAN T1, LLC

 

Delaware

 

38-3543711

UAG MICHIGAN TMV, LLC

 

Delaware

 

38-3544903

UAG MINNEAPOLIS B1, LLC

 

Delaware

 

76-0819658

UAG NANUET II, LLC

 

Delaware

 

22-3784978

UAG NORTHEAST, LLC

 

Delaware

 

13-3914694

UAG REALTY, LLC

 

Delaware

 

38-3543708

UAG ROYAL PALM M1, LLC

 

Delaware

 

06-1774003

UAG ROYAL PALM, LLC

 

Delaware

 

80-0072974

UAG SAN DIEGO A1, INC.

 

Delaware

 

20-3697335

UAG SAN DIEGO AU, INC.

 

Delaware

 

20-3955972

UAG SAN DIEGO H1, INC.

 

Delaware

 

20-3697304

UAG SAN DIEGO MANAGEMENT, INC.

 

Delaware

 

20-3955897

UAG STEVENS CREEK II, INC.

 

Delaware

 

47-0957526

UAG TEXAS II, INC.

 

Delaware

 

13-3933083

UAG TEXAS, LLC

 

Delaware

 

13-3933080

UAG TULSA HOLDINGS, LLC

 

Delaware

 

51-0410923

UAG TURNERSVILLE REALTY, LLC

 

Delaware

 

38-3543708

UAG VK, LLC

 

Delaware

 

38-3590846

UAG WEST BAY AM, LLC

 

Delaware

 

61-1442389

UAG WEST BAY FM, LLC

 

Delaware

 

86-1088680

UAG WEST BAY IA, LLC

 

Delaware

 

30-0150593

 

11



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

UAG WEST BAY IAU, LLC

 

Delaware

 

61-1442390

UAG WEST BAY IB, LLC

 

Delaware

 

35-2196049

UAG WEST BAY II, LLC

 

Delaware

 

38-3672787

UAG WEST BAY IL, LLC

 

Delaware

 

30-0150590

UAG WEST BAY IM, LLC

 

Delaware

 

37-1458215

UAG WEST BAY IN, LLC

 

Delaware

 

04-3805793

UAG WEST BAY IP, LLC

 

Delaware

 

32-3360132

UAG WEST BAY IV, LLC

 

Delaware

 

32-0060125

UAG WEST BAY IW, LLC

 

Delaware

 

36-4521984

UAG YOUNG II, INC.

 

Delaware

 

13-3985679

UAG-CARIBBEAN, INC.

 

Delaware

 

13-3980142

UNITED AUTO LICENSING, LLC

 

Delaware

 

38-3556189

UNITED AUTO SCOTTSDALE PROPERTY HOLDINGS, LLC

 

Delaware

 

86-1123497

UNITED AUTOCARE PRODUCTS, LLC

 

Delaware

 

13-3922210

UNITED NISSAN, INC.

 

Georgia

 

58-2038392

UNITED NISSAN, INC.

 

Tennessee

 

62-0790848

UNITED RANCH AUTOMOTIVE, LLC

 

Delaware

 

86-1008720

UNITEDAUTO DODGE OF SHREVEPORT, INC.

 

Delaware

 

72-1393145

UNITEDAUTO FIFTH FUNDING, INC.

 

Delaware

 

16-1549850

UNITEDAUTO FINANCE, INC.

 

Delaware

 

16-1456003

UNITEDAUTO FOURTH FUNDING INC.

 

Delaware

 

16-1543345

WEST PALM AUTO MALL, INC.

 

Florida

 

65-0050208

 

12



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

WEST PALM NISSAN, LLC

 

Delaware

 

06-1773996

WESTBURY SUPERSTORE, LTD.

 

New York

 

11-2983989

WTA MOTORS, LTD.

 

Texas

 

33-1011102

YOUNG MANAGEMENT GROUP, INC.

 

Indiana

 

35-1897920

 

2555 Telegraph Road
Bloomfield Hills, Michigan

(Address of principal executive offices)

 

48302
(Zip code)

 


 

Senior Debt Securities
and Subsidiary Guarantees of Senior Debt Securities

(Title of the indenture securities)

 

 

 

13



 

1.              General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

Comptroller of the Currency United States Department of the Treasury

 

Washington, DC 20219

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 

14



 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

15



 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 22 nd  day of February, 2017.

