EXHIBIT 4.1
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SECOND SUPPLEMENTAL INDENTURE
This "SUPPLEMENTAL INDENTURE", dated as of April 19, 2007, to the
Indenture dated as of December 15, 2005 as supplemented by the First
Supplemental Indenture dated as of October 6, 2006 (as supplemented, the
"INDENTURE") among Xxxxxx American Corp. (the "COMPANY"), B2Direct, Inc.,
Checks in the Mail, Inc., Xxxxxx American Checks, Inc. (collectively, the
"GUARANTORS") and The Bank of New York, a New York banking corporation, as
trustee under the Indenture (the "TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Company, the Guarantors and the Trustee have heretofore
executed and delivered the Indenture, providing for the issuance of 11.75%
Senior Notes due 2013 (the "NOTES");
WHEREAS, Section 9.02 of the Indenture provides that the Company, the
Guarantors and the Trustee may, with the requisite consents of the holders,
enter into a supplemental indenture for the purpose of amending certain
provisions of the Indenture;
WHEREAS, the Company has offered to purchase for cash any and all of
the outstanding Notes upon the terms and subject to the conditions set forth in
the Offer to Purchase and Consent Solicitation Statement, dated April 5, 2007
(as the same may be amended or supplemented from time to time, the
"STATEMENT"), and in the related Consent and Letter of Transmittal (as the same
may be amended or supplemented from time to time, together with the Statement,
the "OFFER"), from each Holder of such Notes;
WHEREAS, the Offer is conditioned upon, among other things, certain
amendments to the Indenture and to the Notes set forth in Article Two, Article
Three and Article Four of this Supplemental Indenture (the "AMENDMENTS") having
been approved by Holders of at least a majority of the outstanding principal
amount of the Notes (and a supplemental indenture in respect thereof having
been executed and delivered), provided that the Amendments will become
operative once at least a majority in principal amount of the outstanding Notes
issued under the Indenture are accepted for purchase pursuant to the Offer at
one or more settlement dates (the "ACCEPTANCE");
WHEREAS, the Company has received and delivered to the Trustee the
consents from Holders of a majority of the outstanding principal amount of the
Notes to effect the Amendments;
WHEREAS, each of the Company and the Guarantors have been authorized by
resolutions of their Boards of Directors to enter into this Supplemental
Indenture; and
WHEREAS, all acts, conditions, proceedings and requirements necessary
to make this Supplemental Indenture a valid, binding and legal agreement
enforceable in accordance with its terms for the purposes expressed herein, in
accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, the Company, the Guarantors and the
Trustee hereby agree as follows:
ARTICLE ONE
SECTION 1.01. DEFINITIONS.
Capitalized terms used in this Supplemental Indenture and not otherwise
defined herein shall have the meanings assigned to such terms in the Indenture.
ARTICLE TWO
SECTION 2.01. AMENDMENTS TO TABLE OF CONTENTS.
The Table of Contents of the Indenture is amended by deleting the
titles to Sections 3.09, 4.03 through and including 4.16, 4.18 and 4.20, and
inserting, in each case, in lieu thereof, the phrase "[deleted pursuant to
Second Supplemental Indenture]".
ARTICLE THREE
SECTION 3.01. ELIMINATION OF CERTAIN DEFINITIONS IN ARTICLE 1.
Sections 1.01 and 1.02 of the Indenture are amended by deleting all
definitions of terms, and references to definitions of terms, that are used
exclusively in text of the Indenture and the Notes that are being otherwise
eliminated by this Supplemental Indenture.
SECTION 3.02. ELIMINATION OF CERTAIN PROVISIONS IN ARTICLE 3.
Article 3 of the Indenture is amended by deleting the text of Section
3.09 in its entirety and inserting, in lieu thereof, the phrase "[deleted
pursuant to Second Supplemental Indenture]".
SECTION 3.03. ELIMINATION AND AMENDMENT OF CERTAIN PROVISIONS IN ARTICLE 4.
(a) Article 4 of the Indenture is amended by deleting the
text of each of Sections 4.03 through and including 4.16, 4.18 and 4.20 in its
entirety and inserting, in each case, in lieu thereof, the phrase "[deleted
pursuant to Second Supplemental Indenture]".
