10-Q Exhibit 10.5
SUPPLEMENT NO. 1 dated as of June 30, 1999, to the
Indemnity, Subrogation and Contribution Agreement dated as of
April 15, 1998 as amended and restated as of November 2, 1998,
(as the same may be further amended, supplemented or otherwise
modified from time to time, the "Indemnity, Subrogation and
Contribution Agreement"), among ADVANCE STORES COMPANY,
INCORPORATED, a Virginia corporation (the "Borrower") and wholly-
owned subsidiary of ADVANCE HOLDING CORPORATION, a Virginia
corporation ("Holdings"), each Subsidiary of the Borrower listed
on Schedule I thereto (the "Guarantors"), and THE CHASE MANHATTAN
BANK, a New York banking corporation ("Chase"), as collateral
agent (the "Collateral Agent"), for the Secured Parties (as
defined in the Credit Agreement referred to below).
A. Reference is made to (a) the Credit Agreement dated as of April 15,
1998 as amended and restated as of October 19, 1998, (as further amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among the Borrower, Holdings, the lenders from time to time party thereto (the
"Lenders"), DLJ Capital Funding, Inc., as syndication agent, First Union
National Bank, as documentation agent, and Chase, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent"), Collateral Agent and
issuing bank (in such capacity, the "Issuing Bank"), and (b) the Guarantee
Agreement dated as of April 15, 1998 as amended and restated as of November 2,
1998, among the Guarantors, Holdings and the Collateral Agent (the "Guarantee
Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.12
of the Credit Agreement, each Subsidiary of Holdings which is also a Subsidiary
Loan Party that was not in existence or not such a Subsidiary on the date of the
Credit Agreement is required to enter into the Guarantee Agreement as a
Guarantor upon becoming a Subsidiary. Section 11 of the Indemnity, Subrogation
and Contribution Agreement provides that additional Subsidiaries of Holdings may
become Guarantors under the Indemnity, Subrogation and Contribution Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of Holdings (the "New Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Indemnity, Subrogation and Contribution Agreement in order
to induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 11 of the Indemnity, Subrogation and
Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as a Guarantor
thereunder. Each reference to a "Guarantor" in the Indemnity, Subrogation and
Contribution Agreement shall be deemed to include the New Guarantor. The
Indemnity, Subrogation and Contribution Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it
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and constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-
faith negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
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IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly
executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
ADVANCE TRUCKING CORPORATION, a
Virginia corporation,
by
/s/ J. O'Xxxx Xxxxxxxx
----------------------
Name: J. O'Xxxx Xxxxxxxx
Title: Secretary
Address: 0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
THE CHASE MANHATTAN BANK, as Collateral
Agent,
by
/s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
