Exhibit 4.1
THIRD SUPPLEMENTAL INDENTURE
THIS THIRD SUPPLEMENTAL INDENTURE (this "THIRD SUPPLEMENTAL
INDENTURE"), dated as of December 20, 2002, is made by and among X.X. XXXXXXXXX
INC., a corporation duly organized and existing under the laws of the State of
Delaware, as issuer (the "COMPANY"), X.X. XXXXXXXXX CORPORATION, a corporation
duly organized and existing under the laws of the State of Delaware, as a
guarantor and successor to The Dun & Bradstreet Corporation ("RHD"), X.X.
XXXXXXXXX ACQUISITIONS, INC., a corporation duly organized and existing under
the laws of the State of Delaware, as a guarantor ("ACQUISITIONS"), X.X.
XXXXXXXXX APIL, INC., a corporation duly organized and existing under the laws
of the State of Delaware, as a guarantor ("APIL"), X.X. XXXXXXXXX CD, INC., a
corporation duly organized and existing under the laws of the State of Delaware,
as a guarantor ("RHD/CD"), GET DIGITAL XXXXX.XXX, INC., a corporation duly
organized and existing under the laws of the State of Delaware, as a guarantor
("GET DIGITAL"), X.X. XXXXXXXXX ACQUISITIONS II, INC., a corporation duly
organized and existing under the laws of the State of Kansas, as a guarantor
("ACQUISITIONS II") (the foregoing guarantors collectively referred to herein as
the "GUARANTORS"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "TRUSTEE").
RECITALS:
A. The Company, RHD and the Trustee have entered into an Indenture,
dated as of June 5, 1998, as amended by the First Supplemental Indenture, dated
as of November 25, 2002, by and among the Company, as issuer, RHD, as a
guarantor, Acquisitions, as a guarantor, APIL, as a guarantor, RHD/CD, as a
guarantor, Get Digital, as a guarantor, and the Trustee, and further amended by
the Second Supplemental Indenture, dated as of December 20, 2002, by and among
the Company, as issuer, the Guarantors and the Trustee (as so amended, the
"INDENTURE").
B. Pursuant to the Indenture, the Company issued, the Guarantors
guaranteed and the Trustee authenticated and delivered an aggregate principal
amount of $150,000,000 of the Company's 9 1/8% Senior Subordinated Notes due
2008 (the "NOTES").
C. The Company desires and has requested the Guarantors and the Trustee
to join with the Company in the execution and delivery of this Third
Supplemental Indenture for the purpose of amending the Indenture in order to
eliminate certain covenants and Events of Default.
D. Section 902 of the Indenture provides that a supplemental indenture
may be entered into by the Company, the Guarantors and the Trustee to change
certain provisions of the Indenture or modify certain rights of the holders of
the Notes with the consent of Holders of not less than a majority in aggregate
principal amount of the then Outstanding Notes and the authorization by a
resolution of the Board of Directors of the Company.
E. Pursuant to a solicitation by the Company, consents to the
amendments to the Indenture, which will eliminate certain covenants and Events
of Default pursuant to this Third Supplemental Indenture, of Holders of at least
a majority in aggregate principal amount of the Outstanding Notes have been
received and a resolution of the Board of Directors of the Company has
authorized the Company to enter into this Third Supplemental Indenture with the
Guarantors and the Trustee.
F. The Company has furnished, or caused to be furnished, to the
Trustee, and the Trustee has received, an Officers' Certificate and an Opinion
of Counsel stating, among other things, that this Third Supplemental Indenture
is authorized or permitted by the Indenture.
G. All things necessary to make this Third Supplemental Indenture a
valid agreement of the Company, the Guarantors and the Trustee and a valid
amendment to the Indenture have been done.
NOW THEREFORE, the parties hereto agree for the benefit of the other
parties, as follows:
AGREEMENT:
SECTION 1. DEFINITIONS. Capitalized terms used but not otherwise
defined in this Third Supplemental Indenture have the meanings ascribed thereto
in the Indenture.
SECTION 2. AMENDMENTS TO THE INDENTURE.
2.1 Subsection (6) of SECTION 501 of ARTICLE FIVE of the Indenture is
amended by deleting the subsection in its entirety, together with any references
thereto in the Indenture, and replacing it with the following: "Intentionally
omitted."
2.2 Subsection (7) of SECTION 501 of ARTICLE FIVE of the Indenture is
amended by deleting the subsection in its entirety, together with any references
thereto in the Indenture, and replacing it with the following: "Intentionally
omitted."
2.3 SECTION 801 of ARTICLE EIGHT of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.4 SECTION 802 of ARTICLE EIGHT of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.5 SECTION 1004 of ARTICLE TEN of the Indenture is amended by deleting
the section in its entirety, together with any references thereto in the
Indenture, and replacing it with the following: "Intentionally omitted."
2.6 SECTION 1005 of ARTICLE TEN of the Indenture is amended by deleting
the section in its entirety, together with any references thereto in the
Indenture, and replacing it with the following: "Intentionally omitted."
2.7 SECTION 1006 of ARTICLE TEN of the Indenture is amended by deleting
the section in its entirety, together with any references thereto in the
Indenture, and replacing it with the following: "Intentionally omitted."
