EXHIBIT 4(a)
FIRST AMENDMENT TO INDENTURE
This First Amendment to Indenture (this "First Amendment") is entered
into effective as of February 18, 1997 by and between Xxxxxxxxxx Electronics,
Ltd., a Delaware corporation (the "Company"), and First Trust National
Association, as Trustee (the "Trustee").
RECITALS
A. The Company and the Trustee (as successor trustee to Continental
Illinois National Bank and Trust Company of Chicago) are parties to that
certain Indenture dated as of December 15, 1986, pursuant to which the
Trustee is acting as trustee in connection with the Company's 7-1/4%
Convertible Subordinated Debentures due December 15, 2006 (the "Indenture").
B. The Company desires to modify and amend certain provisions of the
Indenture, and the Trustee, having received the written consent to such
modifications and amendments from the holders of a majority of the principal
amount of the outstanding 7-1/4% Convertible Subordinated Debentures due
December 15, 2006 of the Company, is willing to enter into such modifications
and amendments, as set forth herein.
AGREEMENT
For and in consideration of the mutual benefits to be received and other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Company and Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the
holders of the 7-1/4% Convertible Subordinated Debentures due December 15,
2006 of the Company:
1. Unless otherwise indicated herein, capitalized terms used in this
First Amendment have the meaning set forth in the Indenture.
2. The Indenture is hereby amended as follows:
2.1 Section 4.02 is hereby deleted in its entirety and the
following is inserted in lieu thereof:
"SECTION 4.02. Limitation on Dividends and Stock Purchases.
The Company may not declare or pay any dividend or make any
distribution on its capital stock or to its shareholders
(other than dividends or distributions payable in its capital
stock) or purchase, redeem or otherwise acquire or retire
for value, or permit any Subsidiary to purchase or otherwise
acquire for value, any capital stock of the Company (i) if at
the time of such action an Event of Default shall have
occurred and be continuing, or occur as a consequence of any
such action, or (ii) if, upon giving effect to such
dividend, distribution, purchase, redemption, or other
acquisition or retirement, the aggregate amount expended for
all such purposes (the amount expended for such purposes, if
other than in cash, to be determined by the Board of
Directors, whose determination shall be conclusive and evidenced
by a resolution of the Board of Directors filed with the
Trustee) subsequent to May 31, 1996, shall exceed the sum of
(a) the aggregate Consolidated Net Income (or, in case such
aggregate Consolidated Net Income shall be a deficit, minus
such deficit) of the Company earned on a cumulative basis
subsequent to May 31, 1996, (b) the aggregate net proceeds,
including the fair market value of property other than cash
(as determined by the Board of Directors, whose determination
shall be conclusive and evidenced by a resolution of the Board
of Directors filed with the Trustee), received by the
Company from the issue or sale, other than to a subsidiary,
after May 31, 1996 of capital stock of the Company, (c) the
aggregate net proceeds received by the Company from the issue
or sale, other than to a subsidiary, of any indebtedness
(including the Securities) of the Company issued subsequent to
May 31, 1996 which has been converted into capital stock of
the Company, plus (d) $20,000,000; provided, however, that
such provisions will not prevent (i) the payment of any
dividend within 60 days after the date of declaration if the
payment complied with the foregoing provisions on the date
of declaration, (ii) the retirement of any shares of the
Company's capital stock by exchange for, or out of the
proceeds of, the substantially concurrent sale of other
shares of its capital stock, including without limitation,
the conversion of the Company's Class B Common Stock, $.05
par value, ("Class B Common Stock"), or (iii) the call for
redemption of any convertible preferred stock of the Company
under an agreement with a responsible underwriter designed to
insure that all such stock is converted rather than
redeemed."
2.2 Section 6.01(4) is hereby deleted in its entirety and the
following is inserted in lieu thereof:
"(4) the happening of an event of default as defined in any
mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced
any Indebtedness of the Company or any Subsidiary,
whether such Indebtedness now exists or shall
hereafter be created, which event of default shall have
caused in any one case or in the aggregate in excess of
$5,000,000 aggregate principal amount of such
Indebtedness to become due and payable prior to the date
on which it would otherwise have become due and
payable, without such acceleration being rescinded,
annulled or otherwise cured within the period and after
the notice specified below;"
3. Except as amended hereby, the Indenture is unchanged and remains in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed as of the day and year first above written.
XXXXXXXXXX ELECTRONICS, LTD.,
a Delaware corporation
By:
Xxxxxx X. Xxxxxxxxxx
Its: Chairman
Attest
Xxxxxxx X. Xxxxx, Secretary
FIRST TRUST NATIONAL ASSOCIATION,
as Trustee
By:
Its: Vice President
Attest
Assistant Secretary
