Exhibit 4.6


 


FIFTH SUPPLEMENTAL
INDENTURE


 


FIFTH  SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”),
dated as of January 26, 2009, among Towing Holding LLC, a Delaware limited
liability company (the “Guaranteeing Subsidiary”),
an indirect subsidiary of TriMas Corporation (or its permitted successor), a
Delaware corporation (the “Company”), the
Company, the other Guarantors (as defined in the Indenture referred to herein)
and The Bank of New York Mellon (formerly The Bank of New York) 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 June 6, 2002 (as supplemented and amended from time to time,
the “Indenture”) pursuant to which
$437,773,000 aggregate principal amount of 9 7/8% Senior Subordinated Notes due
2012 (the “Notes”) were issued and $337,773,000
aggregate principal amount of the Notes remain outstanding on the date hereof;


 


WHEREAS,
the Indenture provides that under certain circumstances the Guaranteeing
Subsidiary shall execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company’s Obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the “Note Guarantee”);
and


 


WHEREAS,
pursuant to Section 9.01 of the Indenture, the Trustee is authorized to
execute and deliver this Supplemental Indenture.


 


NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing
Subsidiary 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.  The Guaranteeing Subsidiary hereby agrees as
follows:


 


(a)                                  Along with all Guarantors named in the
Indenture, to jointly and severally Guarantee to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, the Notes or the obligations of the Company hereunder
or thereunder, that:


 


(i)                                     the principal of, and premium and
Liquidated Damages, if any, and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and


 

















 


interest on the Notes, if any, if lawful, and all
other obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and


 


(ii)                                  in case of any extension of time of
payment or renewal of any Notes or any of such other obligations, that 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.  Failing payment when due
of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors shall be jointly and severally obligated to pay the same
immediately.


 


(b)                                 The obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or the Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a Guarantor.


 


(c)                                  The following is hereby waived:  diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever.


 


(d)                                 This Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and the Indenture, and the Guaranteeing Subsidiary accepts all
obligations of a Guarantor under the Indenture.


 


(e)                                  If any Holder or the Trustee is required
by any court or otherwise to return to the Company, the Guarantors, or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Company or the Guarantors, any amount paid by either to the Trustee
or such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.


 


(f)                                    The Guaranteeing Subsidiary shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.


 


(g)                                 As between the Guarantors, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article 6
of the Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect
of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6
of the Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee.


 

















 


(h)                                 The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantee.


 


(i)                                     Pursuant to Section 10.02 of the
Indenture, after giving effect to any maximum amount and all other contingent
and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under Article 10
of the Indenture, this new Note Guarantee shall be limited to the maximum
amount permissible such that the obligations of such Guarantor under this Note
Guarantee will not constitute a fraudulent transfer or conveyance.


 


3.                                       EXECUTION AND DELIVERY.  Each Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.


 


4.                                       GUARANTEEING SUBSIDIARY
MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.


 


(a)                                  The Guaranteeing Subsidiary may not sell
or otherwise dispose of all substantially all of its assets to, or consolidate
with or merge with or into (whether or not such Guarantor is the surviving
Person) another Person, other than the Company or another Guarantor unless:


 


(i)                                     immediately after giving effect to such
transaction, no Default or Event of Default exists; and


 


(ii)                                  either (A) subject to Sections 11.04
and 11.05 of the Indenture, the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such consolidation or
merger unconditionally assumes all the obligations of that Guarantor, pursuant
to a supplemental indenture in form and substance reasonably satisfactory to
the Trustee, under the Notes, the Indenture and the Note Guarantee on the terms
set forth herein or therein; or (B) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions of the
Indenture, including without limitation, Section 4.10 thereof.


 


(b)                                 In case of any such consolidation,
merger, sale or conveyance and upon the assumption by the successor Person, by
supplemental indenture, executed and delivered to the Trustee and satisfactory
in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the
due and punctual performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor.  Such
successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable under the Indenture
which theretofore shall not have been signed by the Company and delivered to the
Trustee.  All the Note Guarantees so
issued shall in all respects have the same legal rank and benefit under the
Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the


 

















 


terms of the Indenture as though all of such Note
Guarantees had been issued at the date of the execution hereof.


