EXHIBIT 4.6
SUPPLEMENTAL INDENTURE
dated as of December 11, 2003
among
Roadway LLC,
as successor obligor
Yellow Roadway Corporation,
as a Guarantor
and
SunTrust Bank,
as Trustee
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81/4 % Senior Notes Due December 1, 2008
SUPPLEMENTAL INDENTURE
This first supplemental indenture (this "SUPPLEMENTAL INDENTURE") is
made as of the 11th day of December, 2003, among Roadway LLC, a Delaware limited
liability company, as successor obligor (the "SUCCESSOR COMPANY"), Yellow
Roadway Corporation, a Delaware corporation, as a Guarantor (a "PARENT"), and
SunTrust Bank, a Georgia banking corporation, as Trustee (the "TRUSTEE").
RECITALS
Whereas, Roadway Corporation, a Delaware corporation (the "COMPANY"),
the Guarantors party thereto and the Trustee executed and delivered an
Indenture, dated as of November 30, 2001 (the "INDENTURE") relating to the
Company's 8 1/4% Senior Notes due December 1, 2008 (the "NOTES"); and
Whereas, Section 5.01(a) of the Indenture provides, among other things,
that the Company shall not merge into another Person unless (i) the surviving
Person is organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and expressly assumes by supplemental
indenture all of the obligations of the Company under the Indenture and the
Notes; and the Company has delivered to the Trustee an Opinion of Counsel
stating that such merger and such supplemental indenture complies with that
provision and that all conditions precedent provided for in the Indenture
relating to such transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of such successor
enforceable against such entity in accordance with its terms, subject to
customary exceptions; and (ii) immediately after giving effect to the
transaction, no Default shall have occurred and be continuing; and (iii) the
Company delivers to the Trustee an Officers' Certificate stating that the merger
and the supplemental indenture comply with the Indenture; and
Whereas, contemporaneously herewith, the Company is merging with and
into the Successor Company (the "MERGER") pursuant to an Agreement and Plan of
Merger, dated as of July 8, 2003, under the terms of which and in accordance
with the Delaware General Corporation Law and the Delaware Limited Liability
Company Act, the separate corporate existence of the Company will cease and the
Successor Company will succeed to and assume all the rights and obligations of
the Company; and
Whereas, Section 5.01(b) of the Indenture provides that, upon the
consummation of any transaction effected in accordance with Section 5.01 of the
Indenture where the Company is not the continuing person, the surviving Person
will succeed to, and be substituted for, and may exercise every right and power
of, the Company under the Indenture with the same effect as if such successor
Person had been named as the Company therein, and thereafter, upon such
substitution, the Company will be released from its obligations under the
Indenture and the Notes; and
WHEREAS, contemporaneously herewith and upon consummation of the
Merger, the Parent has agreed to become a Guarantor and provide a Note Guaranty
under the Indenture and to be bound by the terms of the Indenture applicable to
Guarantors; and
Whereas, contemporaneously herewith, the Successor Company has
delivered, or caused to be delivered, to the Trustee, an Officers' Certificate
and an Opinion of Counsel, each in accordance with the terms and provisions of
the Indenture; and
WHEREAS, the Company, Credit Suisse First Boston (the "COLLATERAL
AGENT"), the Trustee and the administrative agent under the Credit Agreement
dated as of November 30, 2001, by and among the Company, the lenders party
thereto and Credit Suisse First Boston, as administrative agent (hereinafter,
the "Credit Agreement") are parties to certain Security Documents, including,
without limitation, that certain Pledge, Security and Intercreditor Agreement
dated as of November 30, 2001, by and among the Company, the Collateral Agent
and the Trustee (the "Intercreditor Agreement"); and
WHEREAS, contemporaneously with the Merger, the obligations under the
Credit Agreement will be paid in full and the Liens granted under the Credit
Agreement and the Security Documents will be released.
AGREEMENT
Now, therefore, in consideration of the premises and mutual covenants
herein contained and intending to be legally bound, the parties to this
Supplemental Indenture agree as follows:
SECTION 1. (a) Effective with the Merger, Successor Company hereby
expressly and fully and unconditionally assumes all of the obligations,
covenants, agreements and undertakings of the Company under the Indenture and
the Notes.
(b) Upon the consummation of the Merger, the Successor
Company will succeed to, and be substituted for, and may exercise every right
and power of, the Company under the Indenture with the same effect as if the
Successor Company had been named as the Company therein. Upon such substitution,
the Company will be released from its obligations under the Indenture and the
Notes. Each reference in the Indenture and the Notes to the name "Roadway
Corporation" shall hereafter be deemed a reference to "Roadway LLC" and each
reference in the Indenture and the Notes to the term "Company" shall hereafter
be deemed a reference to the "Successor Company".
SECTION 2. Parent, by its execution of this Supplemental Indenture to
be effective upon consummation of the Merger, agrees to be a Guarantor under the
Indenture and to be bound by the terms of the Indenture applicable to
Guarantors, including, but not limited to, Article 10 thereof.
SECTION 3. The Trustee agrees and acknowledges that, upon the payment
in full of all obligations under the Credit Agreement, the Security Documents,
including, without limitation, the Intercreditor Agreement, will terminate and
the Liens granted thereunder will be released, as contemplated by Sections
4.09(b) and 11.01(b) of the Indenture. The Successor Company hereby represents
and warrants to the Trustee that the Successor Company and its subsidiaries have
complied with Sections 4.06 and 4.09 of the Indenture.
SECTION 4. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
SECTION 5. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 6. This Supplemental Indenture may be signed in various
counterparts which together will constitute one and the same instrument.
SECTION 7. This Supplemental Indenture is an amendment supplemental to
the Indenture and the Indenture and this Supplemental Indenture will henceforth
be read together.
[Signatures are on the following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
ROADWAY LLC, as successor obligor
By: ______________________________
Name:
Title:
YELLOW ROADWAY CORPORATION, as a Guarantor
By: ______________________________
Name:
Title:
SUNTRUST BANK, as Trustee
By: ______________________________
Name:
Title:
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