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2.8 SECTION 1007 of ARTICLE TEN of the Indenture is amended by deleting
the section in its entirety, together with any references thereto in the
Indenture, and replacing it with the following: "Intentionally omitted."
2.9 SECTION 1008 of ARTICLE TEN of the Indenture is amended by deleting
the section in its entirety, together with any references thereto in the
Indenture, and replacing it with the following: "Intentionally omitted."
2.10 SECTION 1009 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.11 SECTION 1010 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.12 SECTION 1011 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.13 SECTION 1012 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.14 SECTION 1013 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.15 SECTION 1014 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.16 SECTION 1015 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.17 SECTION 1016 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.18 SECTION 1017 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.19 SECTION 1018 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
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2.20 SECTION 1019 of ARTICLE TEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.21 SECTION 1205 of ARTICLE TWELVE of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.22 SECTION 1404 of ARTICLE FOURTEEN of the Indenture is amended by
deleting the section in its entirety, together with any references thereto in
the Indenture, and replacing it with the following: "Intentionally omitted."
2.23 Any defined terms present in the Indenture, but no longer used as
a result of the amendments made by this Third Supplemental Indenture are hereby
eliminated. The definition of any defined term used in the Indenture, where such
definition is set forth in any of the sections or subsections that are
eliminated by this Third Supplemental Indenture and the term it defines is still
used in the Indenture after the amendments hereby become effective, shall be
deemed to become part of, and defined in, Section 101 of the Indenture. Such
defined terms are to be in alphanumeric order within Section 101 of the
Indenture.
SECTION 3. MISCELLANEOUS.
3.1 EFFECT AND OPERATION OF THIRD SUPPLEMENTAL INDENTURE. This Third
Supplemental Indenture shall be effective and binding immediately upon its
execution and thereupon this Third Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Note heretofore or hereafter
authenticated and delivered under the Indenture shall be bound hereby, but,
notwithstanding anything in the Indenture or this Third Supplemental Indenture
to the contrary, this Third Supplemental Indenture shall not be operative until
the Company has accepted for payment all of the Notes validly tendered pursuant
to the Offer (as defined in the Company's Offer to Purchase and Consent
Solicitation Statement, dated December 3, 2002 (the "STATEMENT")). If the Offer
is terminated or withdrawn, or the Notes are not accepted for payment for any
reason, this Third Supplemental Indenture will not become operative. Except as
modified and amended by this Third Supplemental Indenture, all provisions of the
Indenture shall remain in full force and effect.
3.2 CONFIRMATION AND PRESERVATION OF THE INDENTURE. The Indenture as
modified and amended by this Third Supplemental Indenture is in all respects
confirmed and preserved.
3.3 INDENTURE AND THIRD SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER. This
Third Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Third Supplemental
Indenture shall henceforth be read and construed together.
3.4 TRUST INDENTURE ACT CONTROLS. If any provision of this Third
Supplemental Indenture limits, qualifies or conflicts with another provision
which is required to be included in this Third Supplemental Indenture by the
Trust Indenture Act, the required provision shall control.
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3.5 GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
3.6 SUCCESSORS. All agreements of the Company in this Third
Supplemental Indenture shall bind its successors and assigns. All agreements of
the Guarantors in this Third Supplemental Indenture shall bind their respective
successors and assigns. All agreements of the Trustee in this Third Supplemental
Indenture shall bind its successors and assigns.
3.7 MULTIPLE COUNTERPARTS. The parties may sign multiple counterparts
of this Third Supplemental Indenture. Each signed counterpart shall be deemed an
original, but all of them together represent one and the same agreement.
3.8 HEADINGS. The headings of the Sections of this Third Supplemental
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
3.9 SEPARABILITY. Each provision of this Third Supplemental Indenture
shall be considered separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this Third 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.
3.10 BENEFITS OF THIRD SUPPLEMENTAL INDENTURE. Nothing in this Third
Supplemental Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors, the holders of Senior Debt (subject to
Article 12 of the Indenture) and the Holders of Notes, any benefit or any legal
or equitable right, remedy or claim.
3.11 TRUSTEE. The Trustee makes no representations as to the validity
or sufficiency of this Third Supplemental Indenture. The statements and recitals
herein are deemed to be those of the Company and the Guarantors and not of the
Trustee.
[Signatures are on the following pages.]
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IN WITNESS WHEREOF, the parties have caused this Third Supplemental
Indenture to be duly executed as of the date and the year first written above.
X.X. XXXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxx
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Name:Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name:Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX ACQUISITIONS, INC.
By: /s/ Xxxxxx X. Xxxx
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Name:Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX APIL, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name:Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX CD, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name:Xxxxxx X. Xxxx
Title: Vice President
GET DIGITAL XXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name:Xxxxxx X. Xxxx
Title: Vice President
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X.X. XXXXXXXXX ACQUISITIONS II, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name:Xxxxxx X. Xxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxx Xxxxxxxxx-Xxxxxx
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Name: Xxxxx Xxxxxxxxx-Xxxxxx
Title: Vice President
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