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

By:

/s/ Lawrence M. Kusch

 

 

Name:

Lawrence M. Kusch

 

 

Title:

Vice President

 

16



 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 500, Los Angeles, CA 90071

 

At the close of business December 31, 2016, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

Dollar amounts

 

 

 

 

 

in thousands

 

ASSETS

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

1,645

 

Interest-bearing balances

 

 

 

278,360

 

Securities:

 

 

 

 

 

Held-to-maturity securities

 

 

 

0

 

Available-for-sale securities

 

 

 

719,638

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

Federal funds sold

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

Loans and leases held for sale

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

0

 

Trading assets

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

11,405

 

Other real estate owned

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies 

 

 

 

0

 

Direct and indirect investments in real estate ventures 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

Goodwill

 

 

 

856,313

 

Other intangible assets

 

 

 

50,819

 

Other assets

 

 

 

187,830

 

Total assets

 

 

 

$

2,106,010

 

 



 

LIABILITIES

 

 

 

 

 

Deposits:

 

 

 

 

 

In domestic offices

 

 

 

616

 

Noninterest-bearing

 

616

 

 

 

Interest-bearing

 

0

 

 

 

Not applicable

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

Federal funds purchased

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

0

 

Trading liabilities

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

0

 

Not applicable

 

 

 

 

 

Not applicable

 

 

 

 

 

Subordinated notes and debentures

 

 

 

0

 

Other liabilities

 

 

 

292,769

 

Total liabilities

 

 

 

293,385

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

0

 

Common stock

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

1,122,729

 

Not available

 

 

 

 

 

Retained earnings

 

 

 

690,002

 

Accumulated other comprehensive income

 

 

 

-1,106

 

Other equity capital components

 

 

 

0

 

Not available

 

 

 

 

 

Total bank equity capital

 

 

 

1,812,625

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

0

 

Total equity capital

 

 

 

1,812,625

 

Total liabilities and equity capital

 

 

 

2,106,010

 

 



 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty            )

CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

)

 

William D. Lindelof, Director

)

Directors (Trustees)

Alphonse J. Briand, Director

)

 

 


Exhibit 25.2

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM T-1

 

STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE

 

CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)           
o

 


 

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.

(Exact name of trustee as specified in its charter)

 

(Jurisdiction of incorporation
if not a U.S. national bank)

 

95-3571558
(I.R.S. employer
identification no.)

 

400 South Hope Street
Suite 500
Los Angeles, California

(Address of principal executive offices)

 

90071
(Zip code)

 


 

PENSKE AUTOMOTIVE GROUP, INC.
(Exact name of obligor as specified in its charter)

 

Delaware
(State or other jurisdiction of
incorporation or organization)

 

22-3086739
(I.R.S. employer
identification no.)

 



 

TABLE OF ADDITIONAL REGISTRANTS

 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

ATC CHATTANOOGA, LLC

 

Delaware

 

38-3944558

ATC KNOXVILLE, LLC

 

Delaware

 

36-4798298

ATC REALTY INVESTMENTS, LLC

 

Oklahoma

 

46-1057967

ATC WEST TEXAS, LLC

 

Delaware

 

38-3933090

ATLANTIC AUTO FUNDING CORPORATION

 

Delaware

 

16-1480801

ATLANTIC AUTO SECOND FUNDING CORPORATION

 

Delaware

 

16-1502671

ATLANTIC AUTO THIRD FUNDING CORPORATION

 

Delaware

 

16-1505549

AUTO MALL PAYROLL SERVICES, INC.

 

Florida

 

65-0168491

AUTOMOTIVE MEDIA HOLDINGS, LLC

 

Delaware

 

27-0487960

BOWEN REALTY INVESTMENTS, LLC

 

Oklahoma

 

73-1199575

BRETT MORGAN CHEVROLET-GEO, INC.

 

Delaware

 

62-1666250

CENTRAL FORD CENTER, INC.

 

Arkansas

 

71-0472936

CJNS, LLC

 

Delaware

 

86-1024936

CLASSIC AUTO GROUP, INC.

