SECOND SUPPLEMENTAL INDENTURE
Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE, dated as of May 5, 2007, between Xxxx & Xxxxxxx Holdings Corp.,
a Delaware corporation (the “Company”), and The Bank of New York, as trustee under the
Indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS, the Company and the Trustee heretofore executed and delivered an Indenture, dated as
of June 5, 2003, as amended by a First Supplemental Indenture dated as of June 30, 2003 (the
“Indenture”), providing for the issuance of the 10 3/8% Senior Notes due 2013 (the
“Notes”) of the Company (capitalized terms used herein but not otherwise defined have the
meanings ascribed thereto in the Indenture);
WHEREAS, Section 9.2 of the Indenture provides that the Company and the Trustee may amend or
supplement the Indenture with the consent of the Holders of at least a majority in principal amount
of the Notes then outstanding;
WHEREAS, the Company desires to amend certain provisions of the Indenture, as set forth in
Article I hereof;
WHEREAS, the Holders of at least a majority in principal amount of the Notes outstanding have
consented to the amendments effected by this Second Supplemental Indenture; and
WHEREAS, this Second Supplemental Indenture has been duly authorized by all necessary
corporate action on the part of each of the Company and the Trustee;
WHEREAS, all other acts and proceedings required by law and by the Indenture to make this
Second Supplemental Indenture a valid and binding agreement for the purposes expressed herein, in
accordance with its terms, have been done and performed;
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:
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ARTICLE I
Amendments to the Indenture
Section 1.1 Amendments to Articles One, Four, Five, Six and Eight.
(a) Section 4.3 (Reports) shall be deleted in its entirety and shall be replaced with
the following:
“The Issuer shall comply with Section 314(a)(1) of the TIA.”
(b) Section 4.4 (Compliance Certificate) shall be deleted in its entirety and shall be
replaced with the following:
“The Issuers and the Guarantors shall comply with Section 314(a)(4) of the TIA.”
(c) the Company shall be released from its obligations under the following sections of
the Indenture, each of which shall be deleted in its entirety and shall be replaced with
“[intentionally omitted]”: Section 4.5 (Taxes); Section 4.6 (Stay, Extension and Usury
Laws); Section 4.7 (Limitation on Restricted Payments); Section 4.8 (Limitation on Dividend
and Other Payment Restrictions Affecting Subsidiaries); Section 4.9 (Limitation on
Incurrence of Additional Indebtedness); Section 4.10 (Limitation on Asset Sales); Section
4.11 (Limitation on Transactions with Affiliates); Section 4.12 (Limitation on Liens);
Section 4.13 (Maintenance of Corporate Separateness); Section 4.14 (Offer to Repurchase Upon
Change of Control); Section 4.15 (Payments for Consent); Section 4.16 (Limitation on
Preferred Stock of Restricted Subsidiaries and Common Stock of Insurance Subsidiaries);
Section 4.17 (Conduct of Business);
(d) Section 5.1 (Merger, Consolidation, or Sale of Assets) shall be amended by deleting
in its entirety each of clauses (2) and (3) of the first paragraph and the second, fifth and
sixth paragraphs;
(e) Section 6.1 (Events of Default) shall be amended by deleting all references to
“Significant Subsidiary” and by deleting in its entirety each of clauses (d) and (e);
(f) Section 8.4 (Conditions to Legal or Covenant Defeasance) shall be amended by
deleting in its entirety each of clauses (4) and (5);
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(g) failure to comply with the terms of any of the covenants or provisions of the
Indenture deleted hereby shall no longer constitute a default or an Event of Default under the Indenture and shall no longer have any other consequence under the
Indenture; and
(h) all definitions set forth in Section 1.1 of the Indenture that relate to defined
terms used solely in covenants or sections deleted hereby are deleted in their entirety.
ARTICLE II
Miscellaneous
Section 2.1 Effectiveness of Second Supplemental Indenture. This Second Supplemental
Indenture shall become effective as of 12:01 a.m. on the date set forth in the first paragraph
hereof upon the execution and delivery of this Second Supplemental Indenture by the Company and the
Trustee in accordance with the provisions of Sections 9.2 and 9.6 of the Indenture. From and after
the effective time of this Second Supplemental Indenture, the Indenture shall be amended and
supplemented in accordance herewith, and this Second Supplemental Indenture shall form a part of
the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and
delivered under the Indenture shall be bound hereby and thereby. Prior to May 7, 2007, the Company
may terminate this Second Supplemental Indenture upon written notice to the Trustee (it being
understood that the Company, subsequent thereto, will enter into a substitute supplemental
indenture).
Section 2.2 Indenture Remains in Full Force and Effect. Except as supplemented or
amended hereby, all provisions in the Indenture shall remain in full force and effect.
Section 2.3 Indenture and Second Supplemental Indenture Construed Together. This
Second Supplemental Indenture is an indenture supplemental to the Indenture, and the Indenture and
this Second Supplemental Indenture shall henceforth be read and construed together.
Section 2.4 Confirmation and Preservation of Indenture. The Indenture as supplemented
or amended by this Second Supplemental Indenture is in all respects confirmed and preserved.
Section 2.5 Conflict with Trust Indenture Act. If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with any provision of the TIA that is
required under the TIA to be part of and govern any provision of this Second Supplemental
Indenture, the provision of the TIA shall control. If any provision of this
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Second Supplemental Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so
modified or to be excluded by this Second Supplemental Indenture, as the case may be.
Section 2.6 Severability. 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.
Section 2.7 Benefits of Second Supplemental Indenture. Nothing in this Second
Supplemental Indenture or the Notes, express or implied, shall give to any Person, other than the
parties hereto and thereto and their successors hereunder and thereunder and the Holders of the
Notes, any benefit of any legal or equitable right, remedy or claim under the Indenture, this
Second Supplemental Indenture or the Notes.
Section 2.8 Successors. All agreements of the Company in this Second Supplemental
Indenture shall bind its successors. All agreements of the Trustee in this Second Supplemental
Indenture shall bind its successors.
Section 2.9 Certain Duties and Responsibilities of the Trustee. In entering into this
Second Supplemental Indenture, the Trustee shall be entitled to the benefit of every provision of
the Indenture and the Notes relating to the conduct or affecting the liability or affording
protection to the Trustee, whether or not elsewhere herein so provided.
Section 2.10 Governing Law. This Second Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 2.11 Multiple Originals. The parties may sign any number of copies of this
Second Supplemental Indenture, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
Section 2.12 Headings. The Article and Section headings herein are inserted for
convenience of reference only, are not intended to be considered a part hereof and shall not modify
or restrict any of the terms or provisions hereof.
Section 2.13 The Trustee. The Trustee shall not be responsible in any manner for or
in respect of the validity or sufficiency of this Second Supplemental Indenture or for or in
respect of the recitals contained herein, all of which are made by the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first written above.
| XXXX & XXXXXXX HOLDINGS CORP. | ||||||
| By: | /s/ Xxxx Xxxx Xxxxxxxxx | |||||
| Name: | Xxxx Xxxx Xxxxxxxxx | |||||
| Title: | EVP, CFO & Treasurer | |||||
THE BANK OF NEW YORK, as Trustee |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
[Signature Page for Supplemental Indenture]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be
duly executed as of the date first written above.
| XXXX & XXXXXXX HOLDINGS CORP. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
THE BANK OF NEW YORK, as Trustee |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxxxxx | |||||
| Title: | Vice President | |||||
[Signature Page for Supplemental Indenture]
