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EXHIBIT 4.3
SUPPLEMENTAL INDENTURE, dated as of February 22, 1999 (the
"Supplemental Indenture"), among CALIFORNIA TIRE COMPANY, a
California corporation (the "New Guarantor"), THE J.H. HEAFNER
COMPANY, INC., a North Carolina corporation (the "Company"), each
other existing Subsidiary Guarantor under the Indenture referred
to below, and FIRST UNION NATIONAL BANK, as Trustee (the
"Trustee") under the Indenture referred to below.
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W I T N E S S E T H:
WHEREAS, the Company, the then existing Subsidiary Guarantors
and the Trustee have heretofore executed and delivered an Indenture, dated as
of May 15, 1998 (as amended, supplemented, waived or otherwise modified, the
"Indenture"), providing for the issuance of an aggregate principal amount of
$100 million of 10% Senior Notes due 2008 of the Company (the "Securities");
WHEREAS, Section 4.12 of the Indenture provides that the
Company is required to cause each domestic Restricted Subsidiary (other than an
Immaterial Subsidiary that is neither a borrower nor a guarantor under the
Credit Facility) to execute and deliver to the Trustee a Guaranty Agreement
pursuant to which such Restricted Subsidiary will Guarantee payment of the
Securities on the same terms and conditions as those set forth in Article 10 of
the Indenture;
WHEREAS, the Company is causing the New Guarantor to execute
this Supplemental Indenture in order to comply with the terms of Section 4.12
of the Indenture and the New Guarantor intends thereby to become bound as a
Subsidiary Guarantor; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the
Trustee and the Company are authorized to execute and deliver this Supplemental
Indenture amending the Indenture, without the consent of any Holder (as defined
in the Indenture);
NOW, THEREFORE, in consideration of the foregoing and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the New Guarantor, the Company, the existing Subsidiary
Guarantors and the Trustee mutually covenant and agree for the equal and
ratable benefit of the holders of the Securities as follows:
ARTICLE I
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental
Indenture, terms defined in the Indenture or in the preamble or recital hereto
are used herein as
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therein defined, except that the term "Holders" in this 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
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The New Guarantor hereby
becomes a party to the Indenture as a Subsidiary Guarantor and as such will
have all of the rights and be subject to all of the obligations and agreements
of a Subsidiary Guarantor under the Indenture. The New Guarantor agrees to be
bound by all of the provisions of the Indenture applicable to a Subsidiary
Guarantor and to perform all of the obligations and agreements of a Subsidiary
Guarantor under the Indenture.
SECTION 2.2 Guarantee. The New Guarantor hereby fully,
unconditionally and irrevocably guarantees, jointly and severally with each
other Subsidiary Guarantor, to each Holder of the Securities and the Trustee
and its successors and assigns, the full and punctual payment when due, whether
at maturity, by acceleration, by redemption or otherwise and within applicable
grace periods, of the Obligations pursuant to Article 10 of the Indenture and
subject to the terms and conditions of the Indenture.
ARTICLE III
Miscellaneous
SECTION 3.1 Notices. All notices and other communications to the
New Guarantor shall be given as provided in Section 11.02 of the Indenture.
SECTION 3.2 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 Supplemental Indenture or the Indenture or any
provision herein or therein contained.
Section 3.3 Governing Law. This 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 3.4 Severability Clause. In case any provision 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
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impaired thereby and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
Section 3.5 Ratification of Indenture; 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 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 Supplemental Indenture.
Section 3.6 Counterparts. The parties hereto may sign one or
more copies of this 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 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.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
THE J.H. HEAFNER COMPANY, INC.
By: /s/ William H. Gaither
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Name: William H. Gaither
Title: President and Chief Executive Officer
CALIFORNIA TIRE COMPANY,
as a Guarantor
By: /s/ William H. Gaither
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Name: William H. Gaither
Title: Chief Executive Officer
By: /s/ J. Michael Gaither
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Name: J. Michael Gaither
Title: Vice President, General Counsel & Secretary
OLIVER & WINSTON, INC.
By: /s/ William H. Gaither
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Name: William H. Gaither
Title: Chief Executive Officer
By: /s/ J. Michael Gaither
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Name: J. Michael Gaither
Title: Vice President, General Counsel & Secretary
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THE SPEED MERCHANT, INC.
By: /s/ William H. Gaither
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Name: William H. Gaither
Title: Chief Executive Officer
By: /s/ J. Michael Gaither
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Name: J. Michael Gaither
Title: Vice President, General Counsel & Secretary
PHOENIX RACING, INC.
By: /s/ William H. Gaither
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Name: William H. Gaither
Title: Chief Executive Officer
By: /s/ J. Michael Gaither
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Name: J. Michael Gaither
Title: Vice President, General Counsel & Secretary
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ Shannon Schwartz
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Name: Shannon Schwartz
Title: Assistant Vice President
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