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UNITED STATES  
SECURITIES AND EXCHANGE COMMISSION  
Washington, D.C. 20549

 
  
FORM 8-K
 
CURRENT REPORT  
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported) April 19, 2013
 
 
 
ADVANCE AUTO PARTS, INC.
(Exact name of registrant as specified in its charter)
 
Delaware
001-16797
54-2049910
(State or other jurisdiction of incorporation or organization)
(Commission File Number)
(I.R.S. Employer Identification No.)
 
5008 Airport Road, Roanoke, Virginia
24012
(Address of Principal Executive Offices)
(Zip Code)
 
Registrant's telephone number, including area code (540) 362-4911
 
Not Applicable
(Former name, former address and former fiscal year, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 





o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 






INFORMATION TO BE INCLUDED IN THE REPORT

Item 1.01. Entry into a Material Definitive Agreement.

Advance Auto Parts, Inc., (the “Company”) entered into the Fifth Supplemental Indenture, dated as of April 19, 2013 to the Indenture, dated as of April 29, 2010, among the Company, Advance Stores Company, Incorporated, the Company's wholly owned subsidiary (“Advance Stores”), certain of Advance Stores' domestic subsidiaries, and Wells Fargo Bank, National Association, as trustee (the “Trustee”) (the “Fifth Supplemental Indenture”), to acknowledge the addition of one of Advance Stores' domestic subsidiaries as a Subsidiary Guarantor under the Indenture related to the Company's 5.75% senior unsecured notes that were issued in April 2010 and 4.50% senior unsecured notes that were issued in January 2012. The above description of the Fifth Supplemental Indenture is not complete and is qualified in its entirety by the full text of the Fifth Supplemental Indenture, which is filed as Exhibit 4.6 to this Current Report on Form 8-K.

On May 27, 2011, the Company, as Guarantor, entered into a $750 million unsecured five-year revolving credit facility (the “2011 Credit Agreement”) with Advance Stores, as Borrower, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent. The 2011 Credit Agreement is guaranteed by the Company and certain domestic subsidiaries of Advance Stores, including its Material Subsidiaries (as defined in the 2011 Credit Agreement) pursuant to the Guarantee Agreement (the "Guarantee Agreement") among the Company, Advance Stores, and its Material Subsidiaries in favor of the Agent for the lenders under the 2011 Credit Agreement. Pursuant to the Supplement No. 2 to Guarantee Agreement, dated as of April 19, 2013 (the “Supplement”), one domestic subsidiary of Advance Stores has been added as a guarantor under the Guarantee Agreement. The above description of the Supplement is not complete and is qualified in its entirety by the full text of the Supplement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.
 
Exhibit Number
 
 
 
 
 
4.1 (1)
Indenture, dated as of April 29, 2010, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.2 (1)
First Supplemental Indenture, dated as of April 29, 2010, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.3 (2)
Second Supplemental Indenture, dated as of May 27, 2011, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.4 (3)
Third Supplemental Indenture, dated as of January 17, 2012, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.5 (4)
Fourth Supplemental Indenture, dated as of December 21, 2012, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.6
Fifth Supplemental Indenture, dated as of April 19, 2013, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
5.1
Opinion of Bingham McCutchen LLP.
 
 
 
 
10.1 (5)
Supplement No. 1 to Guarantee Agreement.
 
 
 
 
10.2
Supplement No. 2 to Guarantee Agreement.
______________________________
(1) Incorporated by reference from the same numbered exhibit to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 29, 2010.
(2) Incorporated by reference from Exhibit 10.45 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 3, 2011.
(3) Incorporated by reference from Exhibit 4.4 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 17, 2012.
(4) Incorporated by reference from Exhibit 4.5 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 21, 2012.
(5) Incorporated by reference from Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 21, 2012.





SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
ADVANCE AUTO PARTS, INC.
 
 
(Registrant)
 
 
 
Date: April 19, 2013
 
/s/ Michael A. Norona
 
 
(Signature)*
 
 
Michael A. Norona
 
 
Executive Vice President and Chief Financial Officer
* Print name and title of the signing officer under his signature.







