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Exhibit
10.5
THIRD SUPPLEMENTAL
INDENTURE
This THIRD SUPPLEMENTAL
INDENTURE (the “ Third Supplemental Indenture
”) is dated as of July 11, 2008, between O’Reilly
Automotive, Inc., a Missouri corporation (“
O’Reilly ”), CSK Auto, Inc., an Arizona
corporation (the “ Company ”), the Guarantors
named herein and The Bank of New York Mellon Trust Company, N.A.,
as trustee (the “ Trustee ”).
WHEREAS, the Company, CSK
Auto Corporation, a Delaware Corporation (“ CSK
”), and the Trustee are parties to an Indenture, dated as of
December 19, 2005, as amended and supplemented by the First
Supplemental Indenture (the “ First Supplemental
Indenture ”) dated as of December 30, 2005 and the
Second Supplemental Indenture, dated as of July 27, 2006 (the
“ Second Supplemental Indenture ”) (as amended
and supplemented by the First Supplemental Indenture and the Second
Supplemental Indenture, the “ Indenture ”),
pursuant to which the Company issued its 45/8% (as increased to 6
3 /
4 % by
the Second Supplemental Indenture) Exchangeable Senior Notes due
2025 (the “ Notes ”);
WHEREAS, on April 1, 2008, CSK
entered into an Agreement and Plan of Merger by and among
O’Reilly and OC Acquisition Company, a Delaware corporation
and an indirect wholly-owned Subsidiary of O’Reilly (“
Merger Sub ”) (the “ Merger Agreement
”), pursuant to which, among other things, Merger Sub will
merge with and into CSK (the “ Merger
”);
WHEREAS, Section 11.01 of the
Indenture provides that CSK shall not merge or enter into certain
other transactions unless certain requirements specified therein
are satisfied;
WHEREAS, Section 14.06 provides
that if a merger or certain other transactions involving CSK occur,
as a result of which holders of Common Stock of CSK shall be
entitled to receive cash, securities or other property with respect
to or in exchange for such Common Stock, then CSK and the Company
shall enter into a supplemental indenture providing that each Note
shall be exchangeable into the kind and amount of cash, securities
or other property receivable upon such transaction by holders of
Common Stock of CSK;
WHEREAS, Section 10.01(b) of the
Indenture provides that the Company, CSK, the Subsidiary Guarantors
and the Trustee may enter into indentures supplemental thereto to
modify the Indenture in accordance with
Section 14.06;
WHEREAS, O’Reilly wishes to become
a guarantor (in such capacity, the “ Guarantor
”), on a subordinated basis, of the obligations of the
Company under the Indenture and the Notes and enter into an
indenture supplemental to the Indenture providing for such
guarantee (the “Subordinated Guarantee”);
WHEREAS, Section 10.01(d) of the
Indenture provides that the Company, CSK, the Subsidiary Guarantors
and the Trustee may enter into indentures supplemental thereto to
add guarantees or guarantors with respect to the Notes;
WHEREAS, the execution and delivery of
this instrument has been duly authorized and all conditions and
requirements necessary to make this instrument a valid and binding
agreement have been duly performed and complied with;
and
WHEREAS, this Third Supplemental
Indenture is being executed and delivered concurrently with the
effectiveness of the Merger.
NOW, THEREFORE, in consideration of the
premises set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders, as follows:
ARTICLE 1
EFFECT OF
MERGER
Section 1.01 In
accordance with Section 14.06 of the Indenture, at and after
the effective time of the Merger, each Note shall be exchangeable
into the kind and amount of cash, securities or other property (and
in the same proportion) receivable upon the Merger by a holder of a
number of shares of Common Stock issuable upon exchange of the
Notes immediately prior to the Merger, and as further provided
pursuant to Section 14.06.
Section 1.02 At
and after the effective time of the Merger, Section 14.04 of
the Indenture shall be amended by deleting the text of such Section
in its entirety and replacing it with the following
text:
Section 14.04.
Exchange Rate . Each $1,000 Principal Amount of the Notes
shall be exchangeable into 0.4285 shares of common stock of
O’Reilly and $1.00 in cash (herein called the “Exchange
Rate”), subject to adjustment as provided in this Article
14.
