FIFTH SUPPLEMENTAL INDENTURE
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Exhibit 4.1
FIFTH SUPPLEMENTAL INDENTURE (this "Fifth Supplemental Indenture"), dated as of April 1, 2013, among NBTY, Inc., a Delaware corporation (the "Company"), Perfectly Pure, LLC, a Delaware limited liability company and a subsidiary of the Company (the "Guaranteeing Subsidiary"), and The Bank of New York Mellon, as trustee under the Indenture referred to below (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of October 1, 2010, as amended and supplemented through the date of this Fifth Supplemental Indenture (the "Indenture"), providing for the issuance of 9% Senior Notes due 2018 (the "Notes");
WHEREAS, pursuant to Section 9.5 of the Indenture, the Trustee is authorized to execute and deliver this Fifth Supplemental Indenture.
Section 1. RATIFICATION OF INDENTURE. Except as specifically modified herein, the Indenture is in all respects ratified and confirmed and shall remain in full force and effect in accordance with its terms.
Section 2. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture, unless the context otherwise requires.
Section 3. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Guarantees and in the Indenture including but not limited to Article X thereof.
Section 4. NO RECOURSE AGAINST OTHERS. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Company or any Guarantor shall not have any liability for any obligations of the Company or any Guarantor under the Notes, the Guarantees or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release shall be part of the consideration for the issue of the Notes.
Section 5. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6. WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE GUARANTEEING SUBSIDIARY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7. COUNTERPARTS. The parties may sign any number of copies of this Fifth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement. Delivery of an executed counterpart of a signature page to this Fifth Supplemental Indenture by telecopier, facsimile or other electronic transmission (i.e., a "pdf" or "tif") shall be effective as delivery of a manually executed counterpart thereof.
Section 8. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
Section 9. RECITALS; TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fifth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary and the Company. In acting hereunder, the Trustee shall be entitled to the rights, protections and immunities given to it under the Indenture.
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NBTY, INC. | ||||||
By: |
/s/ XXXXXXX XXXXXXX |
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Name: | Xxxxxxx Xxxxxxx | |||||
Title: | Chief Financial Officer | |||||
PERFECTLY PURE, LLC |
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By: | /s/ XXXXXXX XXXXXXX |
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Name: | Xxxxxxx Xxxxxxx | |||||
Title: | Senior Vice President & Chief Financial Officer |
[Signature Page to Fifth Supplemental Indenture]
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THE BANK OF NEW YORK MELLON, as Trustee |
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By: |
/s/ XXXXXXX XXXXXX |
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Name: | Xxxxxxx Xxxxxx | |||||
Title: | Vice President |
[Signature Page to Fifth Supplemental Indenture]
W I T N E S S E T H