 


(c)                                  Except as set forth in Articles 4 and 5
and Section 11.05 of Article 11 of the Indenture, and notwithstanding
clauses (a) and (b) above, nothing contained in the Indenture or in
any of the Notes shall prevent any consolidation or merger of a Guarantor with
or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.


 


5.                                       RELEASES.


 


(a)                                  In the event of any sale or other
disposition of all or substantially all of the assets of any Guarantor, by way
of merger, consolidation or otherwise, or a sale or other disposition of all of
the capital stock of any Guarantor, in each case to a Person that is not
(either before or after giving effect to such transaction) a Restricted
Subsidiary of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the
capital stock of such Guarantor) or the corporation acquiring the property (in
the event of a sale or other disposition of all or substantially all of the
assets of such Guarantor) will be released and relieved of any obligations
under its Note Guarantee; provided that
the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of the Indenture, including without limitation Section 4.10
of the Indenture.  Upon delivery by the
Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including without limitation Section 4.10
of the Indenture, the Trustee shall execute any documents reasonably required
in order to evidence the release of any Guarantor from its obligations under
its Note Guarantee.


 


(b)                                 Any Guarantor not released from its
obligations under its Note Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under the Indenture as provided in Article 11 of the Indenture.


 


6.                                       NO RECOURSE AGAINST OTHERS.  No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as
such, shall have any liability for any obligations of the Company or any
Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture or
this Supplemental Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. 
Each Holder of the Notes by accepting a Note waives and releases all
such liability.  The waiver and release
are part of the consideration for issuance of the Notes.  Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the SEC
that such a waiver is against public policy.


 


7.                                       NEW YORK LAW TO GOVERN.  THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE 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.


 

















 


8.                                       COUNTERPARTS.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same
agreement.


 


9.                                       EFFECT OF HEADINGS.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


 


10.                                 THE TRUSTEE.  The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary and the
Company.


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to
be duly executed and attested, all as of the date first above written.


 


Dated:  January 26, 2009


 


	
   

  	
  Towing Holding LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/A. Mark Zeffiro

  
	
   

  	
   

  	
  Name: A. Mark Zeffiro

  
	
   

  	
   

  	
  Title:   Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TriMas Corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Joshua A. Sherbin

  
	
   

  	
   

  	
  Name: Joshua A. Sherbin

  
	
   

  	
   

  	
  Title:   Vice
  President and Secretary

  



 

















 


	
   

  	
  EXISTING GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  Arrow Engine Company

  
	
   

  	
  Cequent Performance
  Products, Inc.

  
	
   

  	
  Commonwealth
  Disposition LLC

  
	
   

  	
  Compac Corporation

  
	
   

  	
  Dew
  Technologies, Inc.

  
	
   

  	
  The HammerBlow Company,
  LLC

  
	
   

  	
  HammerBlow, LLC

  
	
   

  	
  Hi-Vol Products LLC

  
	
   

  	
  Cequent Consumer
  Products, Inc.

  
	
   

  	
  K.S.
  Disposition, Inc.

  
	
   

  	
  Keo Cutters, Inc.

  
	
   

  	
  Lake Erie Products
  Corporation

  
	
   

  	
  Lamons Gasket Company

  
	
   

  	
  Monogram Aerospace
  Fasteners, Inc.

  
	
   

  	
  NI Foreign Military
  Sales Corp.

  
	
   

  	
  NI
  Industries, Inc.

  
	
   

  	
  Norris Cylinder Company

  
	
   

  	
  Richards
  Micro-Tool, Inc.

  
	
   

  	
  Rieke Corporation

  
	
   

  	
  Rieke Leasing Co.,
  Incorporated

  
	
   

  	
  Rieke of
  Mexico, Inc.

  
	
   

  	
  TriMas Company LLC

  
	
   

  	
  TriMas
  Fasteners, Inc.

  
	
   

  	
  TriMas Services Corp.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Joshua A. Sherbin

  
	
   

  	
   

  	
  Name: Joshua A. Sherbin

  
	
   

  	
   

  	
  Title:   Vice President and Secretary

  



 

















 


	
   

  	
  The Bank of New York
  Mellon,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Roxane J. Ellwanger

  
	
   

  	
   

  	
  Authorized
  Signatory