Exhibit 4.48
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 28, 2001, is between
AMERIKING, INC., a Delaware corporation (the "Company"), and STATE STREET BANK
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AND TRUST COMPANY (as successor trustee to Fleet National Bank), as trustee
(herein called the "Trustee").
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PRELIMINARY STATEMENT
The Company and the Trustee have entered into an Indenture (herein called
the "Indenture"), dated as of December 3, 1996 with respect to the Company's 10
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3/4% Senior Notes due 2006 (the "Senior Notes"). Capitalized terms used herein,
not otherwise defined herein, shall have the meanings given them in the
Indenture.
Section 9.02 of the Indenture provides that, under certain circumstances, a
supplemental indenture may be entered into by the Company and the Trustee with
the written consent of the Holders of at least a majority in aggregate principal
amount of the then outstanding Senior Notes. In accordance with the terms of
Sections 9.02 and 9.06 of the Indenture, the Company has, by resolution of the
Board of Directors, authorized this First Supplemental Indenture. The Trustee
has determined that this First Supplemental Indenture is in form satisfactory to
it.
NRE Holdings, Inc., a Delaware corporation and subsidiary of the Company
("NRE Holdings"), has offered its 10 3/4% Senior Notes due 2007 ("NRE Holdings'
Senior Notes"), its 13% Senior PIK Notes due 2008 ("NRE Holdings' Senior PIK
Notes") and warrants ("NRE Holdings' Warrants") to purchase common stock, par
value $.01 per share ("Common Stock"), representing 19.99% of its fully-diluted
Common Stock, in exchange for all of the outstanding Senior Notes (the "Exchange
Offer") pursuant to the Offering Memorandum/Consent Solicitation Statement,
dated June 1, 2001 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Offering Memorandum/Consent Solicitation
Statement"), and, in connection therewith, the Company solicited consents to
proposed amendments to the Indenture. This First Supplemental Indenture
evidences the proposed amendments.
All things necessary to make this First Supplemental Indenture a valid
agreement of the Company and the Trustee and a valid amendment of and supplement
to the Indenture have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Senior
Notes issued under the Indenture from and after the date of this First
Supplemental Indenture, as follows:
Section 1. Amendment to the Indenture.
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1.1 Deletions.
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(a) Section 3.08 of the Indenture is hereby deleted in its entirety.
(b) Section 4.05 of the Indenture is hereby deleted in its entirety.
(c) Section 4.07 of the Indenture is hereby deleted in its entirety.
(d) Section 4.08 of the Indenture is hereby deleted in its entirety.
(e) Section 4.09 of the Indenture is hereby deleted in its entirety.
(f) Section 4.11 of the Indenture is hereby deleted in its entirety.
(g) Section 4.13 of the Indenture is hereby deleted in its entirety.
(h) Section 4.14 of the Indenture is hereby deleted in its entirety.
(i) Section 4.15 of the Indenture is hereby deleted in its entirety.
(j) Section 5.01 of the Indenture is hereby deleted in its entirety.
1.2 Conforming Changes.
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(a) The definitions of "Asset Sale," "BBI Note," "BKC Designated
Transfer," "Cash Flow,? "Cash Flow Coverage Ratio," "Change of
Control," "Consolidated Interest Expense," "Consolidated Net
Income," "Consolidated Net Worth," "Credit Agreement," "Exchange
Debentures," "Executive Employment Agreements," "Existing
Stockholders," "Jaro Leases," "Net Income," "Net Proceeds,"
"Offerings," "Other Permitted Indebtedness," "Permitted Liens,"
"Pro Forma Basis," "Prospectuses," "Redeemable Preferred Stock,"
"Refinancing Indebtedness," "Restricted Investment,"
"Restructuring Charges," "Senior Preferred Stock," "SFAS 106,"
"SFAS 109," "Subordinated Indebtedness," "TJC Agreement" and
"Weighted Average Life to Maturity" set forth in Section 1.01 of
the Indenture are hereby deleted in their entirety.
