Exhibit 4.1
QUALITY DISTRIBUTION,
LLC
and
QD CAPITAL
CORPORATION
as Issuers
the GUARANTORS named in the
Indenture (as defined herein),
and
THE BANK OF NEW YORK
MELLON,
as Trustee
THIRD SUPPLEMENTAL
INDENTURE
Dated as of October 14,
2009
to
Indenture
Dated as of November 13,
2003
9% Senior Subordinated Notes due
2010
THIS THIRD SUPPLEMENTAL INDENTURE,
(this “ Supplemental Indenture ”), dated as of
October 14, 2009 , is by and among QUALITY
DISTRIBUTION, LLC, a Delaware corporation (the “
Company ”), QD CAPITAL CORPORATION, a Delaware
corporation (“ QD Capital ” and together with
the Company, the “ Issuers ”), the Guarantors,
as defined in the Original Indenture (the “ Guarantors
”) and THE BANK OF NEW YORK MELLON (formerly known as The
Bank of New York), as trustee (the “ Trustee
”).
W I T N E S S E T
H
WHEREAS, reference is made to that
certain indenture, dated as of November 13, 2003, between the
Issuers, the Guarantors and the Trustee, as amended and
supplemented by a Supplemental Indenture, dated as of
December 18, 2007, and as further amended and supplemented by
a Second Supplemental Indenture, dated as of August 27, 2009,
between the Company, the Guarantors and the Trustee (the “
Original Indenture ” and as further amended and
supplemented hereby, the “ Indenture ”), with
respect to the Issuers’ 9% Senior Subordinated Notes due 2010
(the “ Notes ”).
WHEREAS, in accordance with
Section 9.2 of the Original Indenture, the Issuers, the
Guarantors and the Trustee may amend or supplement the Original
Indenture with the written consent of the Holder or Holders of at
least a majority in aggregate principal amount of the outstanding
Notes or any Guarantee without notice to any other
Securityholders.
WHEREAS, the Issuers and the
Guarantors desire to amend the Original Indenture in accordance
with Section 9.2 of the Original Indenture and have solicited
consents from the Holders of the Notes to certain amendments to the
Original Indenture pursuant to a Confidential Offering Memorandum
and Consent Solicitation Statement dated August 28, 2009 (the
“ Offer ”);
WHEREAS, the Holders of at least a
majority in aggregate principal amount of outstanding Notes or any
Guarantee have consented in writing to the amendments to the
Original Indenture contained herein; and
WHEREAS, the execution and delivery
of this Supplemental Indenture have been duly authorized by the
parties hereto, and all other acts necessary to make this
Supplemental Indenture a valid and binding supplement to the
Original Indenture effectively amending the Original Indenture as
set forth herein have been duly taken.
NOW, THEREFORE, in consideration of
the foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Issuers, the Guarantors and the Trustee mutually covenant and agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Deletion of
Definitions and Related References . Section 1.01 of the Original Indenture is
hereby amended to delete in their entirety all terms and their
respective definitions for which all references are eliminated in
the Original Indenture as a result of the amendments set forth in
Article II of this Supplemental Indenture.
ARTICLE II
AMENDMENTS
Section 2.1 Amendments to
the Original Indenture . The Original Indenture is hereby amended by
deleting the following sections and clauses, as applicable, of the
Original Indenture and all references to such sections and clauses
in their entirety:
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(i)
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Section 4.
2 (Maintenance of Office or Agency)
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(ii)
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Section 4.3 (Limitation on Restricted
Payments)
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(iii)
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Section 4.4 (Limitation on Incurrence of
Additional Indebtedness)
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(iv)
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Section 4.5 (Corporate
Existence)
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(v)
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Section 4.6 (Payment of Taxes and Other
Claims)
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(vi)
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Section 4.7 (Maintenance of Properties and
Insurance)
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(vii)
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Section 4.8 (Compliance Certificate; Notice
of Default)
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(viii)
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Section 4.9 (Compliance with
Laws)
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(ix)
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Section 4.10 (Reports to
Holders)
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(x)
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Section 4.11 (Waiver of Stay, Extension or
Usury Laws)
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(xi)
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Section 4.12 (Limitations on Transactions
with Affiliates)
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(xii)
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Section 4.13 (Limitations on Dividend and
Other Payment Restrictions)
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(xiii)
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Section 4.14 (Limitation on Issuances of
Guarantees by Restricted Subsidiaries)
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(xiv)
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Section 4.15 (After-Acquired
Property)
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(xv)
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Section 4.16 (Change of Control)
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(xvi)
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Section 4.17 (Limitation on Asset
Sales)
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(xvii)
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Section 4.18 (Prohibition on Incurrence of
Senior Subordinated Debt)
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(xviii)
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Section 4.19 (Future Guarantors)
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(xix)
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Section 5.1 (Merger, Consolidation and Sale
of Assets - deleting clauses (a)(ii), (a)(iii), (a)(iv), (c)(iii)
and (c)(iv) only)
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(xx)
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Section 6.1 (Events of Default - deleting
clauses (iii), (iv), (v), (vi), (vii) and
(viii) only)
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ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.1 Indenture
. Except as amended
hereby, the Original 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
under the Original Indenture shall be bound by the Indenture as
amended hereby. Subject to Sections 9.3 and 11.1 of the Indenture,
in the case of conflict between the Original Indenture and this
Supplemental Indenture, the provisions of this Supplemental
Indenture shall contro
