Exhibit 4.2
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XXXXX'X CORPORATION
(f/k/a ADVANTICA RESTAURANT GROUP, INC.)
as Issuer,
and
U.S. BANK NATIONAL ASSOCIATION
(successor to First Trust National Association),
as Trustee
11 1/4% SENIOR NOTES DUE 2008
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SUPPLEMENTAL INDENTURE
Dated as of September 21, 2004
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SUPPLEMENTAL INDENTURE dated as of September 21, 2004 (this
"Supplemental Indenture"), between XXXXX'X CORPORATION, f/k/a Advantica
Restaurant Group, Inc., a Delaware corporation (the "Issuer"), and U.S. BANK
NATIONAL ASSOCIATION (successor to First Trust National Association), as trustee
(the "Trustee"), to the Indenture dated as of January 7, 1998 by and between the
Issuer and the Trustee (as amended, supplemented and otherwise modified prior to
the date hereof, the "Indenture").
W I T N E S S E T H :
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WHEREAS, the Issuer and Trustee have heretofore executed and delivered
the Indenture providing for the issuance of the Issuer's 11 1/4% Senior Notes
due 2008 (the "Notes");
WHEREAS, the Issuer has, among other things (i) solicited consents from
the holders of the Notes to certain proposed amendments to the Indenture and
(ii) made a tender offer for the Notes (the "Tender Offer"), in each case, in
accordance with the terms of an Offer to Purchase and Consent Solicitation
Statement dated September 7, 2004 (the "Solicitation Statement");
WHEREAS, Section 7.2 of the Indenture provides that the Issuer and the
Trustee may, with the written consent of the Holders of not less than a majority
in aggregate principal amount of the Notes at the time outstanding, enter into
an indenture supplemental to the Indenture for the purpose of amending the
Indenture;
WHEREAS, the Issuer has received and delivered to the Trustee consents
from not less than a majority in aggregate principal amount of the Notes
outstanding to effect the amendments to the Indenture set forth herein;
WHEREAS, this Supplemental Indenture incorporates the amendments to
which the holders of the Notes have consented;
WHEREAS, the Issuer has been authorized by its Board of Directors to
enter into and perform this Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law, the Indenture,
the certificate of incorporation and bylaws of the Issuer, to make this
Supplemental Indenture a valid and binding agreement for the purposes expressed
herein, in accordance with its terms, have been duly done and performed;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, and for the equal and proportionate
benefit of the holders of the Notes, the Issuer and the Trustee hereby agree as
follows:
SECTION 1. Deletion of Certain Sections and Provisions. The Indenture
is hereby amended to delete the following sections and clauses in their entirety
and to insert in lieu of each such section the phrase "[Intentionally Omitted]":
Sections 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 11.5, 11.6,
clauses (4), (5), (6) and (7) of Section 4.1, and clauses (1), (3), (4) and (5)
of Section 8.1. Any and all references to the foregoing sections and any and all
obligations thereunder related solely to such sections are hereby deleted
throughout the Indenture, and such sections and references shall be of no
further force or effect. All definitions in the Indenture which are used
exclusively in the sections and clauses deleted pursuant to the immediately
preceding sentence are hereby deleted.
SECTION 2. Other Amendments to the Indenture.
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(a) The first paragraph of Section 11.2 is hereby amended
and restated in its entirety as follows:
SECTION 11.2 Notice of Redemption; Partial
Redemptions. Notice of redemption to the holders of Securities
to be redeemed as a whole or in part shall be given by mailing
notice of such redemption by first class mail, postage
prepaid, at least 3 days and not more than 60 days prior to
the date fixed for redemption to such holders of Securities at
their last addresses as they shall appear upon the registry
books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly
given, whether or not the holder receives the notice. Failure
to give notice by mail, or any defect in the notice to the
holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for
the redemption of any other Security.
(b) The reverse of each Note is hereby amended to delete the
sentence "Notice of redemption shall be mailed at least 30 and not more than 60
days prior to the date fixed for redemption to each holder of Securities to be
redeemed at his registered address." in its entirety and to insert in lieu
thereof "Notice of redemption shall be mailed at least 3 and not more than 60
days prior to the date fixed for redemption to each holder of Securities to be
redeemed at its last registered address."
SECTION 3. Effectiveness of Supplemental Indenture;
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Operativeness of Amendments.
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(a) This Supplemental Indenture shall become effective when,
and only when, all of the following conditions shall have been satisfied:
(1) duly executed counterparts hereof shall have been
executed and delivered by the Issuer and the Trustee; and
(2) the Issuer shall have received the written consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding to effect the amendments to the Indenture set forth
herein.
(b) Notwithstanding the foregoing, the amendments to the
Indenture set forth in this Supplemental Indenture shall become operative when,
and only when, all of the following additional conditions shall have been
satisfied:
(1) the Issuer shall have accepted the Notes validly tendered
in connection with the written consents referred to in the immediately preceding
clause (a)(2) as of the Settlement Date (as defined in the Solicitation
Statement); and
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(d) the Transaction Condition (as defined in the Solicitation
Statement) shall have been satisfied.
SECTION 4. Reference to and Effect on the Indenture
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(a) On and after the effective date of this Supplemental
Indenture, each reference in the Indenture to "this Indenture," "hereunder,"
"hereof," or "herein" shall mean and be a reference to the Indenture as
supplemented by this Supplemental Indenture unless the context otherwise
requires. The Indenture, as supplemented by this Supplemental Indenture, shall
be read, taken and construed as one and the same instrument.
(b) Except as specifically amended above, the Indenture shall
remain in full force and effect and is hereby ratified and confirmed.
SECTION 5. Governing Law. This Supplemental Indenture shall be deemed
to be a contract under the laws of the State of New York and for all purposes
shall be construed in accordance with the laws of said state, except as may
otherwise be required by mandatory provisions of law.
SECTION 6. Defined Terms. Unless otherwise indicated, capitalized terms
used herein and not defined shall have the respective meanings given such terms
in the Indenture.
SECTION 7. Trust Indenture Act Controls. No modification of any
provisions of the Indenture effected by this Supplemental Indenture is intended
to eliminate or limit any provision of the Indenture that is required to be
included therein by the Trust Indenture Act of 1939, as amended, as in force as
of the effectiveness of this Supplemental Indenture.
SECTION 8. Trustee Disclaimer; Trust. The recitals contained in this
Supplemental Indenture shall be taken as the statements of the Issuer and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture. The Trustee accepts the trust created by the Indenture, as
supplemented by this Supplemental Indenture, and agrees to perform the same upon
the terms and conditions of the Indenture, as supplemented hereby.
SECTION 9. Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10. Effect of Headings. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 11. Severability. In case any provision of this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be effected or
impaired thereby.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed as of the day and year first above written.
ISSUERS:
XXXXX'X CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION
(successor to First Trust National
Association)
By: /s/ X. Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