EXHIBIT INDEX

 
Exhibit Number
 
 
 
 
 
4.1 (1)
Indenture, dated as of April 29, 2010, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.2 (1)
First Supplemental Indenture, dated as of April 29, 2010, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.3 (2)
Second Supplemental Indenture, dated as of May 27, 2011, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.4 (3)
Third Supplemental Indenture, dated as of January 17, 2012, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.5 (4)
Fourth Supplemental Indenture, dated as of December 21, 2012, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
4.6
Fifth Supplemental Indenture, dated as of April 19, 2013, among Advance Auto Parts, Inc., each of the Subsidiary Guarantors from time to time party thereto and Wells Fargo Bank, National Association, as Trustee.
 
 
 
 
5.1
Opinion of Bingham McCutchen LLP.
 
 
 
 
10.1 (5)
Supplement No. 1 to Guarantee Agreement.
 
 
 
 
10.2
Supplement No. 2 to Guarantee Agreement.
______________________________
(1) Incorporated by reference from the same numbered exhibit to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on April 29, 2010.
(2) Incorporated by reference from Exhibit 10.45 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 3, 2011.
(3) Incorporated by reference from Exhibit 4.4 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on January 17, 2012.
(4) Incorporated by reference from Exhibit 4.5 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 21, 2012.
(5) Incorporated by reference from Exhibit 10.1 to the Company's Current Report on Form 8-K filed with the Securities and Exchange Commission on December 21, 2012.






Exhibit 4.6

Execution Version
 


ADVANCE AUTO PARTS, INC.
____________________________________

FIFTH SUPPLEMENTAL INDENTURE

Dated as of April 19, 2013
____________________________________

to the

INDENTURE

Dated as of April 29, 2010

among

ADVANCE AUTO PARTS, INC.

as Issuer,

EACH OF THE SUBSIDIARY GUARANTORS FROM

TIME TO TIME PARTY HERETO

and

WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Trustee



 







 




FIFTH SUPPLEMENTAL INDENTURE, dated as of April 19, 2013 (this “ Fifth Supplemental Indenture ”), to the Indenture, dated as of April 29, 2010 (the “ Original Indenture ”), among ADVANCE AUTO PARTS, INC., a Delaware corporation (the “ Company ”), THE SUBSIDIARY GUARANTORS listed on the signature page hereto and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”).
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have heretofore executed and delivered the Original Indenture to provide for the issuance from time to time of Securities (as defined in the Original Indenture) of the Company, to be issued in one or more Series;
WHEREAS, pursuant to the Original Indenture, the Company, the Subsidiary Guarantors and the Trustee have heretofore executed and delivered a (i) first supplemental Indenture, dated as of April 29, 2010, to provide for a Series of Securities (the “ First Supplemental Indenture ”), (ii) second supplemental indenture, dated as of May 27, 2011, to provide for the release of certain Subsidiary Guarantors (the “ Second Supplemental Indenture ”), (iii) third supplemental indenture, dated as of January 17, 2012, to provide for a Series of Securities (the “ Third Supplemental Indenture ”) and (iv) fourth supplemental indenture, dated as of December 21, 2012, to provide for the addition of certain new Subsidiary Guarantors (the “ Fourth Supplemental Indenture ) (the Original Indenture, as supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and this Fifth Supplemental Indenture is hereinafter called the “ Indenture ”);
WHEREAS, Section 4.09 of the Original Indenture provides, among other things, that if any Credit Facility Debt or Capital Markets Debt of the Company or any Subsidiary of the Company is or becomes guaranteed by any Domestic Subsidiary of the Company, then, if such Subsidiary of the Company is not already a Subsidiary Guarantor, the Company shall cause such Subsidiary to execute and deliver to the Trustee a supplemental indenture pursuant to which such Subsidiary shall become a Subsidiary Guarantor;
WHEREAS, Section 9.01(i) of the Original Indenture provides, among other things, that the Company, the Subsidiary Guarantors and the Trustee may enter into indentures supplemental to the Original Indenture for, among other things, the purpose of adding a Guarantee with respect to the Securities; and
WHEREAS, all action on the part of the Company necessary to authorize this Fifth Supplemental Indenture has been duly taken.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
That, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company, the

1
 
 




Subsidiary Guarantors and the Trustee covenant and agree for the equal and ratable benefit of the Holders as follows:

ARTICLE I
Definitions

SECTION 1.01. Definitions .
A. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed thereto in the Original Indenture.
B. The rules of interpretation set forth in the Original Indenture shall be applied hereto as if set forth in full herein.

