FIRST SUPPLEMENTAL INDENTURE Dated as of May 30, 2007 to INDENTURE Dated as of November 16, 2006 by and among SALLY HOLDINGS LLC and SALLY CAPITAL INC., as Co-Issuers, the SUBSIDIARY GUARANTORS named therein, as Subsidiary Guarantors, and WELLS FARGO...
Exhibit 4.2
Dated as of May 30, 2007
to
INDENTURE
Dated as of November 16, 2006
by and among
XXXXX HOLDINGS LLC
and
XXXXX CAPITAL INC.,
as Co-Issuers,
the
SUBSIDIARY GUARANTORS named therein,
as Subsidiary Guarantors,
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
9.25% SENIOR NOTES DUE 2014
This FIRST SUPPLEMENTAL INDENTURE, dated as of May 30, 2007 (this "Supplemental Indenture"), by and among Xxxxx Holdings LLC, a Delaware limited liability company (the "Company"), Xxxxx Capital Inc., a Delaware corporation (the "Co-Issuer" and, together with the Company, the "Issuers"), Design Lengths, Inc., a Delaware corporation ("Design Lengths"), Power IQ, Inc., a Delaware corporation ("Power IQ"), Salon Success International, LLC, a Florida limited liability company ("Salon Success"), Soren Enterprises, Inc., a Delaware corporation ("Soren Enterprises" and together with Design Lengths, Power IQ and Salon Success, the "New Subsidiary Guarantors"), and each of the subsidiary guarantors under the Indenture referred to below and identified on Schedule A attached hereto (collectively, the "Existing Guarantors"), and Xxxxx Fargo Bank, National Association, as Trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuers, the Existing Guarantors, Pacific Salon Systems, Inc., a Washington corporation ("Pacific Salon"), XRG Enterprises, Inc., a California corporation ("XRG") and the Trustee have heretofore become parties to an Indenture, dated as of November 16, 2006 (as amended, supplemented, waived or otherwise modified, the "Indenture"), providing for the issuance of 9.25% Senior Notes due 2014 of the Issuers (the "Notes");
WHEREAS, all of the Existing Guarantors identified on Schedule A to this Supplemental Indenture are currently Subsidiary Guarantors under the Indenture;
WHEREAS, Pacific Salon merged and consolidated with and into Innovations—Successful Salon Services, a California corporation ("Innovations"), whereby Innovations became the surviving entity, and XRG merged and consolidated with and into Innovations, whereby Innovations became the surviving entity;
WHEREAS, pursuant to Section 1303 of the Indenture, upon the merger or consolidation of any Subsidiary Guarantor with and into the Company or another Subsidiary Guarantor that is the surviving Person in such merger or consolidation, then such Subsidiary Guarantor will automatically and unconditionally be released from all obligations under its Subsidiary Guarantee, and such Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect;
WHEREAS, the New Subsidiary Guarantors are indirect, wholly-owned subsidiaries of the Company;
WHEREAS, the New Subsidiary Guarantors are Restricted Subsidiaries under the Indenture;
WHEREAS, Sections 414 and 1308 of the Indenture provide that the Company is required to cause the New Subsidiary Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Subsidiary Guarantors shall guarantee the Issuers' Subsidiary Guaranteed Obligations under the Notes pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein and in Article XIII of the Indenture;
WHEREAS, each New Subsidiary Guarantor desires to enter into this Supplemental Indenture for good and valuable consideration, including substantial economic benefit in that the financial performance and condition of the New Subsidiary Guarantors is dependent on the financial performance and condition of the Issuers, the obligations hereunder of which the New Subsidiary Guarantors have guaranteed, and on the New Subsidiary Guarantors' access to working capital through the Company's access to revolving credit borrowings under the Senior Credit Agreements; and
WHEREAS, pursuant to Section 901 of the Indenture, the parties hereto are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without the consent of any Holder.
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NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Subsidiary Guarantors, the Issuers, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the Notes as follows:
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.
