Exhibit 4.1
FOURTH SUPPLEMENTAL INDENTURE, dated as of March 27, 2002 (the "FOURTH
SUPPLEMENTAL INDENTURE"), among HEAFNER TIRE GROUP, INC., a Delaware
corporation (successor to The J.H. Heafner Company, Inc.) (the
"COMPANY"), the Subsidiary Guarantors party hereto (the "SUBSIDIARY
GUARANTORS"), and FIRST UNION NATIONAL BANK, as Trustee (the
"TRUSTEE"), under the Indenture referred to below.
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The Company, the Subsidiary Guarantors and the Trustee are
parties to an Indenture, dated as of December 1, 1998, as supplemented by the
First Supplemental Indenture dated as of February 22, 1999, the Second
Supplemental Indenture dated as of May 14, 1999, and the Third Supplemental
Indenture, dated as of May 25, 2000 (as so supplemented, the "INDENTURE"),
providing, among other things, for the authentication, delivery and
administration of the Company's 10% Senior Notes Due 2008, Series D (the
"SECURITIES").
Pursuant to an Offer to Purchase and Consent Solicitation
Statement dated February 5, 2002, as amended by an Amended Offer to Purchase and
Consent Solicitation Statement dated March 11, 2002 (as further amended or
supplemented, the "TENDER OFFER AND CONSENT SOLICITATION"), the Company has
proposed certain amendments (the "PROPOSED AMENDMENTS") to the Indenture.
Pursuant to Section 9.02 of the Indenture, the Holders (as
defined in the Indenture) of at least a majority in principal amount of the
outstanding Securities have approved such Proposed Amendments as described in
this Fourth Supplemental Indenture.
The Company has directed the Trustee to execute and deliver
this Fourth Supplemental Indenture in accordance with the terms of the
Indenture.
In consideration of the foregoing premises, the parties
mutually agree as follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the Securities:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINED TERMS. As used in this Fourth Supplemental
Indenture, terms defined in the Indenture or in the preamble or recital hereto
are used herein as therein defined, except that, unless otherwise stated, the
term "Holders" in this Fourth Supplemental Indenture shall refer to the term
"Holders" as defined in the Indenture and the Trustee acting on behalf or for
the benefit of such Holders. The words "herein," "hereof" and "hereby" and other
words of similar import used in this Fourth Supplemental Indenture refer to this
Fourth Supplemental Indenture as a whole and not to any particular section
hereof.
ARTICLE II
AMENDMENTS TO INDENTURE
SECTION 2.1 AMENDMENTS TO INDENTURE. The Indenture is hereby
amended as follows:
a) The following definition is added to Section 1.01 of the
Indenture:
"Limited Vendor Financing" means Vendor Financing which
constitutes Indebtedness, or is secured by a Lien (to the
extent of the fair value of the property subject to the Lien),
or both."
b) The definition of "Vendor Financing" in Section 1.01 of the
Indenture is deleted in its entirety and replaced with the
following:
"Vendor Financing" means Indebtedness and other obligations
(including trade accounts payable) Incurred to finance the
cost to acquire inventory to the extent such Indebtedness and
other obligations are Incurred to and held by the supplier of
such inventory.
c) Clause (f) of the definition of "Permitted Liens" in Section
1.01 of the Indenture is deleted in its entirety and replaced
with the following:
"(f) Liens securing Indebtedness Incurred to finance the
construction, purchase or lease of, or repairs, improvements
or additions to, property of such Person, and Liens securing
Vendor Financing; PROVIDED, HOWEVER, that the Lien may not
extend to any other property (other than improvements thereon)
owned by such Person or any of its Subsidiaries at the time
the Lien is Incurred, and the Indebtedness or Vendor Financing
(other than any interest thereon) secured by the Lien may not
be Incurred more than 180 days after the later of the
acquisition, completion of construction, repair, improvement,
addition or commencement of full operation of the property
subject to the Lien; and PROVIDED, FURTHER, that the aggregate
amount of Vendor Financing at any time outstanding secured by
Liens pursuant to this clause (f) (to the extent of the fair
value of the inventory securing any such Vendor Financing)
shall not exceed the sum of (x) the amount of Limited Vendor
Financing, and Refinancing Indebtedness in respect thereof,
outstanding immediately after giving effect to the Fourth
Supplemental Indenture hereto, dated as of March __, 2002, and
the consummation at or about that time of the transactions
entered into by the Company in connection therewith, PLUS (y)
$30 million; ".
