Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY SUBSIDIARY GUARANTOR
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
April 28, 2006 among Bargain Network, Inc., Lavalife Inc., My Choice Medical
Holdings, Inc., each a Delaware corporation, and MemberWorks Canada Corporation,
a Nova Scotia corporation (the "Additional Subsidiary Guarantors"), the current
Guarantors of the Notes, Vertrue Incorporated, a Delaware corporation (the
"Company"), and LaSalle Bank National Association, as trustee (the "Trustee").
WITNESSETH
WHEREAS, the Company and certain of its Subsidiaries have heretofore
executed and delivered to the Trustee an indenture dated as of April 13, 2004
(the "Base Indenture"), providing for the issuance of an unlimited amount of 9
1/4% Senior Notes due 2014 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Additional Subsidiary Guarantors will execute and deliver to the Trustee a
supplemental indenture pursuant to which the Additional Subsidiary Guarantors
will guarantee the Company's payment Obligations (as defined in the Indenture)
under the Indenture and the Notes (the "Subsidiary Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Additional Subsidiary Guarantors and the Trustee mutually covenant and agree for
the equal and ratable benefit of the Holders as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition will
have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Additional Subsidiary Guarantor hereby
agrees as follows:
(a) Such Additional Subsidiary Guarantor, jointly and severally with all
other current and future guarantors of the Notes (collectively, the
"Guarantors" and each, a "Guarantor"), unconditionally guarantees to
each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, regardless of the
validity and enforceability of the Indenture, the Notes or the
Obligations of the Company under the Indenture or the Notes, that:
(i) the principal of, interest, premium and Liquidated Damages, if
any, on the Notes will be promptly paid in full when due, whether
at maturity, by acceleration, redemption or otherwise, and
interest on the overdue principal of, interest, premium and
Liquidated Damages, if any, on the Notes, to the extent lawful,
and all other Obligations of the Company to the Holders or the
Trustee thereunder or under the Indenture will be promptly paid
in full, all in accordance with the terms thereof; and
(ii) in case of any extension of time for payment or renewal of any
Notes or any of such other Obligations, that the same will be
promptly paid in full when due in accordance with the terms of
the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
(b) Notwithstanding the foregoing, in the event that this Subsidiary
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the
liability of such Additional Subsidiary Guarantor under this
Supplemental Indenture and its Subsidiary Guarantee shall be reduced
to the maximum amount permissible under such fraudulent conveyance or
similar law.
3. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEES.
(a) To evidence its Subsidiary Guarantee set forth in this Supplemental
Indenture, such Additional Subsidiary Guarantor hereby agrees that a
notation of such Subsidiary Guarantee substantially in the form of
Exhibit C to the Indenture will be endorsed by an officer of such
Subsidiary Guarantor on each Note authenticated and delivered by the
Trustee after the date hereof.
(b) Notwithstanding the foregoing, such Additional Subsidiary Guarantor
hereby agrees that its Subsidiary Guarantee set forth herein will
remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee.
(c) If an Officer whose signature is on this Supplemental Indenture or on
the Subsidiary Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which a Subsidiary Guarantee is
endorsed, the Subsidiary Guarantee will be valid nevertheless.
(d) The delivery of any Note by the Trustee, after the authentication
thereof under the Indenture, will constitute due delivery of the
Subsidiary Guarantee set forth in this Supplemental Indenture on
behalf of each Additional Subsidiary Guarantor.
(e) Each Additional Subsidiary Guarantor hereby agrees that its
Obligations hereunder will be unconditional, regardless of the
validity, regularity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
2
(f) Each Additional Subsidiary Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that its Subsidiary Guarantee made
pursuant to this Supplemental Indenture will not be discharged except
by complete performance of the Obligations contained in the Notes and
the Indenture.
(g) If any Holder or the Trustee is required by any court or otherwise to
return to the Company or any Additional Subsidiary Guarantor, or any
custodian, Trustee, liquidator or other similar official acting in
relation to either the Company or such Additional Subsidiary
Guarantor, any amount paid by either to the Trustee or such Holder,
the Subsidiary Guarantee made pursuant to this Supplemental Indenture,
to the extent theretofore discharged, will be reinstated in full force
and effect.
(h) Each Additional Subsidiary Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in
respect of any Obligations guaranteed hereby until payment in full of
all Obligations guaranteed hereby. Each Additional Subsidiary
Guarantor further agrees that, as between such Additional Subsidiary
Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand:
(i) the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the
purposes of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby; and
(ii) in the event of any declaration of acceleration of such
Obligations as provided in Article 6 of the Indenture, such
Obligations (whether or not due and payable) will forthwith
become due and payable by such Additional Subsidiary Guarantor
for the purpose of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture.