(b) Article 4 of the Indenture is amended by deleting the
text of Section 4.19 in its entirety and inserting, in lieu thereof, the
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following text: "The Board of Directors of the Company may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary by providing the Trustee
with a certified copy of a resolution of the Board of Directors giving effect
to such designation."
SECTION 3.04. AMENDMENT OF CERTAIN PROVISIONS IN ARTICLE 5.
(a) Section 5.01 of the Indenture is amended by deleting
the text of each of clauses (3) and (4) in its entirety and, in each case,
inserting in lieu thereof the phrase "[deleted pursuant to Second Supplemental
Indenture]".
(b) Section 5.01 of the Indenture is further amended by
deleting the text of clause (1)(B) in its entirety and inserting in lieu
thereof the following text: "the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition has been made is a Person
organized or existing under the laws of the United States, any state of the
United States or the District of Columbia (provided that if such entity is not
a corporation, a corporate co-obligor will become a co-issuer of the Notes and
assume all the obligations of the Company under the Notes, this Indenture and
the Registration Rights Agreement pursuant to agreements reasonably
satisfactory to the Trustee);".
SECTION 3.05. AMENDMENT OF CERTAIN PROVISIONS IN ARTICLE 6.
Section 6.01 of the Indenture is amended by deleting the text of each
of clauses (3) through and including (6) in its entirety and, in each case,
inserting in lieu thereof the phrase "[deleted pursuant to Second Supplemental
Indenture]".
SECTION 3.06. DELETION OF RELEVANT CROSS-REFERENCES THROUGHOUT THE INDENTURE.
The Indenture is amended by deleting the text of any cross-references
to any clauses or provisions that have been deleted pursuant to this
Supplemental Indenture.
ARTICLE FOUR
SECTION 4.01. ELIMINATION AND AMENDMENT OF CERTAIN PROVISIONS IN THE NOTES.
(a) Each of the outstanding Notes and the forms of Note
attached as Exhibits A-1 and A-2 to the Indenture is amended by deleting the
text of Section (7) in its entirety and inserting, in lieu thereof, the phrase
"[deleted pursuant to Second Supplemental Indenture]".
(b) Section (12) of each of the outstanding Notes and the
forms of Note attached as Exhibits A-1 and A-2 to the Indenture is amended by
deleting the text of each of clauses (iii) through and including (vi) in their
entirety and inserting, in each case, in lieu thereof, the phrase "[deleted
pursuant to Second Supplemental Indenture]".
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ARTICLE FIVE
SECTION 5.01. EFFECTIVENESS OF AMENDMENTS TO INDENTURE.
Notwithstanding any other provision of this Supplemental Indenture, (i)
this Supplemental Indenture shall be effective upon its signing by the parties
hereto but (ii) the Amendments shall become operative concurrently with the
Acceptance.
SECTION 5.02. NEW YORK LAW TO GOVERN.
The internal law of the State of New York shall govern and be used to
construe this Supplemental Indenture.
SECTION 5.03. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 5.04. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
SECTION 5.05. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Supplemental Indenture limits, qualifies or
conflicts with any provision of the Trust Indenture Act that may not be so
limited, qualified or conflicted with, such provision of such Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of such Act shall be deemed to apply to the Indenture as so
modified or to be excluded by this Supplemental Indenture, as the case may be.
SECTION 5.06. RECITALS.
The Trustee shall 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 Guarantors and the Company.
SECTION 5.07. SEPARABILITY CLAUSE.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 5.08. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC.
Nothing in this Supplemental Indenture, the Indenture or the Notes,
express or implied, shall give to any person, other than the parties hereto and
thereto and their successors hereunder and thereunder and the Holders of Notes,
any benefit of any legal or equitable right, remedy or claim under the
Indenture, this Supplemental Indenture or the Notes.
SECTION 5.09. TERMINATION OF SUPPLEMENTAL INDENTURE.
If the Offer is withdrawn or rescinded for any reason prior to the time
of the Acceptance, this Supplemental Indenture shall terminate automatically as
of the time the Offer is terminated and be of no further force or effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first above written.
XXXXXX AMERICAN CORP.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
B(2)DIRECT, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
CHECKS IN THE MAIL, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
XXXXXX AMERICAN CHECKS, INC.
By: /s/ Xxxxx X. Xxxx, Xx.
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Name: Xxxxx X. Xxxx, Xx.
Title: Senior Vice President and
Chief Financial Officer
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
