DELTA XXXXX, INC.
As Issuer
DELTA XXXXX MARKETING, INC.
As Guarantor
THE BANK OF NEW YORK
As Trustee
$150,000,000
SERIES A AND SERIES B
9% SENIOR NOTES DUE 2007
AMENDMENT NO. 1
Dated as of December 30, 1997
to
INDENTURE
Dated as of August 25, 1997
(The "Indenture")
[PG NUMBER]
This AMENDMENT NO. 1 to the INDENTURE is entered into as of this 30th
day of December, 1997, among Delta Xxxxx, Inc., a Delaware corporation (the
"Company"), Delta Xxxxx Marketing, Inc., a Delaware corporation (together with
all other persons who execute a Subsidiary Guarantee pursuant to the terms of
the Indenture, the "Guarantor(s)") and the Bank of New York, as trustee (the
"Trustee").
All capitalized terms contained herein and not otherwise defined herein
have the same meaning as such capitalized terms as defined in the Indenture
unless the context herein requires otherwise.
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 9% Series A Senior Notes due 2007 (the "Series A Notes") and the 9% Series B
Senior Notes due 2007 (the "Series B Notes" and, together with the Series A
Notes, the "Notes"):
WHEREAS a second right parenthesis was inadvertently added by
scrivener's error immediately after the phrase "excluding business interruption
insurance" in the definition of the term "Asset Sale" under Section 1.01 of the
Indenture;
WHEREAS a right parenthesis was inadvertently omitted by scrivener's
error from between the words "... the granting of any Lien" and ", in each case,
in one or a series ..." in the definition of the term "Asset Sale" under Section
1.01 of the Indenture;
WHEREAS Section 9.01(a) of the Indenture permits the Company, the
Guarantors and the Trustee to amend the Indenture by the process stated therein
without the consent of any Holder of a Note to cure any ambiguity, defect or
inconsistency in the Indenture;
WHEREAS the Company, the Guarantors and the Trustee believe it is in
the interest of all Holders of Notes and the Company, the Guarantors and the
Trustee to correct the error in the definition of the term "Asset Sale" under
Section 1.01 of the Indenture as described above;
NOW THEREFORE, the definition of "Asset Sale" contained in Section 1.01
of the Indenture is amended to exclude the second right parenthesis immediately
following the phrase "excluding business interruption insurance" and to include
a right parenthesis between the words "... the granting of any Lien" and ", in
each case, in one or a series ..." so that the definition of "Asset Sale" in its
entirety reads as follows:
"Asset Sale" means the sale, lease, conveyance or
other disposition of any assets (including, without limitation, by way
of a sale and leaseback and the receipt of proceeds of insurance
(excluding business interruption insurance) paid on account of the loss
of or damage to any asset and awards of compensation for any asset
taken by condemnation, eminent domain or similar proceeding, but
excluding the granting of any Lien), in each case, in one or a series
of related transactions (a) that have a fair market value in excess of
$1,000,000 or (b) yield Net Proceeds in excess of $1,000,000.
Notwithstanding the foregoing, the term "Asset Sale" shall not include
(i) any sale, lease, conveyance or other disposition that constitutes a
Restricted Payment or an Investment permitted to be made under the
Indenture, (ii) any transaction governed by Section 5.01, (iii) the
sale or lease of equipment, inventory, accounts receivable or other
assets in the ordinary course of business, (iv) the transfer of assets
by the Company to a Wholly-Owned Subsidiary of the Company (other than
a Receivables Subsidiary) or by a Wholly-Owned Subsidiary of the
Company (other than a Receivables Subsidiary) to the Company or another
Wholly-Owned Subsidiary of the Company (other than a Receivables
Subsidiary), (v) the sale or other disposition of cash or Cash
Equivalents, or (vi) the sale of accounts receivables and related
assets customarily transferred in an asset securitization transaction
involving accounts receivable to a Receivables Subsidiary or by a
Receivables Subsidiary, in each case, in connection with a Qualified
Receivables Transaction.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date first written above.
DELTA XXXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx
Executive Vice President, Chief Financial
Officer and Treasurer
DELTA XXXXX MARKETING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxxx
Executive Vice President, Chief Financial
Officer and Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/
-----------------------------------------------------------------------
Name:
Title:
DELTA XXXXX, INC.
RESOLUTIONS OF THE BOARD OF DIRECTORS AUTHORIZING
ENTRY OF DELTA XXXXX, INC.
INTO AMENDMENT NO. 1
TO THE INDENTURE BY AND AMONG
DELTA XXXXX, INC,
DELTA XXXXX MARKETING, INC. AND
THE BANK OF NEW YORK
DATED AS OF AUGUST 25, 1997
The members of the Board of Directors (the "Board") of Delta Xxxxx,
Inc., a Delaware corporation (the "Company"), do hereby adopt the following
resolutions of the Board by unanimous written consent, waiving any and all
requirements of meeting or notice with respect thereto. All capitalized terms
contained herein and not otherwise defined herein shall have the same meaning as
such capitalized terms as defined in the Indenture (as defined below) unless the
context herein requires otherwise.
WHEREAS a second right parenthesis was inadvertently added by
scrivener's error immediately after the phrase "excluding business interruption
insurance" in the definition of the term "Asset Sale" under Section 1.01 of the
Indenture by and among the Company, Delta Xxxxx Marketing, Inc. (together with
all other persons who execute a Subsidiary Guarantee pursuant to the terms of
the Indenture (as defined below), the "Guarantor(s)"), and the Bank of New York
as trustee (the "Trustee"), dated August 25, 1997 (the "Indenture");
WHEREAS a right parenthesis was inadvertently omitted by scrivener's
error from between the words "... the granting of any Lien" and ", in each case,
in one or a series ..." in the definition of the term "Asset Sale" under Section
1.01 of the Indenture;
WHEREAS Section 9.01(a) of the Indenture permits the Company, the
Guarantors and the Trustee to amend the Indenture by the process stated therein
without the consent of any Holder of a Note to cure any ambiguity, defect or
inconsistency in the Indenture;
WHEREAS the Company believes it is in the interest of all Holders of
Notes and the Company, the Guarantors and the Trustee to correct the error in
the definition of the term "Asset Sale" under Section 1.01 of the Indenture as
described above;
NOW THEREFORE BE IT RESOLVED as follows:
RESOLVED to approve of the entry of the Company into Amendment No. 1 to
the Indenture (the "Amendment No. 1"), a copy of which is attached hereto as
Exhibit A.
RESOLVED, that the officers of the Company, and any of them, be, and
they hereby are, authorized in the name and on behalf of the Company, to take
any and all action, in conjunction with the same officers of Delta Xxxxx
Marketing, Inc., which they, he or she may deem necessary or advisable in order
to effect the entry of the Company into the Amendment No. 1.
ADOPTED as of ____________, 1997.
DELTA XXXXX, INC.
BOARD OF DIRECTORS
/s/ C. C. Guy /s/ E. Xxxxx Xxxxxxx, XX
----------------------- ----------------------------
C. C. Guy E. Xxxxx Xxxxxxx, XX
/s/ Xxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxxx
----------------------- -----------------------------
Buck A. Xxxxxx Xxxxxx X. Xxxxxxxxx