 

New Jersey

 

22-3115638

CLASSIC ENTERPRISES, LLC

 

Delaware

 

22-3115638

CLASSIC IMPORTS, INC.

 

New Jersey

 

22-3528527

CLASSIC MANAGEMENT COMPANY, INC.

 

New Jersey

 

22-3271563

CLASSIC MOTOR SALES, LLC

 

Delaware

 

22-3555425

CLASSIC NISSAN OF TURNERSVILLE, LLC

 

Delaware

 

52-2097845

 

2



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

CLASSIC OLDSMOBILE-PONTIAC-GMC TRUCK, LTD.

 

Texas

 

74-2355160

CLASSIC SPECIAL ADVERTISING, INC.

 

Texas

 

74-2821777

CLASSIC SPECIAL AUTOMOTIVE GP, LLC

 

Texas

 

74-2974762

CLASSIC SPECIAL AUTOMOTIVE, LTD.

 

Texas

 

74-2974762

CLASSIC SPECIAL HYUNDAI, LTD.

 

Texas

 

74-2974736

CLASSIC SPECIAL, LLC

 

Texas

 

74-2974736

CLASSIC TURNERSVILLE, INC.

 

New Jersey

 

22-3523436

COUNTY AUTO GROUP PARTNERSHIP

 

New Jersey

 

13-3678489

COVINGTON PIKE DODGE, INC.

 

Delaware

 

62-1470261

CYCLE HOLDINGS, LLC

 

Delaware

 

26-1860955

D. YOUNG CHEVROLET, LLC

 

Delaware

 

35-2035177

DAN YOUNG CHEVROLET, INC.

 

Indiana

 

35-1123225

DAN YOUNG MOTORS, LLC

 

Delaware

 

35-2035179

DANBURY AUTO PARTNERSHIP

 

Connecticut

 

06-1349205

DEALER ACCESSORIES, LLC

 

Delaware

 

26-0111056

DIFEO CHRYSLER PLYMOUTH JEEP EAGLE PARTNERSHIP

 

New Jersey

 

22-3186252

DIFEO HYUNDAI PARTNERSHIP

 

New Jersey

 

22-3186280

DIFEO LEASING PARTNERSHIP

 

New Jersey

 

22-3193493

DIFEO NISSAN PARTNERSHIP

 

New Jersey

 

22-3186257

DIFEO PARTNERSHIP, LLC

 

Delaware

 

22-3145559

DIFEO TENAFLY PARTNERSHIP

 

New Jersey

 

22-3186285

EUROPA AUTO IMPORTS, INC.

 

California

 

95-2305855

 

3



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

FLORIDA CHRYSLER PLYMOUTH, INC.

 

Florida

 

59-2676162

FRN OF TULSA, LLC

 

Delaware

 

74-2870051

GENE REED CHEVROLET, INC.

 

South Carolina

 

57-0714181

GMG MOTORS, INC.

 

California

 

95-2691214

GOODSON NORTH, LLC

 

Delaware

 

74-2962022

GOODSON SPRING BRANCH, LLC

 

Delaware

 

74-2962017

HBL, LLC

 

Delaware

 

38-3635872

HILL COUNTRY IMPORTS, LTD.

 

Texas

 

74-2585314

HT AUTOMOTIVE, LLC

 

Delaware

 

41-2251059

HUDSON MOTORS PARTNERSHIP

 

New Jersey

 

22-3186282

KMT/UAG, INC.

 

California

 

95-3189650

LANDERS AUTO SALES, LLC

 

Delaware

 

84-1664308

LANDERS BUICK-PONTIAC, INC.

 

Arkansas

 

71-0765000

LANDERS FORD NORTH, INC.

 

Arkansas

 

71-0833592

LATE ACQUISITION I, LLC

 

Delaware

 

33-1011098

LATE ACQUISITION II, LLC

 

Delaware

 

33-1011096

MICHAEL CHEVROLET-OLDSMOBILE, INC.