2. Release of Certain Subsidiary Guarantees. Pursuant to Section 1303 of the Indenture, each of Pacific Salon and XRG is released from all obligations under its Subsidiary Guarantee, and Pacific Salon's and XRG's Subsidiary Guarantee shall thereupon terminate and be discharged and of no further force or effect.
3. Agreement to Guarantee. Upon the execution of this Supplemental Indenture, each of the New Subsidiary Guarantors shall become and each of the Existing Guarantors shall continue to be, a "Subsidiary Guarantor" under and as defined in the Indenture. Each New Subsidiary Guarantor hereby agrees, jointly and severally with any other New Subsidiary Guarantors and Existing Guarantors and fully and unconditionally, to guarantee the Subsidiary Guaranteed Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in Article XIII of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a "Subsidiary Guarantor" under the Indenture. The Subsidiary Guarantee of each New Subsidiary Guarantor is subject to the subordination provisions of the Indenture.
4. Termination, Release and Discharge. Each New Subsidiary Guarantor's Subsidiary Guarantee shall terminate and be of no further force or effect, and each New Subsidiary Guarantor shall be released and discharged from all obligations in respect of such Subsidiary Guarantee, as and when provided in Section 1303 of the Indenture.
5. Parties. Nothing in this Supplemental Indenture is intended or shall be construed to give any Person, other than the Holders and the Trustee, any legal or equitable right, remedy or claim under or in respect of each New Subsidiary Guarantor's Subsidiary Guarantee or any provision contained herein or in Article XIII of the Indenture.
6. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE TRUSTEE, THE COMPANY, THE CO-ISSUER, ANY OTHER OBLIGOR IN RESPECT OF THE NOTES AND (BY THEIR ACCEPTANCE OF THE NOTES) THE HOLDERS AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE.
7. 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. The Trustee makes no representation or warranty as to the validity or sufficiency of this Supplemental Indenture or as to the accuracy of the recitals to this Supplemental Indenture.
8. Counterparts. The parties hereto may sign one or more copies of this Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.
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9. Headings. The Section headings herein are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| COMPANY: | |||
XXXXX HOLDINGS LLC |
|||
By: |
/s/ XXXX X. XXXXXXXXXXXX |
||
| Name: | Xxxx X. Xxxxxxxxxxxx | ||
| Title: | President and Chief Executive Officer | ||
CO-ISSUER: |
|||
XXXXX CAPITAL INC. |
|||
By: |
/s/ XXXX X. XXXXXXXXXXXX |
||
| Name: | Xxxx X. Xxxxxxxxxxxx | ||
| Title: | President and Chief Executive Officer | ||
NEW SUBSIDIARY GUARANTORS: |
|||
DESIGN LENGTHS, INC. |
|||
By: |
/s/ XXXX X. XXXX |
||
| Name: | Xxxx X. Xxxx | ||
| Title: | Secretary | ||
POWER IQ, INC. |
|||
By: |
/s/ XXXX X. XXXX |
||
| Name: | Xxxx X. Xxxx | ||
| Title: | Secretary | ||
SALON SUCCESS INTERNATIONAL, LLC |
|||
By: |
/s/ XXXX X. XXXXXXXXXXXX |
||
| Name: | Xxxx X. Xxxxxxxxxxxx | ||
| Title: | President and Chief Executive Officer | ||
