Exhibit 4.1
SUPPLEMENTAL INDENTURE
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XXXXXX SCIENTIFIC INTERNATIONAL INC.
6 3/4% SENIOR SUBORDINATED NOTES DUE 2014
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 20, 2006
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THE BANK OF NEW YORK TRUST COMPANY, N.A.,
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE, dated as of September 20, 2006, between
Xxxxxx Scientific International Inc., a Delaware corporation (the "Company"),
and The Bank of New York Trust Company, N.A. (the "Trustee").
WHEREAS, the Company and the Trustee are parties to an Indenture, dated as
of August 3, 2004 (the "Indenture"), pursuant to which the Company issued its
6 3/4% Senior Subordinated Notes Due 2014 (the "Notes");
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company to authorize and approve amendments (the
"Proposed Amendments") to the Indenture;
WHEREAS, Section 9.2 of the Indenture provides that the Company and the
Trustee may amend the Indenture and the Notes with the written consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding;
WHEREAS, the Company has distributed a Consent Solicitation Statement,
dated September 6, 2006 (the "Solicitation Statement"), and accompanying Consent
Form to the Holders of the Notes in connection with the Proposed Amendments as
described in the Solicitation Statement;
WHEREAS, the Holders of not less than a majority in aggregate principal
amount of the Notes outstanding have approved the Proposed Amendments to the
provisions of the Indenture; and
WHEREAS, the execution and delivery of this instrument have been duly
authorized and all conditions and requirements necessary to make this instrument
a valid and binding agreement have been duly performed and complied with;
NOW, THEREFORE, for and in consideration of the premises and other good
and valuable consideration, receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed, for the equal proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE 1. AMENDMENT OF SECTION 4.18 AND SECTION 4.20
Section 1.01. The first paragraph of Section 4.18 of the Indenture is
hereby amended by inserting the following clause at the end of the second to
last sentence:
"; provided however, that the filing of the reports specified in
Sections 13 and 15(d) of the Exchange Act by an entity that is the
direct or indirect parent of the Company will satisfy the requirements
of this Section 4.18 so long as such entity is an obligor or guarantor
on the indenture securities; and provided further that the reports of
such entity will not be required to include condensed consolidating
financial information for the Company in a footnote to the financial
statements of such entity."
Section 1.02. Section 4.20 of the Indenture is hereby amended to read in
its entirety as follows:
"EFFECT OF CREDIT RATING ON CERTAIN COVENANTS. The Company's
obligation to comply with the covenants set forth in Sections 4.3,
4.4, 4.5, 4.6, 4.7, 4.9, 4.10, 4.11, 4.12 and Section 5.1(a)(ii)
hereof shall be suspended (and the failure of the Company to comply
with such covenants shall not constitute an Event of Default pursuant
to Section 6.1 hereof) at any time when, but only for so long as, the
Notes have a Minimum Rating from either S&P or Xxxxx'x.
Notwithstanding the foregoing, in the event that the suspended
covenants have not been terminated and the credit rating of the Notes
has been downgraded from a Minimum Rating, the suspended covenants
shall be reinstated in full force and effect. On the first date on
which the Notes have a Minimum Rating from both S&P and Xxxxx'x, the
covenants of the Company set forth in Sections 4.3, 4.4, 4.5, 4.6,
4.7, 4.9, 4.10, 4.11, 4.12 and Section 5.1(a)(ii) hereof shall cease
to apply to the Company as of and at all times after such date,
regardless of whether the Notes fails to maintain a Minimum Rating
from either S&P or Xxxxx'x thereafter."
ARTICLE 2. MISCELLANEOUS
Section 2.01. It shall be a condition precedent to the Company's ability
to take the actions contemplated by this Supplemental Indenture that the merger
of a wholly owned subsidiary of Thermo Electron Corporation with and into the
Company, with the Company surviving as a wholly owned subsidiary of Thermo
Electron Corporation shall have been consummated.
Section 2.02. On the date hereof, the Indenture shall be supplemented and
amended in accordance herewith, and this First Supplemental Indenture shall form
a part of the Indenture for all purposes, and the Holder of every Security
heretofore or hereafter authenticated and delivered under the Indenture shall be
bound thereby. The Trustee accepts the trusts created by the Indenture, as
amended and supplemented by this First Supplemental Indenture, and agrees to
perform the same upon the terms and conditions of the Indenture, as amended and
supplemented by this First Supplemental Indenture.
Section 2.03. All capitalized terms used and not defined herein shall have
the respective meanings assigned to them in the Indenture.
Section 2.04. This First Supplemental Indenture shall become effective as
of the date hereof at such time as executed counterparts of this First
Supplemental Indenture have been delivered by each party hereto to the other
party hereto.
Section 2.05. Each of the Company and the Trustee hereby confirms and
reaffirms the Indenture in every particular except as amended and supplemented
by this First Supplemental Indenture. Except as supplemented and amended hereby,
all provisions in the Indenture and the First Supplemental Indenture shall
remain in full force and effect.
Section 2.06. All covenants and agreements in this First Supplemental
Indenture by the Company or the Trustee shall bind their respective successors
and assigns, whether so expressed or not.
Section 2.07. In case any provisions in this First 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 2.08. Nothing in this First Supplemental Indenture express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders of the Notes, any benefit or any
legal or equitable right, remedy or claim under the Indenture.
Section 2.09. The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
First Supplemental Indenture.
Section 2.10. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this First
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which are made solely by the Company.
Section 2.11. In entering into this First Supplemental Indenture, the
Trustee shall be entitled to the benefit of every provision of the Original
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 2.12. All provisions of this First Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as amended and supplemented by this First Supplemental Indenture,
shall be read, taken and construed as one and the same instrument and all
provisions in the Indenture and the Notes shall remain in full force and effect.
Section 2.13. All covenants and agreements in this First Supplemental
Indenture by the Company shall be
binding upon and accrue to the benefit of their respective successors. All
covenants and agreements in this First Supplemental Indenture by the Trustee
shall be binding upon and accrue to the benefit of its successors.
Section 2.14. This First Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York 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.
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
XXXXXX SCIENTIFIC INTERNATIONAL INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Vice President & Chief Financial Officer
THE BANK OF NEW YORK TRUST COMPANY, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President