 

South Carolina

 

57-0917132

MOTORCARS ACQUISITION III, LLC

 

Delaware

 

38-3526235

MOTORCARS ACQUISITION IV, LLC

 

Delaware

 

38-3569545

MOTORCARS ACQUISITION V, LLC

 

Delaware

 

87-0721680

MOTORCARS ACQUISITION VI, LLC

 

Delaware

 

86-1121782

MOTORCARS ACQUISITION, LLC

 

Delaware

 

38-3526432

 

4



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

NATIONAL CITY FORD, INC.

 

Delaware

 

33-0834429

OCT PARTNERSHIP

 

New Jersey

 

22-3248303

PAG ACQUISITION 27, LLC

 

Delaware

 

27-0398643

PAG ACQUISITION 28, LLC

 

Delaware

 

27-0398588

PAG ACQUISITION 53, LLC

 

Delaware

 

n/a

PAG ACQUISITION 54, LLC

 

Delaware

 

n/a

PAG ACQUISITION 55, LLC

 

Delaware

 

n/a

PAG ANNAPOLIS JL1, LLC

 

Delaware

 

46-3695869

PAG ARKANSAS F1, LLC

 

Delaware

 

45-3265105

PAG ARKANSAS F2, LLC

 

Delaware

 

45-4552146

PAG ATLANTA MANAGEMENT, LLC.

 

Delaware

 

13-3865530

PAG AUSTIN H1, LLC

 

Delaware

 

n/a

PAG AZ PROPERTIES, LLC

 

Delaware

 

26-1377262

PAG BEDFORD A1, LLC

 

Delaware

 

27-3969879

PAG BEDFORD P1, LLC

 

Delaware

 

27-3969933

PAG BEDFORD PROPERTIES, LLC

 

Delaware

 

n/a

PAG CHANDLER JLR, LLC

 

Delaware

 

n/a

PAG CHANTILLY M1, LLC

 

Delaware

 

26-1377251

PAG CLOVIS T1, INC.

 

Delaware

 

26-1857570

PAG CONNECTICUT LR1, LLC

 

Delaware

 

47-2218165

PAG CYCLES MI, LLC

 

Delaware

 

46-3817133

PAG DAVIE P1, LLC

 

Delaware

 

46-3687094

 

5



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

PAG DISTRIBUTOR S1, LLC

 

Delaware

 

87-0766681

PAG EAST, LLC

 

Delaware

 

35-2036025

PAG EDISON B1, LLC

 

Delaware

 

46-2906028

PAG GOODYEAR F1, LLC

 

Delaware

 

86-1024935

PAG GREENWICH B1, LLC

 

Delaware

 

46-4359670

PAG GREENWICH HOLDINGS, LLC

 

Delaware

 

46-4033557

PAG INTERNATIONAL SERVICES, LLC

 

Delaware

 

46-4042748

PAG INVESTMENTS, LLC

 

Delaware

 

27-5082711

PAG MADISON L1, LLC

 

Delaware

 

46-0992715

PAG MADISON T1, LLC

 

Delaware

 

46-0983205

PAG MARIN M1, INC.

 

Delaware

 

27-4171554

PAG MCALLEN H1, LLC

 

Delaware

 

46-3643632

PAG MCALLEN T1, LLC

 

Delaware

 

46-3655017

PAG MENTOR A1, INC.

 

Ohio

 

34-1403202

PAG MICHIGAN HOLDINGS, LLC

 

Delaware

 

30-0193048

PAG NEW JERSEY A1, LLC

 

Delaware

 

47-5025018

PAG NEW JERSEY CS, LLC

 

Delaware

 

81-2315006

PAG NEW JERSEY JL1, LLC

 

Delaware

 

47-5068848

PAG NEW JERSEY JL2, LLC

 

Delaware

 

81-4966517

PAG NEW JERSEY JL3, LLC

 

Delaware

 

n/a

PAG NEW JERSEY P1, LLC

 

Delaware

 

47-5038322

PAG NORTH SCOTTSDALE BE, LLC

 

Delaware

 

26-1363608

 

6



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

PAG NORTH SCOTTSDALE M1, LLC

 

Delaware

 

n/a

PAG NORTHERN CALIFORNIA MANAGEMENT, INC.

 

Delaware

 

27-1068131

PAG ONTARIO B1, INC.

 

Delaware

 

46-0738871

PAG ORANGE COUNTY L1, INC.