ARTICLE II
Guarantors

SECTION 2.01. Subsidiary Guarantors . From this date, in accordance with Sections 4.09 and 10.01 of the Indenture and by executing this Fifth Supplemental Indenture, the Subsidiary Guarantors whose signatures appear below are subject to the provisions of the Indenture to the extent provided for in Article 10 thereof.

ARTICLE III
Miscellaneous

SECTION 3.01. Ratification of Original Indenture; Supplemental Indentures Part of Original Indenture . Except as expressly amended hereby, the Original Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Fifth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 3.02. Concerning the Trustee . The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Fifth Supplemental Indenture.
SECTION 3.03. Counterparts . This Fifth Supplemental Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. The

2
 
 




exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 3.04. GOVERNING LAW . THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.


3
 
 




IN WITNESS WHEREOF, the parties have caused this Fifth Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the date first above written.
ADVANCE AUTO PARTS, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 
    

B.W.P. DISTRIBUTORS, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 
    
AAP FINANCIAL SERVICES, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: President and Chief Financial Officer
 
 

ADVANCE AUTO BUSINESS SUPPORT, LLC
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: President, Chief Financial Officer and Assistant Secretary

ADVANCE AUTO INNOVATIONS, LLC
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Treasurer and Assistant Secretary
 
    

[Supplemental Indenture - Signature Page]

 






ADVANCE AUTO OF PUERTO RICO, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Treasurer and Assistant Secretary
 
    



ADVANCE E-SERVICE SOLUTIONS, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 
 
ADVANCE PATRIOT, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: President, Treasurer and Assistant Secretary
 
   




ADVANCE STORES COMPANY, INCORPORATED
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 
   


[Supplemental Indenture - Signature Page]

 









ADVANCE TRUCKING CORPORATION
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 
    



AUTOPART INTERNATIONAL, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Vice President, Chief Financial Officer and Assistant Clerk
 
 
CROSSROADS GLOBAL TRADING CORP.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer, Treasurer and Assistant Secretary
 



 
 
DISCOUNT AUTO PARTS, LLC
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Vice President, Treasurer and Assistant Secretary
 
 
 
 
 
    

[Supplemental Indenture - Signature Page]

 







DRIVERSIDE, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 

    
 
 
E-ADVANCE, LLC
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Treasurer and Assistant Secretary
 


 
 
MOTOLOGIC, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary
 


 
 
TTR, INC.
By
/s/ Michael A. Norona
 
Name: Michael A. Norona
 
Title: President, Chief Financial Officer and Assistant Secretary
 
 







[Supplemental Indenture - Signature Page]



 






WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By
      /s/ Raymond Delli Colli
 
Name: Raymond Delli Colli
 
Title: Vice President


 


Exhibit 5.1
April 19, 2013

Advance Auto Parts, Inc.
5008 Airport Road
Roanoke, Virginia 24012
Ladies and Gentlemen:
We have acted as special counsel for B.W.P. Distributors, Inc., a New York corporation (the “ Company ”), in connection with the registration under the Securities Act of 1933, as amended (the “ Act ”), of the Company’s guarantee of $300,000,000 aggregate principal amount of 5.75% senior unsecured notes due 2020 of Advance Auto Parts, Inc., a Delaware corporation and indirect parent of the Company (“ Advance ”), and $300,000,000 aggregate principal amount of Advance’s 4.500% Notes due 2022 (collectively, the “ Notes ”), pursuant to the Registration Statement on Form S-3, File No. 333-166291 (as amended and supplemented from time to time, the “ Registration Statement ”), filed with the Securities and Exchange Commission (the “ SEC ”) on April 26, 2010, as amended by Post-Effective Amendment No. 1 filed with the SEC on December 1, 2011, Post-Effective Amendment No. 2 filed with the SEC on December 21, 2012 and Post-Effective Amendment No. 3 filed with the SEC on April 19, 2013.
The Notes were issued as senior indebtedness of Advance under an indenture between Advance, the subsidiary guarantors party thereto and Wells Fargo Bank, National Association (the “ Trustee ”), dated as of April 29, 2010 (the “ Base Indenture ”), as supplemented by the First Supplemental Indenture, dated as of April 29, 2010 (the “ First Supplemental Indenture ”), the Second Supplemental Indenture, dated as of May 27, 2011 (the “ Second Supplemental Indenture ”), the Third Supplemental Indenture, dated as of January 17, 2012 (the “ Third Supplemental Indenture ”) and the Fourth Supplemental Indenture, dated as of December 21, 2012 (the “ Fourth Supplemental Indenture ”). The Base Indenture together with (and as supplemented by) the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture and the Fourth Supplemental Indenture is referred to herein as the “ Existing Indenture ”. The Notes are guaranteed on an unsecured basis by each of the subsidiary guarantors party to the Existing Indenture. This opinion is being furnished in connection with the addition of the Company as a subsidiary guarantor under the Existing Indenture pursuant to the Fifth Supplemental Indenture, dated as of April 19, 2013 (the “ Fifth Supplemental Indenture ”), and the Company’s guarantee on an unsecured basis of the Notes pursuant to the Company’s execution of the Fifth Supplemental Indenture (the “ Subsidiary Guarantee ”), and in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. No opinion is expressed herein as to any matter pert