(b) Section 1.02 of the Indenture is hereby amended as follows:
(i) The terms "Affiliate Transaction," "Asset Sale Disposition
Date," "Asset Sale Trigger Date," "Change of Control Trigger
Date," "Excess Proceeds," "Offer," "Other Company
Indebtedness," "Other Indebtedness Guarantee," "Purchase
Date" and "Restricted Payments" are deleted therefrom; and
(ii) The terms "Disposition" and "Successor Corporation" shall
refer to Section 5.02.
(c) Subclause (i) of Section 2.04 of the Indenture is hereby deleted
in its entirety.
(d) Section 2.06(h)(ii) of the Indenture is hereby amended by
replacing the parenthetical therein with the parenthetical
"(other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections
3.07 and 9.05 hereof)".
(e) Section 2.09 of the Indenture is hereby amended by deleting
"Offer," in the last sentence of such section.
(f) Section 2.11 of the Indenture is hereby amended by deleting "or
pursuant to an Offer" from the parenthetical in the last sentence
of such section.
(g) Article 3 of the Indenture is amended by changing the title of
such article to "Optional Redemption".
(h) Section 3.01 of the Indenture is hereby amended as follows:
(i) the second paragraph is deleted in its entirety; and
(ii) the words "or Offer" are deleted at the end of the third
paragraph.
(i) Section 3.02 of the Indenture is hereby amended as follows:
(i) the words "or if less than all Senior Notes tendered
pursuant to an Offer are to be accepted for payment" and "or
accepted for payment" are deleted from the first sentence;
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(ii) the third sentence is deleted in its entirety;
(iii) the words "or purchase" and "or purchased" are deleted from
the fourth sentence;
(iii) the words "or tendered pursuant to an Offer" are deleted
from the fifth sentence; and
(iv) the words "or selected for purchase" are deleted from the
last sentence.
(j) The last sentence of Section 4.02(b) of the Indenture is hereby
deleted in its entirety.
(k) The second paragraph of Section 4.03 of the Indenture is hereby
amended by replacing the phrase "Section 4.01, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15 or 4.16 or of
Article 5" with the phrase "Section 4.01, 4.06, 4.10, 4.12 or
4.16 or of Article 5" where such phrase appears in such
paragraph.
(l) Section 4.06 of the Indenture is hereby amended by deleting the
words "Section 4.14 and" from the first sentence.
(m) Section 4.16(a) of the Indenture is hereby amended and restated
in its entirety to read as follows:
"From and after the date of original issuance of the Senior
Notes, the Company may designate any existing or newly
formed or acquired Subsidiary as a Non-Restricted
Subsidiary, provided that (A) the Subsidiary to be so
designated has total assets of $1,000,000 or less and (B)
no Default or Event of Default shall have occurred and be
continuing."
(n) Section 4.16(b) of the Indenture is hereby amended by deleting
the phrase ", immediately before or after giving effect to
such action, transaction or series of transactions on a Pro
Forma Basis, (i) the Company could incur at least $1.00 of
additional Indebtedness pursuant to Section 4.07(a) hereof
and (ii)".
(o) Section 5.02 of the Indenture is hereby amended and restated in
its entirety to read as follows:
"Upon any consolidation or merger with or into, or sale,
lease, conveyance or other disposition of all or
substantially all of the assets of the Company to any
Person (a "Disposition"), the entity formed by or surviving
any such Disposition or the entity to which such
Disposition shall have been made (the "Successor
Corporation") shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under
this Indenture with the same effect as if such Successor
Corporation has been named as the Company herein; provided,
however, that neither the Company nor the Successor
Corporation shall be released from its Obligation to pay
the principal of, and premium, if any, and interest on, the
Senior Notes."
(p) Section 7.05 of the Indenture is hereby amended by deleting the
phrase "or any failure to purchase Senior Notes tendered pursuant
to an Offer that are required to be purchased by the terms of
this Indenture" from the parenthetical.