 

Delaware

 

47-4863566

PAG ORANGE COUNTY MANAGEMENT COMPANY, INC.

 

Delaware

 

45-3981423

PAG ORANGE COUNTY RR1, INC.

 

Delaware

 

45-4896142

PAG ORANGE COUNTY S1, INC.

 

Delaware

 

47-0957524

PAG ORLANDO GENERAL, LLC

 

Delaware

 

26-1207380

PAG ORLANDO LIMITED, LLC

 

Delaware

 

26-1206643

PAG ORLANDO PARTNERSHIP, LTD.

 

Florida

 

26-1340023

PAG PENNSYLVANIA CS, LLC

 

Delaware

 

81-2338272

PAG ROSWELL B1, LLC

 

Delaware

 

81-4497213

PAG SAN FRANCISCO N1, INC.

 

Delaware

 

27-3979807

PAG SANTA ANA AVW, INC.

 

Delaware

 

27-1339782

PAG SANTA ANA B1, INC.

 

Delaware

 

45-2267865

PAG SURPRISE T1, LLC

 

Delaware

 

46-2042352

PAG TEMPE M1, LLC

 

Delaware

 

26-1377292

PAG TEXAS MANAGEMENT COMPANY, LLC

 

Delaware

 

45-3981193

PAG TURNERSVILLE AU, LLC

 

Delaware

 

26-4426061

PAG WASHINGTON A1, LLC

 

Delaware

 

81-2292613

PAG WEST ACQUISITION 8, INC.

 

Delaware

 

n/a

PAG WEST ACQUISITION 9, INC.

 

Delaware

 

n/a

 

7



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

PAG WEST BAY MIT, LLC

 

Delaware

 

27-3042965

PAG WEST, LLC

 

Delaware

 

13-3914611

PALM AUTO PLAZA, LLC

 

Delaware

 

65-1272503

PEACHTREE NISSAN, INC.

 

Georgia

 

58-1273321

PENSKE CAR RENTAL (DT) MEMPHIS, LLC

 

Delaware

 

32-0442689

PENSKE CAR RENTAL HOLDINGS, LLC

 

Delaware

 

46-0788554

PENSKE CAR RENTAL INDIANA, LLC

 

Delaware

 

80-0877574

PENSKE CAR RENTAL MEMPHIS, LLC

 

Delaware

 

35-2452611

PENSKE COMMERCIAL VEHICLES US, LLC

 

Delaware

 

46-2758677

PETER PAN MOTORS, INC.

 

California

 

94-1747384

PMRC, LLC

 

Delaware

 

22-3881752

RELENTLESS PURSUIT ENTERPRISES, INC.

 

California

 

93-1008771

SA AUTOMOTIVE, LTD.

 

Arizona

 

86-0583813

SAU AUTOMOTIVE, LTD.

 

Arizona

 

86-0839423

SCOTTSDALE 101 MANAGEMENT, LLC

 

Delaware

 

26-1363820

SCOTTSDALE FERRARI, LLC

 

Arizona

 

86-0981831

SCOTTSDALE MANAGEMENT GROUP, LTD.

 

Arizona

 

86-0573438

SCOTTSDALE PAINT & BODY, LLC

 

Delaware

 

26-1363898

SDG AUTOMOTIVE INVESTMENTS, LLC

 

Ohio

 

20-1680626

SIGMA MOTORS INC.

 

Arizona

 

86-1047752

SINGLE SOURCE TRUCK PARTS, LLC

 

Delaware

 

n/a

SK MOTORS, LLC

 

Delaware

 

32-0212884

 

8



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

SL AUTOMOTIVE, LLC

 

Delaware

 

38-3763696

SOMERSET MOTORS PARTNERSHIP

 

New Jersey

 

22-3186283

SOMERSET MOTORS, INC.

 

New Jersey

 

22-2986160

SUN MOTORS, LLC

 

Delaware

 

30-0438071

TAMBURRO ENTERPRISES, INC.

 

Nevada

 

88-0485938

THE AROUND THE CLOCK FREIGHTLINER GROUP, LLC

 

Oklahoma

 

73-1199515

UAG ARKANSAS FLM, LLC

 

Delaware

 

87-0766675

UAG ATLANTA H1, LLC

 

Delaware

 

30-0282545

UAG ATLANTA IV MOTORS, INC.