(i) Each Additional Subsidiary Guarantor will have the right to seek
contribution from any other non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders or
the Trustee under the Subsidiary Guarantee made pursuant to this
Supplemental Indenture.
4. ADDITIONAL SUBSIDIARY GUARANTOR MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
3
(a) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding sections 10.03(b) and (c) of the Indenture, nothing
contained in the Indenture, this Supplemental Indenture or in the
Notes will prevent any consolidation or merger of any Additional
Subsidiary Guarantor with or into the Company or any other Guarantor
or will prevent any transfer, sale or conveyance of the property of
any Additional Subsidiary Guarantor as an entirety or substantially as
an entirety to the Company or any other Guarantor.
(b) Except as set forth in Section 10.04 of the Indenture, no Additional
Subsidiary Guarantor may sell or otherwise dispose of all or
substantially all of its assets to, or consolidate with or merge with
or into (whether or not such Additional Subsidiary Guarantor is the
surviving Person), another Person, other than the Company or another
Guarantor, unless: (i) immediately after giving effect to such
transaction, no Default or Event of Default exists and (ii) either (A)
subject to Section 10.04 of the Indenture, the Person acquiring the
property in any such sale or disposition or the Person formed by or
surviving any such consolidation or merger unconditionally assumes all
the obligations of that Additional Subsidiary Guarantor, pursuant to a
supplemental indenture in form and substance reasonably satisfactory
to the Trustee, under the Indenture and the Subsidiary Guarantee on
the terms set forth in the Indenture or such Subsidiary Guarantee, as
the case may be, and (B) the Net Proceeds of such sale or other
disposition are applied in accordance with the applicable provisions
of the Indenture, including without limitation, Section 4.10 thereof.
(c) In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Subsidiary Guarantee made pursuant to this
Supplemental Indenture and the due and punctual performance of all of
the covenants and conditions of the Indenture and this Supplemental
Indenture to be performed by such Subsidiary Guarantor, such successor
Person will succeed to and be substituted for such Additional
Subsidiary Guarantor with the same effect as if it had been named
herein as the Additional Subsidiary Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Subsidiary
Guarantees to be endorsed upon the Notes issuable under the Indenture
which theretofore have not been signed by the Company and delivered to
the Trustee. All the Subsidiary Guarantees so issued will in all
respects have the same legal rank and benefit under the Indenture and
this Supplemental Indenture as the Subsidiary Guarantees theretofore
and thereafter issued in accordance with the terms of the Indenture
and this Supplemental Indenture as though all of such Subsidiary
Guarantees had been issued at the date of the execution hereof.
5. RELEASES.
4
(a) In the event of any sale or other disposition of all or substantially
all of the assets of any Additional Subsidiary Guarantor, by way of
merger, consolidation or otherwise, or a sale or other disposition of
all of the Capital Stock of any Additional Subsidiary Guarantor, in
each case to a Person that is not (either before or after giving
effect to such transactions) a Subsidiary of the Company, if the sale
or other disposition complies with Section 4.10 and the other
applicable provisions of the Indenture, then such Additional
Subsidiary Guarantor (in the event of a sale or other disposition, by
way of merger, consolidation or otherwise, of all of the Capital Stock
of such Additional Subsidiary Guarantor) or the Person acquiring the
property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released
and relieved of any Obligations under its Subsidiary Guarantee;
provided that the Net Proceeds of such sale or other disposition are
applied in accordance with the applicable provisions of the Indenture,
including without limitation Section 4.10 of the Indenture and is not
in violation of any other provisions under the Indenture. Upon
delivery by the Company to the Trustee of an Officers' Certificate and
an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions
of the Indenture, including without limitation Section 4.10 of the
Indenture, the Trustee will execute any documents reasonably required
in order to evidence the release of any Additional Subsidiary
Guarantor from its obligations under its Subsidiary Guarantee. Any
Additional Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee will remain liable for the full amount
of principal of, interest, premium and Liquidated Damages, if any, on
the Notes and for the other obligations of any Additional Subsidiary
Guarantor under the Indenture as provided in Article 10 thereof.