(q) Section 8.01(b) of the Indenture is hereby amended as follows:
(i) subclause (ii) of the first paragraph of Section 8.01(b) is
hereby amended and restated in its entirety to read as
follows:
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"(ii) its obligations under Sections 4.02, 4.03, 4.06,
4.10 and 4.16, and the operation of Sections
6.01(a)(iii) through (a)(v) hereof ("covenant
defeasance option")".
(ii) the second sentence of the second paragraph of Section
8.01(b) is hereby amended by deleting therefrom the phrase
"or because of the Company's failure to comply with Section
5.01(iii) and (iv) hereof".
(r) Section 8.02(a) of the Indenture is hereby amended and restated
in its entirety to read as follows:
"the Company irrevocably deposits in trust (the defeasance
trust") with the Trustee money or U.S. Government
Obligations sufficient for the payment in full of the
principal of, premium, if any, and any accrued and unpaid
interest on, the Senior Notes then outstanding, as of the
maturity date or the redemption date, as the case may be;".
(s) The fourth paragraph of Section 9.02 of the Indenture is hereby
amended by deleting the parenthetical "(other than the provisions
of Sections 4.13 and 4.14 hereof)" in its entirety from the third
sentence.
(t) Section 10.02 of the Indenture is hereby amended and restated by
replacing the name and address of the Trustee with the following:
"State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Corporate Trust
Telecopier No.: (000) 000-0000"
Section 2. Effectiveness; Termination
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(a) This First Supplemental Indenture is entered into pursuant to and
consistent with Section 9.02 of the Indenture, and nothing herein shall
constitute an amendment, supplement or waiver requiring the approval of each
Holder pursuant to clauses (1) through (6) of the last paragraph of Section
9.02.
(b) This First Supplemental Indenture shall become effective and
binding on the Company, the Trustee and the Holders of the Senior Notes upon the
execution and delivery by the parties to this First Supplemental Indenture;
provided, however, that the provisions of the Indenture referred to in Section 1
above (such provisions being referred to as the "Amended Provisions") will
remain in effect in the form they existed prior to the execution of this First
Supplemental Indenture, the deletions and amendments of the Amended Provisions
will not become operative, and the terms of the Indenture will not be amended,
modified or deleted, in each case unless and until the date and time, if any
(the "Closing Date"), that NRE Holdings accepts for exchange pursuant to the
Exchange Offer the outstanding Senior Notes validly tendered in exchange for NRE
Holdings' Senior Notes, NRE Holdings' Senior PIK Notes and NRE Holdings'
Warrants. Upon the Closing Date, the Amended Provisions will automatically be
deleted or modified as contemplated by Section 1 above.
Section 3. Reference to and Effect on the Indenture.
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(a) On and after the Closing Date, each reference in the Indenture to
"the Indenture," "this Indenture," "hereunder," "hereof" or "herein" shall mean
and be a reference to the Indenture as supplemented by this First Supplemental
Indenture unless the context otherwise requires.
(b) Except as specifically amended above, the Indenture shall remain
in full force and effect and is hereby ratified and confirmed.
Section 4. Governing Law.
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This First Supplemental Indenture shall be construed and enforced in
accordance with, and interpreted under, the internal laws of the State of New
York, without reference to the conflict of laws provisions thereof.
Section 5. Counterparts and Methods of Execution.
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This First Supplemental Indenture may be executed in several counterparts,
all of which together shall constitute one agreement binding on all parties,
notwithstanding that all parties have not signed the same counterpart.
Section 6. Titles.
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Section titles are for descriptive purposes only and shall not control or
alter the meaning of this First Supplemental Indenture as set forth in the text.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this First
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized all as of the day and year first above written.
AMERIKING, INC.
By: /s/ A. Xxxxxxx Xxxxxx
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Its: Vice President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
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Its: Assistant Vice President
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