 

Georgia

 

58-1092076

UAG CAPITOL, INC.

 

Delaware

 

76-0759095

UAG CAROLINA, INC.

 

Delaware

 

13-3959601

UAG CENTRAL NJ, LLC

 

Delaware

 

90-0131625

UAG CENTRAL REGION MANAGEMENT, LLC

 

Indiana

 

38-3537233

UAG CHANTILLY AU, LLC

 

Delaware

 

87-0766680

UAG CHCC, INC.

 

New Jersey

 

22-2990922

UAG CHEVROLET, INC.

 

New Jersey

 

22-2762327

UAG CITRUS MOTORS, LLC

 

Delaware

 

59-3525335

UAG CLASSIC, INC.

 

Delaware

 

13-3987807

UAG CLOVIS, INC.

 

Delaware

 

76-0759096

UAG CONNECTICUT, LLC

 

Delaware

 

06-1589742

UAG DULUTH, INC.

 

Texas

 

58-1786146

UAG EAST, LLC

 

Delaware

 

13-3944970

 

9



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

UAG ESCONDIDO A1, INC.

 

Delaware

 

20-3697398

UAG ESCONDIDO H1, INC.

 

Delaware

 

20-3697348

UAG ESCONDIDO M1, INC.

 

Delaware

 

20-3697423

UAG FAYETTEVILLE I, LLC

 

Delaware

 

71-0858576

UAG FAYETTEVILLE II, LLC

 

Delaware

 

71-0858577

UAG FAYETTEVILLE III, LLC

 

Delaware

 

71-0858578

UAG FINANCE COMPANY, INC.

 

Delaware

 

13-3953915

UAG GRACELAND II, INC.

 

Delaware

 

13-3991339

UAG HOUSTON ACQUISITION, LTD.

 

Texas

 

38-3542915

UAG HUDSON CJD, LLC

 

Delaware

 

87-0766678

UAG HUDSON, INC.

 

New Jersey

 

22-1919268

UAG INTERNATIONAL HOLDINGS, INC.

 

Delaware

 

51-0393682

UAG KISSIMMEE MOTORS, LLC

 

Delaware

 

58-2361341

UAG LANDERS SPRINGDALE, LLC

 

Delaware

 

71-0846659

UAG LOS GATOS, INC.

 

Delaware

 

76-0759098

UAG MARIN, INC.

 

Delaware

 

76-0759100

UAG MEMPHIS II, INC.

 

Delaware

 

62-1722683

UAG MEMPHIS IV, INC.

 

Delaware

 

62-1722679

UAG MEMPHIS MANAGEMENT, INC.

 

Delaware

 

62-1722677

UAG MENTOR ACQUISITION, LLC

 

Delaware

 

38-3553602

UAG MICHIGAN CADILLAC, LLC

 

Delaware

 

38-3543705

UAG MICHIGAN H1, LLC

 

Delaware

 

42-1539792

 

10



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

UAG MICHIGAN PONTIAC-GMC, LLC

 

Delaware

 

38-3543709

UAG MICHIGAN T1, LLC

 

Delaware

 

38-3543711

UAG MICHIGAN TMV, LLC

 

Delaware

 

38-3544903

UAG MINNEAPOLIS B1, LLC

 

Delaware

 

76-0819658

UAG NANUET II, LLC

 

Delaware

 

22-3784978

UAG NORTHEAST, LLC

 

Delaware

 

13-3914694

UAG REALTY, LLC

 

Delaware

 

38-3543708

UAG ROYAL PALM M1, LLC

 

Delaware

 

06-1774003

UAG ROYAL PALM, LLC

 

Delaware

 

80-0072974

UAG SAN DIEGO A1, INC.

 

Delaware

 

20-3697335

UAG SAN DIEGO AU, INC.

 

Delaware

 

20-3955972

UAG SAN DIEGO H1, INC.

 

Delaware

 

20-3697304

UAG SAN DIEGO MANAGEMENT, INC.

 

Delaware

 

20-3955897

UAG STEVENS CREEK II, INC.

