Fifth Supplemental Indenture to 12.5% Senior Notes Due 2004 – J.B. Poindexter & Co., Inc., Subsidiary Guarantors, and U.S. Trust Company of New York

Summary

This Fifth Supplemental Indenture, dated September 29, 2000, is between J.B. Poindexter & Co., Inc., several of its subsidiaries, and United States Trust Company of New York as Trustee. The agreement adds Morgan Trailer Financial Corporation and Morgan Trailer Financial Management, L.P. as new subsidiary guarantors for the company's 12.5% Senior Notes due 2004. These new guarantors agree to be jointly and severally liable for payment of the notes, ensuring additional security for noteholders. The agreement is governed by New York law and supplements the original indenture and prior amendments.

EX-4.2.5 5 h04428exv4w2w5.txt 5TH SUPPLEMENTAL INDENTURE DATED 9/29/2000 EXHIBIT 4.2.5 J. B. POINDEXTER & CO., INC. As Issuer UNITED STATES TRUST COMPANY OF NEW YORK As Trustee THE SUBSIDIARY GUARANTORS NAMED HEREIN As Guarantors FIFTH SUPPLEMENTAL INDENTURE DATED AS OF SEPTEMBER 29, 2000 12 1/2% SENIOR NOTES DUE 2004 FIFTH SUPPLEMENTAL INDENTURE, dated as of September 29, 2000, (herein called this "Supplemental Indenture") among J.B. POINDEXTER & CO., INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal office at 1100 Louisiana Street, Suite 5400, Houston, Texas 77002, each of MORGAN TRAILER MFG. CO., a New Jersey corporation ("Morgan"), TRUCK ACCESSORIES GROUP, INC., FORMERLY KNOWN AS LEER, INC., a Delaware corporation ("TAG"), LOWY GROUP, INC., a Delaware corporation ("Lowy"), EFP CORPORATION, a Delaware corporation ("EFP"), MAGNETIC INSTRUMENTS CORP., a Delaware corporation ("MIC"), RAIDER INDUSTRIES, INC., a Saskatchewan corporation ("Raider"), KWS MANUFACTURING COMPANY, INC., a Texas corporation ("KWS"), UNIVERSAL BRIXIUS, INC., a Wisconsin corporation ("Brixius"), MORGAN TRAILER FINANCIAL CORPORATION, a Nevada corporation ("MTFC"), and MORGAN TRAILER FINANCIAL MANAGEMENT, L.P., a Texas limited partnership ("MTFMLP") and UNITED STATES TRUST COMPANY OF NEW YORK, a corporation duly organized and existing under the laws of the State of New York, United States of America, having its principal office at 114 West 47th Street, New York, New York 10036, as Trustee (herein called the "Trustee") RECITAL WHEREAS, the Company, Morgan, TAG, Lowy, EFP, MIC and the Trustee are parties to that certain Indenture, dated as of May 23, 1994 (the "Original Indenture"), governing the Company's 12 1/2% Senior Notes due 2004 (the "Securities") issued hereunder; WHEREAS, the Original Indenture was amended by the First Supplemental Indenture dated as of May 11, 1995, by the Second Supplemental Indenture dated as of June 26, 1995, by the Third Supplemental Indenture dated as of March 8, 2000, and by the Fourth Supplemental Indenture dated March 17, 2000 (the Original Indenture as so amended, the "Indenture"); WHEREAS, MTFC and MTFMLP, are Restricted Subsidiaries that, pursuant to Section 1305 of the Indenture, wish to become Subsidiary Guarantors under the Indenture by jointly and severally unconditionally guaranteeing the Securities on a senior basis; WHEREAS, Section 901(6) of the Indenture provides that, without the consent of any Holders, the Company, when authorized by a Board Resolution, the Subsidiary Guarantors, when authorized by resolutions of their respective boards of directors (certified copies of which shall be furnished to the Trustee) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental to the Indenture, in form satisfactory to the Trustee, to add new Subsidiary Guarantors pursuant to Section 1305 of the Indenture; WHEREAS, the Company and the Subsidiary Guarantors pursuant to the foregoing authority, propose in and by this Supplemental Indenture to amend and supplement the Indenture in certain respects, and requests the Trustee to enter into this Supplemental Indenture; and WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company, the Subsidiary Guarantors and the Trustee and a valid amendment of and supplement to the Indenture have been done; NOW, THEREFORE, for and in consideration of the premises, it is mutually covenanted and agreed for the equal and proportionate benefit of all Holders of the Securities: ARTICLE ONE DEFINITIONS; GUARANTEE SECTION 1.1 Definitions. All terms used in this Supplemental Indenture which are not defined in this Supplemental Indenture and which are defined in the Indenture shall have the meanings assigned to them in the Indenture. SECTION 1.2 Guaranty. Each of MTFC and MTFMLP hereby unconditionally, jointly and severally with the other Subsidiary Guarantors, guarantee to each Holder of a Security authenticated and delivered by the Trustee, and to the Trustee on behalf of such Holder, the due and punctual payment of the principal of (and premium, if any) and interest on such Security when and as the same shall become due and payable, whether at the Stated Maturity Date, by acceleration, call for redemption, purchase or otherwise, in accordance with the terms of such Security and of the Indenture, and each of MTFC and MTFMLP agrees that from and after the date hereof each of MTFC and MTFMLP shall be subject to the provisions (including the representations and warranties) of the Indenture as a Subsidiary Guarantor as fully as if each of MTFC and MTFMLP were a party to and had executed the Indenture as a Subsidiary Guarantor. ARTICLE TWO MISCELLANEOUS SECTION 2.1 Incorporation of Supplemental Indenture. All provisions of this Supplemental Indenture shall be deemed to be incorporated in, and made a part of, the Indenture, and the Indenture, as supplemented and