(b) If the Company designates any Restricted Subsidiary that is an
Additional Subsidiary Guarantor as an Unrestricted Subsidiary in
accordance with the applicable provisions of the Indenture, such
Additional Subsidiary Guarantor will be released and relieved of its
obligations under its Subsidiary Guarantee. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such designation of such Additional
Subsidiary Guarantor as an Unrestricted Subsidiary was made by the
Company in accordance with the provisions of the Indenture, including
without limitation Section 4.07 of the Indenture, the Trustee will
execute any documents reasonably required in order to evidence the
release of such Additional Subsidiary Guarantor from its obligations
under its Subsidiary Guarantee. Any Additional Subsidiary Guarantor
not released from its obligations under its Subsidiary Guarantee will
remain liable for the full amount of principal of, interest, premium
and Liquidated Damages, if any, on the Notes and for the other
obligations of any Guarantor under the Indenture as provided in
Article 10 of the Indenture.
5
(c) In connection with any Legal Defeasance or Covenant Defeasance of the
Notes in accordance with, and subject to Article 8 of the Indenture,
each Additional Subsidiary Guarantor shall be released and relieved of
its obligations under this Supplemental Indenture in accordance with,
and subject to, Article 8 of the Indenture.
(d) In the event an Additional Subsidiary Guarantor no longer Guarantees
Obligation under any Credit Facilities of the Company, such Additional
Subsidiary Guarantor will be released and relieved of its Obligations
under its Subsidiary Guarantee. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an Opinion of Counsel to the
effect that such Additional Subsidiary Guarantor no longer Guarantees
Obligations under any Credit Facilities of the Company, the Trustee
will execute any documents reasonably required in order to evidence
the release of any Additional Subsidiary Guarantor from its
obligations under its Subsidiary Guarantee. Any Additional Subsidiary
Guarantor not released from its obligations under its Subsidiary
Guarantee will remain liable for the full amount of principal of,
interest, premium and Liquidated Damages, if any, on the Notes and for
the other obligations of any Guarantor under the Indenture as provided
in Article 10 of the Indenture.
6. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator
or stockholder of any Additional Subsidiary Guarantor, as such, will have any
liability for any Obligations of the Company or any Additional Subsidiary
Guarantor under the Notes, any Subsidiary Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Subsidiary Guarantees. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
7. NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy will be an original, but all of them
together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and will not affect the construction hereof.
10. THE TRUSTEE. The Trustee will not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Subsidiary Guarantors and the Company.
[SIGNATURE PAGES FOLLOW]
6
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: April 28, 2006
VERTRUE INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: President
Guarantors:
BARGAIN NETWORK, INC.
LAVALIFE INC.
MY CHOICE MEDICAL HOLDINGS, INC.
MEMBERWORKS CANADA CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Treasurer
7
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BILLING SERVICES INTERNATIONAL, INC.
BEST BENEFITS, INC.
IMPAC MARKETING CORP.
XXXXXXXXXXXXXXXX.XXX, INC.
COUNTRYWIDE DENTAL, INC.
MEMBERWORKS CANADA LLC
QUOTA PHONE, INC.
DISCOUNT DEVELOPMENT SERVICES, LLC
UNICARE, INC.
XXXXXXXXX & COMPANY INC.
MEMBERWORKS CANADA HOLDCO, INC.
LAVALIFE CORP.
INTERACTIVE MEDIA GROUP (USA) LTD.
INTERACTIVE MEDIA CONSOLIDATED, INC.
INTERACTIVE VOICE MEDIA BALTIMORE LLC
INTERACTIVE VOICE MEDIA COLORADO LLC
INTERACTIVE VOICE MEDIA GEORGIA LLC
INTERACTIVE VOICE MEDIA MICHIGAN LLC
INTERACTIVE VOICE MEDIA NEW JERSEY LLC
INTERACTIVE VOICE MEDIA NEW YORK LLC
INTERACTIVE VOICE MEDIA OHIO LLC
INTERACTIVE VOICE MEDIA PENNSYLVANIA LLC
LAVALIFE WASHINGTON DC LLC
INTERACTIVE (TX) VOICE MEDIA CORP.
INTERACTIVE LA VOICE MEDIA CORP.
INTERACTIVE MEDIA (IL) CORP.
INTERACTIVE MEDIA MO CORP.
INTERACTIVE SJ VOICE MEDIA CORP.
INTERACTIVE VOICE MEDIA (CA) CORP.
INTERACTIVE VOICE MEDIA (MN) CORP.
INTERACTIVE VOICE MEDIA (SACRAMENTO) CORP.
XXXXXX HOLDING CORP.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Officer
8
