EXHIBIT 4.(c)(ii)
SECOND SUPPLEMENTAL INDENTURE
This SECOND SUPPLEMENTAL INDENTURE, dated as of January 23,
1998, between XXXXX GROUP, INC., a corporation incorporated under the laws of
the State of New York (the "Company"), XXXXX GROUP INTERNATIONAL, INC., a
Delaware corporation, XXXXX GROUP RETAIL, INC., a Pennsylvania corporation,
PAGODA TRADING COMPANY, INC., a Missouri corporation, and XXXXXX XXXX
ASSOCIATES, INC., a Missouri corporation (each a "Guarantor" and collectively,
the "Guarantors"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts
Trust Company, as trustee.
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture dated as of October 1, 1996 (as amended, modified or
supplemented from time to time, the "Indenture");
WHEREAS, the Company and the Guarantors heretofore executed and
delivered to the Trustee a First Supplemental Indenture dated as of January 9,
1997 (the "First Supplemental Indenture");
WHEREAS, Section 9.02 of the Indenture provides that the
Company, when authorized by a Board Resolution of its Board of Directors, and
the Trustee may amend the Indenture or the Securities with the written consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities then outstanding; and
WHEREAS, Holders of not less than a majority in aggregate
principal amount of Securities outstanding as of January 9, 1998, have
consented in writing to certain modifications to the definition of "Consolidated
Net Income" in Section 1.01 of the Indenture and to an amendment to the
Limitation on the Disposition of Proceeds of Asset Sales in Section 4.13 of the
Indenture.
NOW THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company, the Guarantors
and the Trustee hereby agree as follows:
Section 1. Definitions. Except as otherwise expressly
provided herein, all capitalized words and terms used herein shall have the
meanings ascribed thereto in the Indenture.
Section 2. Amendment to Definition of "Consolidated Net
Income". The definition of Consolidated Net Income in Section 1.01 of the
Indenture is hereby amended to read as follows (strike-through indicates text
to be deleted and underline indicates text to be added):
"Consolidated Net Income" means, with respect to any person,
for any period, the consolidated net income (or loss) of such
person and its Subsidiaries for such period as determined in
accordance with GAAP, adjusted, to the extent included in
calculating such net income, by excluding, without duplication,
(i) all extraordinary gains or losses, (ii) the portion of net
income (but not losses) of such person and its Subsidiaries
allocable to minority interests in unconsolidated persons to
the extent that cash dividends or distributions have not
actually been received by such person or one of its
Subsidiaries, (iii) net income (or loss) of any person combined
with such person or one of its Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date
of combination, (iv) any gain or loss realized upon the
termination of any employee pension benefit plan on an after
tax basis, (v) gains or losses in respect of any Asset Sales
by such person or one of its Subsidiaries, and(vi) the net
income of any Subsidiary of such person to the extent that the
declaration of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted, directly
or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule
or governmental regulations applicable to that Subsidiary or
its stockholders, and (vii) solely for purposes of calculating
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the amount available under Section 4.09 for cash dividends on
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the Common Stock in regular quarterly installments, the one-time
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non-recurring charge of $21.0 million taken by the Company in
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October 1997 in connection with the restructuring of the
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Company's international marketing business, Pagoda
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International.
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[The remainder of Section 1.01 is unaffected.]
Section 3. Amendment to the Limitation on the Disposition
of Proceeds of Asset Sales. The Limitation on the Disposition of Proceeds of
Asset Sales in Section 4.13 of the Indenture is hereby amended to read as
follows (strike-through indicates text to be deleted and underline indicates
text to be added):
The Company will not, and will not permit any of its
Subsidiaries to, make any Asset Sale unless (a) the Company or
such Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the Fair Market
Value of the shares or assets sold or otherwise disposed of
and (b) at least 75% of such consideration consists of cash
or Cash Equivalents; provided, however, that the foregoing
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subsection (b) shall not apply to the sale by the Company's
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international marketing business, Pagoda International, of
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inventory having an aggregate book value at the time of sale
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of up to $10 million. To the extent the Net Cash Proceeds of
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any Asset Sale are not required to be applied to repay, and
permanently reduce the commitments under, the Credit Agreement,
as required by the terms thereof, or are not so applied, the
Company or such Subsidiary, as the case may be, may, within
180 days of such Asset Sale, apply the Net Cash Proceeds from
such Asset Sale to an investment in properties and assets that
replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in the
business of the Company and its Subsidiaries existing on the
Issue Date or in businesses reasonably related thereto
("Replacement Assets"). Any Net Cash Proceeds from any Asset
Sale that are neither used to repay, and permanently reduce the
commitments under, the Credit Agreement, nor invested in,
Replacement Assets within the 180 day period described above
constitute "Excess Proceeds" subject to disposition as provided
below.
[The remainder of Section 4.13 is unaffected.]
Section 4. Construction with Indenture. All of the
covenants, agreements and provisions of this Second Supplemental Indenture
shall be deemed to be and construed as part of the Indenture to the same extent
as if fully set forth therein and shall be fully enforceable in the manner
provided in the Indenture. Except as provided in this Second Supplemental
Indenture (and the First Supplemental Indenture) the Indenture shall remain in
full force and effect and the terms and conditions thereof are hereby confirmed.
Section 5. Conflict with Trust Indenture Act. If any
provision of this Second Supplemental Indenture modifies or excludes any
provision of the Trust Indenture Act that is required under such Act to be
part of and govern the Indenture or this Second Supplemental Indenture, the
latter provision shall control. If any provision hereof modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Second Supplemental
Indenture as so modified or excluded, as the case may be.
Section 6. Notices. Any notice or communication shall be
sufficiently given if given in accordance with the terms of the Indenture and
the First Supplemental Indenture.
Section 7. Separability. In case any provision in 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, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
Section 8. Counterparts. This Second Supplemental
Indenture may be executed in multiple counterparts and on separate
counterparts, and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
Section 9. Governing Law. The laws of the State of New
York shall govern this Second Supplemental Indenture without regard to
principles of conflicts of law.
[The next page is signature page.]
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
XXXXX GROUP, INC.
By: /s/ Xxxxx X. Xxxx
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Executive Vice President and Chief Financial
Officer
XXXXX GROUP INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
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Vice President
XXXXX GROUP RETAIL, INC.
By: /s/ Xxxxx X. Xxxx
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Vice President
PAGODA TRADING COMPANY, INC.
By: /s/ Xxxxx X. Xxxx
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Vice President
XXXXXX XXXX ASSOCIATES, INC.
By: /s/ Xxxxx X. Xxxx
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Vice President
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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