S-1
SOREN ENTERPRISES, INC. |
|||
By: |
/s/ XXXX X. XXXX |
||
| Name: | Xxxx X. Xxxx | ||
| Title: | Secretary | ||
S-2
EXISTING GUARANTORS: |
|||
XXXXXXXXX-XXXXXX HOLDINGS, INC. XXXXXXXXX-XXXXXX HOLDINGS, L.L.C. XXXXXXXXX XXXXXX MANAGEMENT, X.X. XXXXXX'X, INC. BEAUTY HOLDING LLC BEAUTY SYSTEMS GROUP LLC BEYOND THE ZONE, INC. BRENTWOOD BEAUTY LABORATORIES INTERNATIONAL, INC. COLORESSE, INC. DIORAMA SERVICES COMPANY, LLC ENERGY OF BEAUTY, INC. ESTHETICIAN SERVICES, INC. FOR PERMS ONLY, INC. HIGH INTENSITY PRODUCTS, INC. INNOVATIONS-SUCCESSFUL SALON SERVICES ION PROFESSIONAL PRODUCTS, INC. LADY XXXX ENTERPRISES, INC. LAND OF DREAMS, INC. LOME BEAUTY INTERNATIONAL, INC. MIRACLE LANE, INC. MODERN PANACHE, INC. NAIL LIFE, INC. NEKA SALON SUPPLY, INC. NEW IMAGE PROFESSIONAL PRODUCTS, INC. PROCARE LABORATORIES, INC. XXXXX BEAUTY DISTRIBUTION LLC XXXXX BEAUTY DISTRIBUTION OF OHIO, INC. XXXXX BEAUTY INTERNATIONAL FINANCE LLC XXXXX BEAUTY SUPPLY LLC SATIN STRANDS, INC. SEXY U PRODUCTS, INC. SILK ELEMENTS, INC. TANWISE, INC. VENETIAN BLENDS, INC. |
|||
By: |
/s/ XXXX X. XXXX |
||
| Name: | Xxxx X. Xxxx | ||
| Title: | Secretary | ||
S-3
XXXXXXXXX XXXXXX X.X. |
|||
By: |
Xxxxxxxxx XxXxxx Management, L.C., its General Partner |
||
By: |
/s/ XXXX X. XXXX |
||
| Name: | Xxxx X. Xxxx | ||
| Title: | Secretary | ||
S-4
TRUSTEE: |
|||
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Trustee |
|||
By: |
/s/ XXXXXX X. X'XXXXXXX |
||
| Name: | Xxxxxx X. X'Xxxxxxx | ||
| Title: | Vice President | ||
S-5
Schedule A
Existing Guarantors
| Name of Existing Guarantor as Specified in its Charter/Constituent Documents |
State or Jurisdiction of Incorporation or Organization |
|
|---|---|---|
| Xxxxxxxxx XxXxxx Holdings, Inc | Texas | |
| Xxxxxxxxx XxXxxx Holdings, L.L.C | Delaware | |
| Xxxxxxxxx XxXxxx, X.X | Texas | |
| Xxxxxxxxx XxXxxx Management L.C | Texas | |
| Xxxxxx'x, Inc | Arkansas | |
| Beauty Holding LLC | Delaware | |
| Beauty Systems Group LLC | Delaware | |
| Beyond the Zone, Inc | Delaware | |
| Brentwood Beauty Laboratories International, Inc | Texas | |
| Coloresse, Inc | Delaware | |
| Diorama Services Company, LLC | Delaware | |
| Energy of Beauty, Inc | Delaware | |
| Esthetician Services, Inc | Delaware | |
| For Perms Only, Inc | Delaware | |
| High Intensity Products, Inc | Delaware | |
| Innovations—Successful Salon Services | California | |
| Ion Professional Products, Inc | Delaware | |
| Lady Xxxx Enterprises, Inc | Delaware | |
| Land of Dreams, Inc | Delaware | |
| Lome Beauty International, Inc | Delaware | |
| Miracle Lane, Inc | Delaware | |
| Modern Panache, Inc | Delaware | |
| Nail Life, Inc | Delaware | |
| Neka Salon Supply, Inc | New Hampshire | |
| New Image Professional Products, Inc | Delaware | |
| Procare Laboratories, Inc | Delaware | |
| Xxxxx Beauty Distribution LLC | Delaware | |
| Xxxxx Beauty Distribution of Ohio, Inc | Delaware | |
| Xxxxx Beauty International Finance LLC | Delaware | |
| Xxxxx Beauty Supply LLC | Delaware | |
| Satin Strands, Inc | Delaware | |
| Sexy U Products, Inc | Delaware | |
| Silk Elements, Inc | Delaware | |
| Tanwise, Inc | Delaware | |
| Venetian Blends, Inc | Delaware |