aining to the contents of the Registration Statement other than as to the validity of the Subsidiary Guarantee.
We have reviewed the corporate proceedings taken by the Company with respect to the authorization of the issuance of the Subsidiary Guarantee. We have also examined and relied upon originals or copies of such corporate records, documents, agreements or other instruments of the Company as we consider appropriate. As to all matters of fact, we have entirely relied upon certificates of officers of the Company and of public officials, and have assumed, without independent inquiry, the accuracy of those certificates. In connection with this opinion, we have also examined and relied upon the Registration Statement. In our examination, we have assumed the genuineness of all signatures, the conformity to the originals of all documents reviewed by us as copies, the authenticity and completeness of all original documents reviewed by us in original or copy form.
We have assumed that, as of immediately before the execution and delivery of the Fifth Supplemental Indenture, the Existing Indenture is in full force and effect and constitutes the valid and binding agreement of each party thereto and has not been supplemented, amended, modified or otherwise changed, whether by agreement, conduct or performance.
The opinion set forth below relating to the binding effect of the Subsidiary Guarantee is subject to the following general qualifications:
(i)  the enforceability of any obligation of the Company may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, marshalling or other laws and rules affecting the enforcement generally of creditors’ rights and remedies (including such as may deny giving effect to waivers of debtors’ or guarantors’ rights);
(ii)  the enforcement of any rights may in all cases be subject to an implied duty of good faith and general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity);
(iii) we express no opinion as to the enforceability of any particular provision of the Subsidiary Guarantee relating to (i) waivers of rights to object to jurisdiction or venue, or consents to jurisdiction or venue, (ii) waivers of rights to (or methods of) service of process, or rights to trial by jury, or other rights or benefits bestowed by operation of law, (iii) waivers of any applicable defenses, setoffs, recoupments or counterclaims, (iv) the granting of any power of attorney or of any proxy to any person, (v) exculpation or exoneration clauses, clauses relating to rights of indemnity or contribution, and clause relating to releases or waivers of unmatured claims or rights, (vi) waivers or variations of legal provisions or rights which are not capable of waiver or variation under applicable law, or (vii) the imposition or collection of interest on overdue interest or providing for a penalty rate of interest or late charges on overdue or defaulted




obligations, or the payment of any premium, liquidated damages or other amount that may be held by any court to be a “penalty” or a “forfeiture”; and
(iv) we express no opinion as to the effect of suretyship defenses, or defenses in the nature thereof, with respect to the obligations of the Company.
This opinion is limited solely to the internal, substantive laws of the State of New York as applied by courts located in New York, in each case to the extent the same may apply to or govern the Subsidiary Guarantee, and we express no opinion as to the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion that the Subsidiary Guarantee, when executed and issued by the Company, will constitute a valid and binding obligation of the Company.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In rendering this opinion and giving this consent, we do not admit that we are “experts” within the meaning of the Act.