 

Delaware

 

47-0957526

UAG TEXAS II, INC.

 

Delaware

 

13-3933083

UAG TEXAS, LLC

 

Delaware

 

13-3933080

UAG TULSA HOLDINGS, LLC

 

Delaware

 

51-0410923

UAG TURNERSVILLE REALTY, LLC

 

Delaware

 

38-3543708

UAG VK, LLC

 

Delaware

 

38-3590846

UAG WEST BAY AM, LLC

 

Delaware

 

61-1442389

UAG WEST BAY FM, LLC

 

Delaware

 

86-1088680

UAG WEST BAY IA, LLC

 

Delaware

 

30-0150593

 

11



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

UAG WEST BAY IAU, LLC

 

Delaware

 

61-1442390

UAG WEST BAY IB, LLC

 

Delaware

 

35-2196049

UAG WEST BAY II, LLC

 

Delaware

 

38-3672787

UAG WEST BAY IL, LLC

 

Delaware

 

30-0150590

UAG WEST BAY IM, LLC

 

Delaware

 

37-1458215

UAG WEST BAY IN, LLC

 

Delaware

 

04-3805793

UAG WEST BAY IP, LLC

 

Delaware

 

32-3360132

UAG WEST BAY IV, LLC

 

Delaware

 

32-0060125

UAG WEST BAY IW, LLC

 

Delaware

 

36-4521984

UAG YOUNG II, INC.

 

Delaware

 

13-3985679

UAG-CARIBBEAN, INC.

 

Delaware

 

13-3980142

UNITED AUTO LICENSING, LLC

 

Delaware

 

38-3556189

UNITED AUTO SCOTTSDALE PROPERTY HOLDINGS, LLC

 

Delaware

 

86-1123497

UNITED AUTOCARE PRODUCTS, LLC

 

Delaware

 

13-3922210

UNITED NISSAN, INC.

 

Georgia

 

58-2038392

UNITED NISSAN, INC.

 

Tennessee

 

62-0790848

UNITED RANCH AUTOMOTIVE, LLC

 

Delaware

 

86-1008720

UNITEDAUTO DODGE OF SHREVEPORT, INC.

 

Delaware

 

72-1393145

UNITEDAUTO FIFTH FUNDING, INC.

 

Delaware

 

16-1549850

UNITEDAUTO FINANCE, INC.

 

Delaware

 

16-1456003

UNITEDAUTO FOURTH FUNDING INC.

 

Delaware

 

16-1543345

WEST PALM AUTO MALL, INC.

 

Florida

 

65-0050208

 

12



 

Exact Name of Registrant as Specified in its Charter

 

State or Other
Jurisdiction of
Incorporation or
Organization

 

I.R.S. Employer
Identification
Number

WEST PALM NISSAN, LLC

 

Delaware

 

06-1773996

WESTBURY SUPERSTORE, LTD.

 

New York

 

11-2983989

WTA MOTORS, LTD.

 

Texas

 

33-1011102

YOUNG MANAGEMENT GROUP, INC.

 

Indiana

 

35-1897920

 

2555 Telegraph Road
Bloomfield Hills, Michigan

(Address of principal executive offices)

 

48302
(Zip code)

 


 

Subordinated Debt Securities
and Subsidiary Guarantees of Subordinated Debt Securities

(Title of the indenture securities)

 

 

 

13



 

1.              General information.  Furnish the following information as to the trustee:

 

(a)                                  Name and address of each examining or supervising authority to which it is subject.

 

Name

 

Address

Comptroller of the Currency United States Department of the Treasury

 

Washington, DC 20219

 

 

 

Federal Reserve Bank

 

San Francisco, CA 94105

 

 

 

Federal Deposit Insurance Corporation

 

Washington, DC 20429

 

(b)                                  Whether it is authorized to exercise corporate trust powers.

 

Yes.

 

2.                                       Affiliations with Obligor.

 

If the obligor is an affiliate of the trustee, describe each such affiliation.

 

None.

 

16.                                List of Exhibits.

 

Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the “Act”) and 17 C.F.R. 229.10(d).

