Exhibit 4.1
CSK AUTO, INC.
45/8% Senior Exchangeable Notes due 2025
SECOND SUPPLEMENTAL INDENTURE
Dated as of July 27, 2006
with respect to the
INDENTURE
Dated as of December 19, 2005
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE dated as of July 27, 2006 (this “Supplemental Indenture”) among
CSK Auto, Inc., an Arizona corporation (the “Company”), CSK Auto Corporation, a Delaware
corporation and the parent of the Company (the “Issuer”), CSKAUTO.COM, Inc., a Delaware corporation
(the “Subsidiary Guarantor”), and The Bank of New York Trust Company, N.A., a national banking
association, as trustee under the indenture referred to below (the “Trustee”).
WITNESSETH
A. WHEREAS, the Company, the Issuer and the existing Subsidiary Guarantor have heretofore
executed and delivered to the Trustee an Indenture (as amended, supplemented or otherwise modified,
the “Indenture”) dated as of December 19, 2005, providing for the issuance of the Company’s 45/8%
Senior Exchangeable Notes due 2025 (the “Notes”), initially in the aggregate principal amount of up
to $100,000,000.
B. WHEREAS, pursuant to and in accordance with Section 10.02 of the Indenture, the Company has
obtained, on the date hereof, the consent of the holders of the Notes representing not less than a
majority in aggregate Principal Amount of the outstanding Notes to the amendments to the Indenture
set forth in this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, it is mutually covenanted and agreed
for the equal and ratable benefit of the holders of the Notes as follows:
SECTION 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 therein defined. 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.
SECTION 2. Amendments to Indenture. At such time as the Company delivers written
notice to the Trustee and The Altman Group, Inc., the Depositary for the Notes for purposes of a
tender offer and consent solicitation for the Notes, that Notes representing at least a majority in
aggregate Principal Amount of outstanding Notes not owned by the Company or its Affiliates tendered
(and not validly withdrawn) have been accepted pursuant to the Company’s Letter of Consent and
Waiver dated July 27, 2006:
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(a) |
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The following defined term will be added to Section 1.01 of the Indenture in
the appropriate alphabetical order: |
“Covenant Reversion Date” means 11:59 p.m., New York City time,
on June 30, 2007.
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(b) |
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The definition of “Exchange Price” in Section 1.01 of the Indenture shall be
amended by deleting the text of such definition in its entirety and replacing it with
the following text: |
“Exchange Price” as of any day means the Principal Amount
divided by the Exchange Rate as of such date and rounded to the
nearest cent. The Exchange Price shall be $16.50 per share of
Common Stock as of July 27, 2006.
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(c) |
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Section 4.06 of the Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text: |
Section 4.06. Rule 144A Information Requirement. Within the
period prior to the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), the Company and the Issuer covenant and agree
that they shall, during any period in which neither the Company nor
the Issuer is subject to Section 13 or 15(d) under the Exchange Act,
make available to any holder or beneficial holder of Notes or any
Common Stock issued upon exchange thereof which continue to be
Restricted Securities in connection with any sale thereof and any
prospective purchaser of Notes or such Common Stock designated by
such holder or beneficial holder, the information required pursuant
to Rule 144A(d)(4) under the Securities Act upon the request of any
holder or beneficial holder of the Notes or such Common Stock and it
will take such further action as any holder or beneficial holder of
such Notes or such Common Stock may reasonably request, all to the
extent required from time to time to enable such holder or
beneficial holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such Rule may be amended from
time to time. Upon the request of any holder or any beneficial
holder of the Notes or such Common Stock, the Company and the Issuer
will deliver to such holder a written statement as to whether it has
complied with such requirements.
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(d) |
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Section 4.08 of the Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text: |
Section 4.08. Compliance Certificate. The Company shall,
except as otherwise provided in this Section 4.08, deliver to the
Trustee, within one hundred twenty calendar days after the end of
each fiscal year of the Company (which fiscal year of the Company
presently ends on the Sunday nearest to January 31), a certificate
signed by either the principal executive officer, principal
financial officer or principal accounting officer of the Company,
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stating whether or not to the best knowledge of the signer
thereof the Company or the Issuer is in default in the performance
and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement
of notice provided hereunder) and, if the Company or the Issuer
shall be in default, specifying all such defaults and the nature and
the status thereof of which the signer may have knowledge (such
certificate, a “Compliance Certificate”).
The Company will, except as otherwise provided in this Section
4.08, deliver to the Trustee, promptly upon becoming aware of (i)
any default in the performance or observance of any covenant,
agreement or condition contained in this Indenture, or (ii) any
Event of Default, an Officers’ Certificate specifying with
particularity such default or Event of Default and further stating
what action the Company or the Issuer has taken, is taking or
proposes to take with respect thereto (such certificate, a “Default
Certificate”).
