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Exhibit 4.7
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XXXX NATIONAL GROUP, INC.
And
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
dated as of
September 15, 1997
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SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of September 15, 1997
("THIS SECOND SUPPLEMENTAL INDENTURE"), is made by and between XXXX NATIONAL
GROUP, INC., a corporation duly formed and validly existing under the laws of
the State of Delaware (the "ISSUER"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "TRUSTEE").
RECITALS:
A. The Issuer and the Trustee have entered into an Indenture, dated as
of September 30, 1993, as amended by a First Supplemental Indenture, dated as of
August 14, 1997 (as so amended, the "INDENTURE").
B. Pursuant to the Indenture, the Issuer issued and the Trustee
authenticated and delivered $190,000,000 aggregate principal amount of the
Issuer's 11 1/4% Senior Notes due 2001 (the "SECURITIES").
C. Section 9.02 of the Indenture provides, among other things, that
with the written consent of the Securityholders of not less than a majority in
aggregate principal amount of the Securities then outstanding (the "REQUISITE
CONSENTS"), the Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee, may from time to time amend or supplement the
Indenture, subject to certain exceptions specified in Section 9.02 of the
Indenture.
D. The Issuer has established August 8, 1997 as the record date for the
solicitation of certain consents from the Securityholders pursuant to a Consent
Solicitation and Tender Offer Statement dated August 15, 1997 (the "STATEMENT"),
a true and correct copy of which has been made available to the Trustee.
E. Pursuant to the Statement, the Issuer has obtained and caused to be
furnished to the Trustee the Requisite Consents to the amendments to the
Indenture described in the Statement, whereby (i) certain covenants contained in
the Indenture with respect to limitations on payments, limitations on
indebtedness and preferred stock, limitations on dividend restrictions affecting
subsidiaries, limitations on sales of assets and subsidiary stock, limitations
on transactions with affiliates, limitations on liens and requirements for a
Change of Control Offer will be eliminated and (ii) compliance certificate
requirements will be modified to delete references to the Indenture provisions
being deleted.
F. This Second Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Issuer.
G. The Issuer has delivered, or caused to be delivered, to the Trustee,
the Requisite Consents obtained pursuant to the Statement, as well as an
Officers' Certificate and an Opinion of Counsel stating that all conditions
precedent and covenants, if any, provided for in the Indenture relating to this
Second Supplemental Indenture have been satisfied.
NOW THEREFORE, each party agrees for the benefit of the other party and
for the equal and ratable benefit of all Securityholders, as follows:
AGREEMENT:
SECTION 1. DEFINITIONS. Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined herein have the meanings given
them in the Indenture.
SECTION 2. DELETION OF CERTAIN SECTIONS OF THE INDENTURE. The following
sections containing restrictive covenants are deleted from the Indenture in
their entirety:
Section 4.07. Limitations on Restricted Payments.
Section 4.08. Limitations on Dividend Restrictions Affecting
Subsidiaries.
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Section 4.09. Limitations on Indebtedness and Preferred Stock.
Section 4.10. Limitations on Sale of Assets and Subsidiary Stock.
Section 4.11. Limitations on Transactions with Affiliates.
Section 4.12. Limitations on Liens.
Section 4.14. Change of Control.
SECTION 3. DELETION OF REFERENCES TO DELETED SECTIONS. Section 4.04(b)
of the Indenture is modified by deleting all references therein to Sections
4.07, 4.08, 4.09, 4.10. 4.11, 4.12 and 4.14 of the Indenture.
SECTION 4. MISCELLANEOUS.
4.1. EFFECT AND OPERATION OF SECOND SUPPLEMENTAL INDENTURE. This Second
Supplemental Indenture shall be effective upon the execution and delivery hereof
by the Issuer and the Trustee, but the amendments to the Indenture provided for
in Sections 2 and 3 hereof will not become operative until Securities are
accepted for purchase by the Issuer pursuant to the Offer (as defined in the
Statement). Confirmation that such amendments have become operative shall be
evidenced by the execution by the Issuer and the Trustee of the Confirmation
which is appended hereto. When this Second Supplemental Indenture is effective
and such amendments become operative, the Indenture shall be supplemented and
amended in accordance herewith, and this Second Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Security heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby. Except as supplemented and amended hereby, all provisions of the
Indenture shall remain in full force and effect.
4.2. INDENTURE AND SUPPLEMENTAL INDENTURES CONSTRUED TOGETHER. This
Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second Supplemental
Indenture shall henceforth be read and construed together.
4.3. CONFIRMATION AND PRESERVATION OF THE INDENTURE. The Indenture as
supplemented by this Second Supplemental Indenture is in all respects confirmed
and preserved.
4.4. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939, as amended (the "ACT"), that is required under such
Act to be part of and govern any provision of this Second Supplemental
Indenture, the provision of such Act shall control. If any provision of this
Second Supplemental Indenture modifies or excludes any provision of the Act that
may be so modified or excluded, the provisions of the Act shall be deemed to
apply to the Indenture as so modified or to be excluded by this Second
Supplemental Indenture, as the case may be.
4.5. SEPARABILITY CLAUSE. In case any provision of this Second
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.
4.6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
4.7. BENEFITS OF SECOND SUPPLEMENTAL INDENTURE. Nothing in the
Indenture, this Second Supplemental Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto and
their successors hereunder and thereunder, and the Securityholders, any benefit
of any legal or equitable right, remedy or claim under the Indenture as
supplemented and amended hereby or the Securities.
4.8. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Second Supplemental Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not.
4.9. NEW YORK LAW TO GOVERN. THIS SECOND SUPPLEMENTAL INDENTURE SHALL
BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID
STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
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4.10. COUNTERPARTS. This Second Supplemental Indenture may be executed
in counterparts, each of which shall be an original, but all such counterparts
shall together constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the date and the year first
above written.
XXXX NATIONAL GROUP, INC.
BY: /s/ XXXXXX XXXXXXXX
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NAME: XXXXXX XXXXXXXX
TITLE: TREASURER
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
BY: /s/ XXXX X. XXXXXXXXX
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NAME: XXXX X. XXXXXXXXX
TITLE: CORPORATE TRUST OFFICER
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CONFIRMATION
The undersigned hereby confirm that the amendments provided for in the
foregoing Second Supplemental Indenture have become operative, as contemplated
by Section 4.1 thereof, on September 15, 1997.
XXXX NATIONAL GROUP, INC.
BY: /s/ XXXXXX XXXXXXXX
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NAME: XXXXXX XXXXXXXX
TITLE: TREASURER
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
AS TRUSTEE
BY: /s/ XXXX X. XXXXXXXXX
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NAME: XXXX X. XXXXXXXXX
TITLE: CORPORATE TRUST OFFICER