Very truly yours,
/s/ Bingham McCutchen LLP
BINGHAM McCUTCHEN LLP
 




Exhibit 10.2

Execution Version

SUPPLEMENT No. 2 (this “ Supplement ”) dated as of April 19, 2013, to the Guarantee Agreement dated as of May 27, 2011 (the “ Guarantee Agreement ”), among ADVANCE AUTO PARTS, INC., a Delaware corporation (“ Holdings ”), ADVANCE STORES COMPANY, INCORPORATED, a Virginia corporation (the “ Borrower ”), the subsidiaries of the Borrower from time to time party thereto (the “ Subsidiary Guarantors ” and, together with Holdings, the “ Guarantors ”) and JPMORGAN CHASE BANK, N.A., a New York banking corporation (“ JPMCB ”), as administrative agent for the Lenders (as defined in the Credit Agreement referred to below).
 
A. Reference is made to the Credit Agreement dated as of May 27, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among Holdings, the Borrower, the lenders from time to time party thereto (the “ Lenders ”) and JPMCB, as administrative agent (in such capacity, the “ Administrative Agent ”) for the Lenders.
 
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the Guarantee Agreement.
 
C. The Borrower and the Guarantors have entered into the Guarantee Agreement in order to induce the Lenders to make Loans and the Issuing Banks to issue Letters of Credit. Pursuant to Section 5.10 of the Credit Agreement and Section 20 of the Guarantee Agreement, each Material Subsidiary that was not in existence or not a Material Subsidiary on the date of the Credit Agreement is required to enter into this Guarantee Agreement as a Subsidiary Guarantor no more than 30 days after the date of determination (in accordance with the provisions of the definition of “Material Subsidiary” in the Credit Agreement) that such Subsidiary has become (or is deemed to be) a Material Subsidiary. Section 20 of the Guarantee Agreement provides that additional Subsidiaries may become Subsidiary Guarantors under the Guarantee Agreement by execution and delivery of an instrument in the form of this Supplement. The undersigned Subsidiary (the “ New Guarantor ") is executing this Supplement in accordance with the requirements of the Credit Agreement and the Guarantee Agreement to become a Subsidiary Guarantor under the Guarantee Agreement in order to induce the Lenders to make additional Loans and the Issuing Banks to issue additional Letters of Credit and as consideration for Loans previously made and Letters of Credit previously issued.
 
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
 
SECTION 1. In accordance with Section 20 of the Guarantee Agreement, the New Guarantor by its signature below becomes a Guarantor under the Guarantee Agreement with the same force and effect as if originally named therein as a Guarantor and such New Guarantor hereby (a) agrees to all the terms and provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct on and as of the date hereof. Each reference to a “Guarantor” in the Guarantee Agreement shall be deemed to include the New Guarantor. The Guarantee Agreement is hereby incorporated herein by reference.
 
The New Guarantor represents and warrants to the Administrative Agent, the other Lenders and the Issuing Banks that this Supplement has been duly authorized, executed and




delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
 
This Supplement may be executed in 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 Administrative Agent shall have received counterparts of this Supplement that, when taken together, bear the signatures of the New Guarantor and the Administrative Agent. Delivery of an executed signature page to this Supplement by facsimile or other electronic methods of transmission shall be as effective as delivery of a manually executed counterpart of this Supplement.
 
Except as expressly supplemented hereby, the Guarantee Agreement shall remain in full force and effect.
 
SECTION 2. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Guarantee Agreement shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision hereof in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). 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.
 
All communications and notices hereunder shall be in writing and given as provided in Section 13 of the Guarantee Agreement. All communications and notices hereunder to the New Guarantor shall be given to it in care of the Borrower.
 
The New Guarantor agrees to reimburse the Administrative Agent for its out-of-pocket expenses in connection with this Supplement, including the reasonable fees, disbursements and other charges of counsel for the Administrative Agent.






IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly executed this Supplement to the Guarantee Agreement as of the day and year first above written.
 


B.W.P. DISTRIBUTORS, INC.


By:     /s/ Michael A. Norona            
Name: Michael A. Norona
Title: Executive Vice President, Chief Financial Officer and Assistant Secretary


JPMORGAN CHASE BANK, N.A., as Administrative Agent


By:     /s/ Sarah Freedman            
Name: Sarah Freedman
Title: Executive Director