SECOND SUPPLEMENTAL INDENTURE
Exhibit
4.4
THIS
SECOND SUPPLEMENTAL INDENTURE (this “Second Supplemental Indenture”), dated as
of April 24, 2007, is entered into by and among (i) China Security &
Surveillance Technology, Inc., a Delaware corporation (the “Company”), (ii)
China Safetech Holdings Limited, incorporated under the laws of British Virgin
Islands and China Security & Surveillance (HK) Ltd., incorporated under the
laws of Hong Kong (together, the “Existing Guarantors”), (iii) the parties set
forth in Annex A hereto, (iv) Chain Star Investments Ltd., incorporated under
the laws of Hong Kong (the “New Guarantor” and, together with the Existing
Guarantors, the “Guarantors”) and (v) The Bank of New York, as trustee (the
“Trustee”). Capitalized terms used herein but not otherwise defined herein shall
have the respective meanings set forth in the Amended Indenture (as defined
below).
WITNESSETH:
WHEREAS,
the Company, the Existing Guarantors and the Trustee have entered into an
Indenture, dated as of February 16, 2007, which sets forth the terms and
conditions for the issuance by the Company of US$60,000,000 1.0% Guaranteed
Senior Unsecured Convertible Notes due 2012 (the “Notes”), as amended by that
certain Supplemental Indenture (the “First Supplemental Indenture”), dated as of
March 29, 2007 (the “Amended Indenture”);
WHEREAS,
Section 8.02 of the Amended Indenture provides that the Company and the Trustee
may, from time to time and at any time, with the consent of the holders of
a
majority in aggregate principal amount of the Notes at the time outstanding,
enter into indentures supplemental thereto for the purpose of changing in any
manner any of the provisions of the Amended Indenture subject to the conditions
set forth therein;
WHEREAS,
Sections 4.18 and 9.03 of the Amended Indenture provide that under certain
circumstances the Company is required to cause the New Guarantor to execute
and
deliver to the Trustee a supplemental indenture pursuant to which the New
Guarantor shall unconditionally guarantee all the Company's obligations under
the Notes pursuant to a Guarantee on the terms and conditions set forth herein;
WHEREAS,
pursuant to Section 9.03 of the Amended Indenture, the Trustee and the Company
are authorized to execute and deliver this Second Supplemental Indenture for
the
purpose of adding Guarantees with respect to the Notes without notice to or
consent of any Noteholders;
WHEREAS,
the holders of a majority in aggregate principal amount of the Notes currently
outstanding have consented (the evidence of such consent having been obtained
and provided to the Trustee as required under the Amended Indenture) to the
execution of this Second Supplemental Indenture by the parties hereto;
and
WHEREAS,
each of the Company, the Trustee and the Guarantors has complied with the
requirements under the Amended Indenture to execute this Second Supplemental
Indenture and has provided the Trustee with an Officers’ Certificate and an
Opinion of Counsel as conclusive evidence that the execution of this Second
Supplemental Indenture complies with the applicable requirements under the
Amended Indenture and is otherwise authorized or permitted by the Amended
Indenture.
NOW
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company, the
Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the holders of the Notes as follows:
| 1. |
Amendments
to the Indenture.
The Amended Indenture is hereby further amended as
follows:
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(a) The
definition of “Investor
Rights Agreement”
in
Section 1.01 thereof is hereby replaced in its entirety with the following:
“Investor
Rights Agreement”
means
the amended and restated investor rights agreement dated as of April 24,
2007
by and
among the Company, the Guarantors, the Operating Subsidiaries, certain other
Subsidiaries of the Company, the Shareholders and Citadel Equity Fund
Ltd.”
(b) The
text
under Section 4.09(b)(i) thereof is deleted in its entirety and is replaced
with
“[RESERVED]”, such that such Section shall read in its entirety as
follows:
“[RESERVED]”
(c) The
reference to “2.50” in Section 4.09(b)(ii) thereof is hereby replaced with
"3.50”, such that such Section shall read in its entirety as follows:
“a
Leverage Ratio, as determined as of the last day of each Fiscal Quarter, for
the
four Fiscal Quarters ending on such day, not exceeding 3.50 to 1.00.”
2.
Agreement
to Guarantee.
The New
Guarantor hereby agrees, jointly and severally with all the Existing Guarantors,
to unconditionally guarantee the Company's obligations under the Notes on the
terms and subject to the conditions set forth in the Indenture and to be bound
by all other applicable provisions of the Indenture and the Notes.
3.
Ratification
of Indenture; Second Supplemental Indenture Part of Indenture.
Except
as expressly amended hereby, the Amended Indenture is ratified and confirmed
in
all respects and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Second Supplemental Indenture shall form a part
of the Amended Indenture for all purposes, and every Holder heretofore or
hereafter authenticated and delivered shall be bound hereby.
4.
Governing
Law.
THIS
SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
5.
Trustee
Makes No Representation.
The
Trustee makes no representation as to the validity or sufficiency of this Second
Supplemental Indenture.
| 6. |
Counterparts.
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(a) The
parties may sign any number of copies of this Second Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this Second Supplemental
Indenture.
(b) This
Second Supplemental Indenture may be executed in one or more counterparts and
when a counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement.
7.
Effect
of Headings.
The
Section headings herein are for convenience only and shall not effect the
construction thereof.
IN
WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date first above written.
| CHINA SECURITY & SURVEILLANCE TECHNOLOGY, INC. | ||
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| By: | /s/ Tu Xxx Xxxx | |
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Name:
Tu Xxx Xxxx
Title:
CEO
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| CHINA SAFETECH HOLDINGS LIMITED | ||
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| By: | /s/ Tu Xxx Xxxx | |
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Name:
Tu Xxx Xxxx
Title:
CEO
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CHINA
SECURITY & SURVEILLANCE TECHNOLOGY (HK) LTD.
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| By: | /s/ Tu Xxx Xxxx | |
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Name:
Tu Xxx Xxxx
Title:
CEO
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CHAIN
STAR INVESTMENTS LTD
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| By: | /s/ Tu Xxx Xxxx | |
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Name:
Tu Xxx Xxxx
Title:
CEO
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FOR
THE PURPOSE OF SECTION 4.18(A) OF THE AMENDED INDENTURE
ONLY
GOLDEN
GROUP CORPORATION (SHENZHEN)
LIMITED
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| By: | /s/ Tu Xxx Xxxx | |
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Name:
Tu Xxx Xxxx
Title:
Director
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SHANGHAI
XXXXX XXXX DIGITAL TECHNOLOGY CO., LTD.
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| By: | /s/ Tu Xxx Xxxx | |
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Name:
Tu Xxx Xxxx
Title:
Director
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ANNEX
A
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1.
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Golden
Group Corporation (Shenzhen) Limited, a limited liability company
organized and existing under the laws of the People’s Republic of China
(“PRC”) (with respect to Section 4.18(a) of the Amended Indenture only).
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2.
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Shanghai
Xxxxx Xxxx Digital Technology Co., Ltd., a limited liability company
organized and existing under the laws of the PRC (with respect to
Section
4.18(a) of the Amended Indenture
only).
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3.
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China
Security & Surveillance Technology (PRC), Inc., a limited liability
company organized and existing under the laws of the PRC (with respect
to
Section 4.18(a) of the Amended Indenture
only).
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