d) Section 4.03(b)(4) of the Indenture is deleted in its entirety
and replaced with the following:
"(4) Vendor Financing, and Refinancing Indebtedness in respect
thereof, in an aggregate amount which does not exceed, when
taken together with all other
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Indebtedness Incurred pursuant to this clause (4) and then
outstanding, the sum of (x) the amount of Limited Vendor
Financing, and Refinancing Indebtedness in respect thereof,
outstanding immediately after giving effect to the Fourth
Supplemental Indenture hereto, dated as of March __, 2002, and
the consummation at or about that time of the transactions
entered into by the Company in connection therewith, PLUS (y)
$30 million;".
e) Section 4.03(b)(5) of the Indenture is deleted in its entirety
and replaced with the following:
"(5) Attributable Debt in respect of Sale/Leaseback
Transactions, and Refinancing Indebtedness in respect thereof,
in an aggregate amount which does not exceed, when taken
together with all other Indebtedness Incurred pursuant to this
clause (5) and then outstanding, the sum of (x) the amount of
Attributable Debt in respect of Sale/Leaseback Transactions,
and Refinancing Indebtedness in respect thereof, outstanding
immediately after giving effect to the Fourth Supplemental
Indenture hereto, dated as of March __, 2002, and the
consummation at or about that time of the transactions entered
into by the Company in connection therewith, PLUS (y) $5
million; PROVIDED that such Sale/Leaseback Transactions comply
with Section 4.11;".
f) Section 4.03(b)(11) of the Indenture is deleted in its
entirety and replaced with the following:
"(11) Indebtedness of the Company in an aggregate principal
amount which, together with all other Indebtedness of the
Company outstanding on the date of such Incurrence (other than
Indebtedness permitted by Section 4.03(b)(1) through (10) or
Section 4.03(a)), does not exceed $25 million.".
SECTION 2.2 NOTIFICATION TO HOLDERS. The Company shall notify
the Holders in accordance with Section 9.02 of the Indenture of the execution of
this Fourth Supplemental Indenture. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of this Fourth Supplemental Indenture.
SECTION 2.3 RECEIPT BY TRUSTEE. In accordance with Sections
9.06 and 11.04 of the Indenture, the parties acknowledge that the Trustee has
received an Officers' Certificate and Opinion of Counsel as conclusive evidence
that this Fourth Supplemental Indenture complies with the applicable
requirements of the Indenture.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 PARTIES. Nothing expressed or mentioned herein is
intended or shall be construed to give any Person, firm or corporation, other
than the Holders and the Trustee, any legal or equitable right, remedy or claim
under or in respect of this Fourth Supplemental Indenture or the Indenture or
any provision herein or therein contained.
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SECTION 3.2 GOVERNING LAW. This Fourth Supplemental Indenture
shall be governed by 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.
SECTION 3.3 SEVERABILITY CLAUSE. In case any provision in this
Fourth 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 and such provision shall be ineffective
only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.4 RATIFICATION OF INDENTURE; FOURTH SUPPLEMENTAL
INDENTURE PART OF INDENTURE. Except as expressly supplemented hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect. This
Fourth Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby. The Trustee makes no representation or
warranty as to the validity or sufficiency of this Fourth Supplemental
Indenture.
SECTION 3.5 CONDITION TO OPERATIVE EFFECT. For purposes of
Sections 9.02 and 9.04 of the Indenture only, this Fourth Supplemental Indenture
shall have operative effect upon execution hereof by the Trustee, the Company
and the Subsidiary Guarantors. For all other purposes, including Section 2.1
hereof, the operative effect of this Fourth Supplemental Indenture is
conditioned upon the occurrence of the consummation of the Amended Offer and
Solicitation (each as defined in the Tender Offer and Consent Solicitation).
SECTION 3.6 COUNTERPARTS. The parties hereto may sign one or
more copies of this Fourth Supplemental Indenture in counterparts, all of which
together shall constitute one and the same agreement.
SECTION 3.7 HEADINGS. The headings of the Articles and the
sections in this Fourth Supplemental Indenture are for convenience of reference
only and shall not be deemed to alter or affect the meaning or interpretation of
any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed as of the date first above written.
HEAFNER TIRE GROUP, INC.
By: /s/ Richard P. Johnson
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Name: Richard P. Johnson
Title: President & CEO
THE SPEED MERCHANT, INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
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Name: Richard P. Johnson
Title: Chairman
By: /s/ W.E. Berry
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Name: William E. Berry
Title: Vice-President
T.O. HAAS HOLDING CO., INC.,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
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Name: Richard P. Johnson
Title: Chairman
T.O. HAAS TIRE COMPANY, INC. ,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
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Name: Richard P. Johnson
Title: Chairman
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CALIFORNIA TIRE COMPANY,
as a Subsidiary Guarantor
By: /s/ Richard P. Johnson
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Name: Richard P. Johnson
Title: Chairman
By: /s/ W.E. Berry
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Name: William E. Berry
Title: Vice-President
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Shawn K. Bednasek
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Name: Shawn K. Bednasek
Title: Vice President
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