ARTICLE 2
SUBORDINATED
GUARANTEE
Section 2.01
Guarantee .
Subject to the provisions of
this Article 2, O’Reilly, as Guarantor, hereby
unconditionally guarantees to each holder of a Note that the
principal of and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or
otherwise, and all other obligations of the Company to the holders
of the Notes and the Trustee hereunder, thereunder and under the
Indenture will be promptly paid in full or performed, as the case
may be, all in accordance with the terms hereof and thereof; and
failing payment when due of any amount so guaranteed or any
performance so guaranteed, as the case may be, for whatever reason,
the Guarantor will be obligated to pay or perform the same, as the
case may be, immediately. The Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The Guarantor hereby confirms
that it is its intention that this guarantee of the Guarantor not
constitute a fraudulent transfer or conveyance for purposes of
applicable bankruptcy laws, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar federal or state
law to the extent applicable to this Subordinated Guarantee. To
effectuate the foregoing intention, the obligations of the
Guarantor will be limited to the maximum amount that will, after
giving effect to such maximum amount and all other contingent and
fixed liabilities of the Guarantor that are relevant under such
laws, result in the obligations of the Guarantor under this
Subordinated Guarantee not constituting a fraudulent transfer or
conveyance.
2
Section 2.02
Subordination of Guarantee . Payments under this
Subordinated Guarantee shall be subordinated to the prior payment
in full of all Guarantor Other Indebtedness (defined below) as
follows:
No direct or indirect payment
by or on behalf of O’Reilly under this Subordinated Guarantee
with respect to any of the obligations on the Notes (a “
Note Payment ”) will be made, and no action against
the Guarantor may be brought, if, at the time of such payment or
the bringing of such action, there exists a default in the payment
in cash of all or any portion of the principal of, or interest, if
any, on any Guarantor Other Indebtedness when due, or any Guarantor
Other Indebtedness has been accelerated, and such default shall not
have been cured or waived in writing or the benefits of this
sentence waived in writing by or on behalf of the holders of such
Guarantor Other Indebtedness. In addition, during the continuance
of any non-payment event of default with respect to any Guarantor
Other Indebtedness, and upon receipt by a Responsible Officer of
the Trustee at the Corporate Trust Office of the Trustee of written
notice, referring to the Indenture and entitled “Payment
Blockage Notice” (a “Payment Blockage Notice”),
from the holder or holders of any Guarantor Other Indebtedness,
then, unless and until such event of default has been cured or
waived in writing or has ceased to exist or any Guarantor Other
Indebtedness has been discharged or repaid in full in cash (or such
payment shall be duly provided for in a manner satisfactory to
holders of any Guarantor Other Indebtedness) or otherwise to the
extent holders of any Guarantor Other Indebtedness in their sole
discretion accept satisfaction of amounts due by settlement in
other than cash or the benefits of these provisions have been
waived in writing by the holders of any Guarantor Other
Indebtedness, no Note Payment will be made to such holders during a
period (a “ Payment Blockage Period ”)
commencing on the date of such receipt of the Payment Blockage
Notice by a Responsible Officer of the Trustee and ending 364 days
thereafter. The Trustee shall deliver a copy of the Payment
Blockage Notice to O’Reilly as soon as reasonably practicable
after receipt thereof. In the event that, notwithstanding the
foregoing, any Note Payment shall be received by the Trustee at a
time when such payment is prohibited hereunder, such Note Payment
shall be received and held in trust for the benefit of, and shall
be paid over or delivered to, the holders of any Guarantor Other
Indebtedness, as their respective interests may appear.
Upon any payment or
distribution of assets or securities of O’Reilly of any kind
or character, whether in cash, property or securities, to the
creditors of O’Reilly upon any dissolution or winding-up or
total or partial liquidation or reorganization of O’Reilly,
whether voluntary or involuntary, or in bankruptcy, insolvency,
receivership or other similar proceedings relating to
O’Reilly, any assignment for the benefit of creditors or any
marshalling of O’Reilly’s assets and liabilities, the
holders of Guarantor Other Indebtedness shall be entitled to
receive payment in full in cash of all obligations due in respect
of such Guarantor Other Indebtedness or have provision made for
such payment in a manner acceptable to holders of Guarantor Other
Indebtedness, before the holders of the Notes
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