Any notice required to be given under this Section 4.08 shall
be delivered to a Responsible Officer of the Trustee at its
Corporate Trust Office.
Notwithstanding any other provision of this Section 4.08 or
this Indenture, (i) the Compliance Certificate that the Company
would have been required (but for this sentence) to deliver pursuant
to this Section 4.08 at any time before the Covenant Reversion Date
shall not be required to be delivered for failure of the Company to
comply with Sections 4.08 or 5.04 of this Indenture until the
Covenant Reversion Date, and (ii) the Company shall have no
obligation to deliver a Default Certificate pursuant to this Section
4.08 relating to the default in the performance or breach of any
covenant contained in Sections 4.08 or 5.04 of this Indenture that
occurred prior to the Covenant Reversion Date.
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(e) |
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Section 5.04 of the Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text: |
Section 5.04. Reports by Company. The Company shall, except
as otherwise provided in this Section 5.04, file with the Trustee
(and the Commission if at any time after the Indenture becomes
qualified under the Trust Indenture Act), and transmit to holders of
Notes, such information, documents and other reports and such
summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to
such Act, whether or not the Notes are governed by such Act;
provided that any such information, documents or
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reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall, unless such
information, documents or reports are available on the Commission’s
EDGAR filing system (or any successor thereto) be filed with the
Trustee within fifteen calendar days after the same is so required
to be filed with the Commission. Delivery of such reports,
information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or
determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officers’
Certificates). Notwithstanding any other provision of this Section
5.04 or this Indenture, the documents and reports referred to in
this Section 5.04 that the Company would have been required to file
with the Commission or the Trustee on any date on or before the
Covenant Reversion Date (but for this sentence) will not be required
to be filed by the Company until the Covenant Reversion Date.
(f) Subclause (e) of Section 6.01 of the Indenture shall be amended by deleting the text of
such Subclause in its entirety and replacing it with the following text:
(e) failure on the part of the Company duly to observe or
perform any other of the terms, covenants or agreements on the part
of the Company in the Notes or this Indenture (other than a covenant
or agreement a default in whose performance or whose breach is
elsewhere in this Section 6.01 specifically dealt with) continued
for a period of 60 calendar days after the date on which written
notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or to the
Company and a Responsible Officer of the Trustee by the holders of
at least 25% in aggregate Principal Amount of the Notes at the time
outstanding determined in accordance with Section 8.04; provided,
however, that notwithstanding any of the foregoing or any other
provision of this Indenture, the failure of the Company to comply
with Sections 4.08 or 5.04 of this Indenture, and Section 314(a) of
the Trust Indenture Act, at any time before the Covenant Reversion
Date, shall not constitute a default or an Event of Default under
this clause (e); or
(g) The first paragraph of Subclause (e) of Section 14.01 of the Indenture shall be amended
by deleting the text of such paragraph in its entirety and replacing it with the following
text:
(e) If a Noteholder elects to exchange its notes in connection
with a specified corporate transaction pursuant to
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Section 14.01(b) that occurs prior to December 15, 2010, and
the corporate transaction also constitutes a Fundamental Change as
described in clause (i) or (ii) of the definition thereof, subject
to Section 14.07, the Exchange Rate shall be increased by an
additional number of shares of Common Stock (the “Additional
Shares”) as described below, provided that if the Stock Price is
greater than $60.00 or less than $12.00 (subject in each case to
adjustment as described below), the number of Additional Shares
shall be zero. Notwithstanding the foregoing, in no event will the
Exchange Rate be increased pursuant to this Section 14.01(e) to a
rate that would exceed 83.3333 shares, subject to adjustments in the
same manner as the Exchange Rate as set forth in Section 14.05 per
$1,000 Principal Amount of Notes.
(h) Section 14.04 of the Indenture shall be amended by deleting the text of such Section in
its entirety and replacing it with the following text:
Section 14.04. Exchange Rate. Each $1,000 Principal Amount of
the Notes shall be exchangeable into the number of shares of Common
Stock specified in the form of Note (herein called the “Exchange
Rate”) attached as Exhibit A hereto (as of July 27, 2006, 60.6061
shares), subject to adjustment as provided in this Article 14.
