Exhibit 4.01
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of July 1,
1999, between Xxxxxxx Xxxxx Rental Holdings, L.P., a Pennsylvania limited
partnership (the "Company"), and State Street Bank and Trust Company, as trustee
under the Indenture referred to below (the "Trustee"). Capitalized terms used
herein without definition shall have the meanings assigned to them in the
Indenture.
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of July 22, 1998, providing for the
issuance of 13 3/8% Senior Discount Debentures in an aggregate principal amount
at maturity of $48.0 million (the "Debentures");
WHEREAS, Section 9.01 of the Indenture provides that the Issuers, the
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or
the Notes without the consent of any Holder, among other things, to cure any
ambiguity, defect or inconsistency;
WHEREAS, the Management Committee has determined that the definition of the
term "Subsidiary" in the Indenture is inconsistent with the intent of the
parties as of the date of the Indenture and that it is necessary to cure such
inconsistency; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Trustee
and the Company mutually covenant and agree for the equal and ratable benefit
of the Holders of the Notes as follows:
1. Definitions. The definition of the term "Subsidiary" in Section 1.01
of the Indenture shall read as follows:
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the
shares of Capital Stock is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a)
the sole general partner or the managing general partner of which is
such Person, a Subsidiary of such Person or a general partner of such
Person or Subsidiary or (b) the only general partners of which are
such Person, one or more Subsidiaries of such Person (other than an
Unrestricted Subsidiary) or a general partner of such
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Person or Subsidiary (or any combination thereof); provided,
however, that in no case shall Holdings be deemed a Subsidiary of
the Company.
2. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
3. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
4. Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction hereof.
5. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Company.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
XXXXXXX XXXXX RENTAL HOLDINGS, L.P.
By: ACR Management, L.L.C., its general partner
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY as Trustee
By: /s/ Laurel Xxxxxx-Xxxxxxxxx
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Name: Laurel Xxxxxx-Xxxxxxxxx
Title: Assistant Vice President
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