Exhibit 4.1.5
FIFTH SUPPLEMENTAL INDENTURE
Fifth Supplemental Indenture (this "Fifth Supplemental Indenture"), dated
as of June 7, 1999 among Superior Truck & Auto Supply, Inc. (the "Guarantor"),
the Company (as defined in the Indenture referred to herein), any other
Guarantors (as defined in the Indenture referred to herein) party to the
Indenture referred to herein and U.S. Trust Company, National Association, as
trustee under the indenture referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture, dated as of July 31, 1998, as supplemented by the First
Supplemental Indenture dated September 30, 1998; the Second Supplemental
Indenture dated December 21, 1998; the Third Supplemental Indenture dated
January 14, 1999; and the Fourth Supplemental Indenture dated April 20, 1999 (as
supplemented, the "Indenture"), providing for the issuance of 12% Senior
Subordinated Notes due 2005 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guarantors shall execute and deliver to the Trustee a supplemental indenture
pursuant to which subsequent Guarantors shall unconditionally guarantee all of
the Company's Obligations under the Notes and the Indenture on the terms and
conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section of the Indenture, the Trustee is authorized to
execute and deliver this Fifth Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. Each of the Guarantors irrevocably and
unconditionally guarantees the Guarantee Obligations, which include (i) the due
and punctual payment of the principal of, premium, if any, and interest and
Liquidated Damages, if any, on the Notes, whether at stated maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal and premium, if any, and (to the extent permitted by law)
interest on any interest and Liquidated Damages, if any, on the Notes, and the
due and punctual performance of all other obligations of the Company, to the
Holders or the Trustee all in accordance with the terms set forth in Article XI
of the Indenture, and (ii) in case of any extension of time of payment or
renewal of any Notes or any such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
XI of the Indenture and reference is hereby made to such Indenture for the
precise terms of this Guarantee.
No stockholder, employee, officer, director or incorporator, as such, past,
present or future of the Guarantors shall have any liability under this
Guarantee by reason of his or its status as such stockholder, employee, officer,
director or incorporator.
This is a continuing Guarantee and shall remain in full force and effect
and shall be binding upon the Guarantors and their respective successors and
assigns until full and final payment of all of the Company's obligations under
the Notes and Indenture or until released in accordance with the Indenture and
shall inure to the benefit of the successors and assigns of the Trustee and the
Holders, and, in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof. This is a Guarantee of payment and
not of collectibility.
The Obligations of the Guarantors under its Guarantee shall be limited to
the extent necessary to insure that it does not constitute a fraudulent
conveyance under applicable law.
THE TERMS OF ARTICLE XI OF THE INDENTURE ARE INCORPORATED HEREIN BY
REFERENCE.
3. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
4. Counterparts. The parties may sign any number of copies of this Fifth
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
5. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
2
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
HDA PARTS SYSTEM, INC., an Alabama corporation
By: /s/ John J. Greisch
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Name: John J. Greisch
Title: President
CITY TRUCK AND TRAILER PARTS OF ALABAMA,
INC., an Alabama corporation
By: /s/ John J. Greisch
--------------------------------------------
Name: John J. Greisch
Title: Vice President
CITY TRUCK AND TRAILER PARTS OF ALABAMA,
L.L.C., an Alabama limited liability company
HDA PARTS SYSTEM, INC., as sole member
By: /s/ John J. Greisch
--------------------------------------------
Name: John J. Greisch
Title: President
CITY TRUCK AND TRAILER PARTS OF TENNESSEE,
INC., a Tennessee corporation
By: /s/ John J. Greisch
--------------------------------------------
Name: John J. Greisch
Title: Vice President
CITY FRICTION, INC., an Alabama corporation
By: /s/ John J. Greisch
--------------------------------------------
Name: John J. Greisch
Title: Vice President
TRUCK & TRAILER PARTS, INC., a Georgia
corporation, as Guarantor
By: /s/ John J. Greisch
---------------------------------------
Name: John J. Greisch
Title: Vice President
CITY TRUCK HOLDINGS, INC;. a Delaware
corporation as Guarantor
By: /s/ John J. Greisch
----------------------------------------
Name: John J. Greisch
Title: President
TRUCKPARTS, INC., a Connecticut corporation,
as Guarantor
/s/ John J. Greisch
By: ----------------------------------------
Name: John J. Greisch
Title: Vice President
ASSOCIATED BRAKE SUPPLY, INC., a California
corporation, as Guarantor
/s/ John J. Greisch
By: ----------------------------------------
Name: John J. Greisch
Title: Vice President
ASSOCIATED TRUCK CENTER INC., a California
corporation, as Guarantor
/s/ John J. Greisch
By: ----------------------------------------
Name: John J. Greisch
Title: Vice President
ASSOCIATED TRUCK PARTS OF NEVADA, INC., a
Nevada corporation, as Guarantor
By: /s/ John J. Greisch
---------------------------------------
Name: John J. Greisch
Title: Vice President
ONYX DISTRIBUTION, INC., a California
corporation, as Guarantor
By: /s/ John J. Greisch
---------------------------------------
Name: John J. Greisch
Title: Vice President
FREEWAY TRUCK PARTS OF WASHINGTON, INC.,
a Washington corporation, as Guarantor
By: /s/ John J. Greisch
---------------------------------------
Name: John J. Greisch
Title: Vice President
TISCO, INC., a California corporation,
as Guarantor
By: /s/ John J. Greisch
---------------------------------------
Name: John J. Greisch
Title: Vice President
TISCO OF REDDING, INC., a California
corporation, as Guarantor
By: /s/ John J. Greisch
---------------------------------------
Name: John J. Greisch
Title: Vice President
ACTIVE GEAR, L.L.C., a Washington limited liability
company, as Guarantor
HDA PARTS SYSTEM, INC., as sole member
By: /s/ John J. Greisch
-----------------------------------------------
Name: John J. Greisch
Title: President and Chief Executive Officer
U.S. TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: _______________________________________________
Name: Sandee Parks
Title: Vice President
SUPERIOR TRUCK & AUTO SUPPLY, INC.,
a Massachusetts corporation, as Guarantor
By: /s/ John J. Greisch
-----------------------------------------------
Name: John J. Greisch
Title: Vice President
ACTIVE GEAR, L.L.C., a Washington limited liability
company, as Guarantor
HDA PARTS SYSTEM, INC., as sole member
By: _______________________________________________
Name: John J. Greisch
Title: President and Chief Executive Officer
U.S. TRUST COMPANY NATIONAL ASSOCIATION,
as Trustee
By: /s/ Sandee Parks
-----------------------------------------------
Name: Sandee Parks
Title: Vice President
SUPERIOR TRUCK & AUTO SUPPLY, INC.,
a Massachusetts corporation, as Guarantor
By: _______________________________________________
Name: John J. Greisch
Title: Vice President