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Exhibit
10.4
CSK AUTO,
INC.
4
5 /
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 4
5 / 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) |
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) |
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) |
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) |
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) |
Section 5.04 of the Indenture shall be amended by
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