amended by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument. SECTION 2.2 Headings. The Article and Section headings of this Supplemental Indenture are for convenience only and shall not affect the construction hereof. SECTION 2.3 Counterparts. This Supplemental Indenture 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. SECTION 2.4 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act 2 to be part of and govern this Supplemental Indenture, the latter provision shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be. SECTION 2.5 Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the Company or any Subsidiary Guarantor shall bind its respective successors and assigns, whether so expressed or not. SECTION 2.6 Separability Clause. In case any provisions in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 2.7 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, express or implied, shall give to any Person, other than the parties hereto, and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture. SECTION 2.8 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunder affixed and attested, all as of the date and year first above written. Attest: J. B. POINDEXTER & CO., INC. By: - ------------------------- ----------------------------------- Stephen Magee Executive Vice President MORGAN TRAILER MFG. CO. TRUCK ACCESSORIES GROUP, INC. EFP CORPORATION Attest: MAGNETIC INSTRUMENTS CORP. By: - ------------------------- ----------------------------------- Stephen Magee Vice President 3 Attest: LOWY GROUP, INC. By: - ------------------------- ----------------------------------- Stephen Magee President UNITED STATES TRUST COMPANY Attest: OF NEW YORK By: - ------------------------- ----------------------------------- RAIDER INDUSTRIES, INC. Attest: a Saskatchewan corporation By: - ------------------------- ----------------------------------- Stephen Magee Vice President Attest: KWS MANUFACTURING COMPANY, INC. By: - ------------------------- ----------------------------------- Stephen Magee President Attest: UNIVERSAL BRIXIUS, INC. By: - ------------------------- ----------------------------------- Stephen Magee Vice President 4 AGREED AND ACCEPTED: Attest: MORGAN TRAILER FINANCIAL CORPORATION By: - ------------------------- ----------------------------------- Jim Mitchell President Attest: MORGAN TRAILER FINANCIAL MANAGEMENT, L.P. - ------------------------ BY: MORGAN TRAILER MFG. CO., ITS GENERAL PARTNER By: ------------------------------- Stephen Magee Vice President 5 STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _____________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Executive Vice President of J. B. Poindexter & Co., Inc., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Morgan Trailer Mfg. Co., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- 6 STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Truck Accessories Group, Inc., formerly known as Leer Inc., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _____________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is President of Lowy Group, Inc., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- 7 STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of EFP Corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the ______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Magnetic Instruments Corp., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- 8 STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the ______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is President of KWS Manufacturing Company, Inc., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. -------------------------------- STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) On the _______________ day of , 2000, before me personally came ___________________________________ to me known, who, being by me duly sworn, did depose and say that [he - she] is ___________________________ United States Trust Company of New York, one of the corporations described in and which executed the foregoing instrument; that [he - she] knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that [he - she] signed his name thereto by like authority. -------------------------------- 9 STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the ______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Raider Industries Inc., one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and he signed his name thereto by like authority. -------------------------------- STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Universal Brixius, Inc. one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and he signed his name thereto by like authority. -------------------------------- 10 STATE OF TEXAS ) ) ss. COUNTY OF HARRIS ) On the _______________ day of September 2000, before me personally came Stephen Magee, to me known, who, being by me duly sworn, did depose and say that he is Vice President of Morgan Trailer Mfg. Co., a New Jersey corporation and the general partner of Morgan Trailer Financial Management, L.P., one of the legal entities described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and he signed his name thereto by like authority. -------------------------------- STATE OF OREGON ) ) ss. COUNTY OF CLACKAMAS ) On the _______________ day of September 2000, before me personally came Jim Mitchell, to me known, who, being by me duly sworn, did depose and say that he is President of Morgan Trailer Financial Management Corporation, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and he signed his name thereto by like authority. -------------------------------- 11