(i) Schedule A of the Indenture shall be amended by deleting the text of such Schedule in
its entirety and replacing it with the following text:
The following table sets forth the number of Additional Shares
to be received per $1,000 Principal Amount of Notes pursuant to
Section 14.01(e) of this Indenture:
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Stock Price |
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| Effective Date |
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$12.00 |
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$16.00 |
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$20.00 |
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$24.00 |
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$28.00 |
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$32.00 |
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$36.00 |
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$40.00 |
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$44.00 |
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$48.00 |
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$52.00 |
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$56.00 |
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$60.00 |
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December 15, 2006 |
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22.7273 |
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13.6844 |
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9.2207 |
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7.6839 |
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6.5862 |
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5.7629 |
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5.1226 |
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4.6103 |
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4.1912 |
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3.8420 |
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3.5464 |
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3.2931 |
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0.0000 |
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December 15, 2007 |
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22.7273 |
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11.5151 |
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7.8184 |
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6.5153 |
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5.5845 |
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4.8865 |
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4.3435 |
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3.9092 |
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3.5538 |
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3.2576 |
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3.0071 |
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2.7923 |
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0.0000 |
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December 15, 2008 |
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22.7273 |
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8.9399 |
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5.7870 |
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4.8225 |
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4.1336 |
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3.6169 |
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3.2150 |
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2.8935 |
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2.6305 |
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2.4113 |
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2.2258 |
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2.0668 |
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0.0000 |
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December 15, 2009 |
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22.7273 |
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5.7986 |
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3.1542 |
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2.6285 |
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2.2530 |
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1.9714 |
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1.7523 |
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1.5771 |
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1.4337 |
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1.3143 |
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1.2132 |
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1.1265 |
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0.0000 |
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December 15, 2010 |
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0.000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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0.0000 |
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(j) |
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The first sentence of the Note shall be amended by deleting the text of such
sentence in its entirety and replacing it with the following text: |
CSK Auto, Inc., a corporation duly organized and validly
existing under the laws of the State of Arizona (herein called the
“Company”, which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received
hereby promises to pay to or its registered assigns, [the
Principal Amount of Dollars1 ($ )] [the Principal
Amount of Dollars ($ ) or such amount as is indicated in the
records of the
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Trustee and the Depositary2] on December 15, 2025,
and to pay interest thereon from December 19, 2005 or from the most
recent Interest Payment Date to which Interest has been paid or duly
provided for, on December 15 and June 15 of each year (each, an
“Interest Payment Date”), commencing on June 15, 2006, at the rate
of (i) 4.625% per annum for the period from and including December
19, 2005 to, but excluding July 27, 2006, (ii) 6.75% from and
including July 27, 2006 to, but excluding December 15, 2010, and
(iii) 6.50% per annum thereafter, until the Principal Amount is paid
or made available for payment at December 15, 2025 or upon
acceleration, or until such date on which the Notes are exchanged or
repurchased as provided herein, and at the rate of 6.75% per annum
on any overdue principal and on any overdue installment of Interest. |
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(k) |
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All other references in the Note to “45/8%” shall be changed “63/4%”. |
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(l) |
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The reference in the Note to “49.8473 shares of Common Stock” shall be changed
to “60.6061 shares of Common Stock”. |
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(m) |
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The reference in the Note to “an Exchange Price of approximately $20.06 per
share” shall be changed to “an Exchange Price of approximately $16.50 per share”. |
SECTION 3. Waiver of Defaults and Events of Default. Any existing or past default,
Default or Event of Default arising under the Indenture as a result of a failure to comply with
Sections 4.06, 4.08 and 5.04 of the Indenture (as each Section existed prior to its amendment
pursuant to this Supplemental Indenture) or any acceleration of any Indebtedness in connection
therewith is hereby waived.
SECTION 4. Ratification of Indenture; Supplemental Indentures Part of Indenture.
Except as expressly amended 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
Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
SECTION 5. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Trustee Makes No Representation. The Trustee makes no representation as
to the validity or sufficiency of this Supplemental Indenture.
SECTION 7. Execution in Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
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SECTION 8. Effect of Headings. The titles and headings of the Sections of this
Supplemental Indenture have been inserted for convenience of reference only, and are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 9. Effectiveness. This Supplemental Indenture shall become effective upon
execution by the Company, the Issuer, the Subsidiary Guarantor, and the Trustee.
SECTION 10. Reaffirmation of the Indemnification Obligations under Section 7.06. In
connection with the execution of this Supplemental Indenture, the Company, the Issuer and the
Subsidiary Guarantors hereby reaffirm their respective indemnification obligations in favor of the
Trustee under Section 7.06 of the Indenture.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto have caused this Supplemental Indenture to be
duly executed on its behalf by its duly authorized officer as of the day and year first above
written.
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CSK AUTO, INC. |
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By: /s/ Randi Val Morrison
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Name:
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Randi Val Morrison |
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Title:
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Vice President, General Counsel and Secretary |
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CSK AUTO CORPORATION |
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By: /s/ Randi Val Morrison
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Name:
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Randi Val Morrison |
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Title:
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Vice President, General Counsel and Secretary |
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CSKAUTO.COM, INC. |
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By: /s/ Randi Val Morrison
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Name:
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Randi Val Morrison |
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Title:
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Vice President, General Counsel and Secretary |
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THE BANK OF NEW YORK TRUST
COMPANY, N.A., as Trustee |
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By: /s/ Sandee’ Parks
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Name:
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Sandee’ Parks |
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Title:
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Vice President |
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