 

1.                                       A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).

 

2.                                       A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).

 

3.                                       A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).

 

14



 

4.                                       A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).

 

6.                                       The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).

 

7.                                       A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.

 

15



 

SIGNATURE

 

Pursuant to the requirements of the Act, the Trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago, and State of Illinois, on the 22 nd  day of February, 2017.

 

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

 

 

 

By:

/s/ Lawrence M. Kusch

 

 

Name:

Lawrence M. Kusch

 

 

Title:

Vice President

 

16



 

EXHIBIT 7

 

Consolidated Report of Condition of

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

of 400 South Hope Street, Suite 500, Los Angeles, CA 90071

 

At the close of business December 31, 2016, published in accordance with Federal regulatory authority instructions.

 

 

 

 

 

Dollar amounts

 

 

 

 

 

in thousands

 

ASSETS

 

 

 

 

 

Cash and balances due from depository institutions:

 

 

 

 

 

Noninterest-bearing balances and currency and coin

 

 

 

1,645

 

Interest-bearing balances

 

 

 

278,360

 

Securities:

 

 

 

 

 

Held-to-maturity securities

 

 

 

0

 

Available-for-sale securities

 

 

 

719,638

 

Federal funds sold and securities purchased under agreements to resell:

 

 

 

 

 

Federal funds sold

 

 

 

0

 

Securities purchased under agreements to resell

 

 

 

0

 

Loans and lease financing receivables:

 

 

 

 

 

Loans and leases held for sale

 

 

 

0

 

Loans and leases, net of unearned income

 

0

 

 

 

LESS: Allowance for loan and lease losses

 

0

 

 

 

Loans and leases, net of unearned income and allowance

 

 

 

0

 

Trading assets

 

 

 

0

 

Premises and fixed assets (including capitalized leases)

 

 

 

11,405

 

Other real estate owned

 

 

 

0

 

Investments in unconsolidated subsidiaries and associated companies 

 

 

 

0

 

Direct and indirect investments in real estate ventures 

 

 

 

0

 

Intangible assets:

 

 

 

 

 

Goodwill

 

 

 

856,313

 

Other intangible assets

 

 

 

50,819

 

Other assets

 

 

 

187,830

 

Total assets

 

 

 

$

2,106,010

 

 



 

LIABILITIES

 

 

 

 

 

Deposits:

 

 

 

 

 

In domestic offices

 

 

 

616

 

Noninterest-bearing

 

616

 

 

 

Interest-bearing

 

0

 

 

 

Not applicable

 

 

 

 

 

Federal funds purchased and securities sold under agreements to repurchase:

 

 

 

 

 

Federal funds purchased

 

 

 

0

 

Securities sold under agreements to repurchase

 

 

 

0

 

Trading liabilities

 

 

 

0

 

Other borrowed money:

 

 

 

 

 

(includes mortgage indebtedness and obligations under capitalized leases)

 

 

 

0

 

Not applicable

 

 

 

 

 

Not applicable

 

 

 

 

 

Subordinated notes and debentures

 

 

 

0

 

Other liabilities

 

 

 

292,769

 

Total liabilities

 

 

 

293,385

 

Not applicable

 

 

 

 

 

 

 

 

 

 

 

EQUITY CAPITAL

 

 

 

 

 

 

 

 

 

 

 

Perpetual preferred stock and related surplus

 

 

 

0

 

Common stock

 

 

 

1,000

 

Surplus (exclude all surplus related to preferred stock)

 

 

 

1,122,729

 

Not available

 

 

 

 

 

Retained earnings

 

 

 

690,002

 

Accumulated other comprehensive income

 

 

 

-1,106

 

Other equity capital components

 

 

 

0

 

Not available

 

 

 

 

 

Total bank equity capital

 

 

 

1,812,625

 

Noncontrolling (minority) interests in consolidated subsidiaries

 

 

 

0

 

Total equity capital

 

 

 

1,812,625

 

Total liabilities and equity capital

 

 

 

2,106,010

 

 



 

I, Matthew J. McNulty, CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.

 

Matthew J. McNulty            )

CFO

 

We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.

 

Antonio I. Portuondo, President

)

 

William D. Lindelof, Director

)

Directors (Trustees)

Alphonse J. Briand, Director

)