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Exhibit 4.6
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, (this "SUPPLEMENTAL
INDENTURE"), dated as of August 14, 1997, is made by and between XXXX NATIONAL
GROUP, INC., a corporation duly formed and validly existing under the laws of
the State of Delaware (the "ISSUER"), and NORWEST BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (the "TRUSTEE").
RECITALS:
A. The Issuer and the Trustee have entered into an Indenture dated as
of September 30, 1993 (the "INDENTURE").
B. Pursuant to the Indenture, the Issuer issued and the Trustee
authenticated and delivered an aggregate principal amount of $190,000,000 of the
Issuer's 11 1/4% Senior Notes due 2001.
C. Section 9.02 of the Indenture provides, among other things, that
with the written consent of the Securityholders of not less than a majority in
aggregate principal amount of the Securities then outstanding (the "REQUISITE
CONSENTS"), the Issuer, when authorized by a resolution of its Board of
Directors, and the Trustee, may from time to time amend or supplement the
Indenture, subject to certain exceptions specified in Section 9.02 of the
Indenture.
D. Pursuant to various letter agreements, the Issuer has obtained the
Requisite Consents to the issuance of an aggregate principal amount not to
exceed $165,838,000 of its Senior Subordinated Notes due 2007.
E. This Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Issuer.
F. The Issuer has delivered, or caused to be delivered, to the Trustee,
an Officer's Certificate and an Opinion of Counsel stating that all conditions
precedent and covenants, if any, provided for in the Indenture relating to this
Supplemental Indenture have been satisfied.
NOW THEREFORE, each party agrees for the benefit of the other party and
for the equal and ratable benefit of all Securityholders, as follows:
AGREEMENT:
SECTION 1. DEFINITIONS. Capitalized terms used in this Supplemental
Indenture and not otherwise defined herein have the meanings given them in the
Indenture.
SECTION 2. AMENDMENT TO SECTION 4.09 OF THE INDENTURE. The second
paragraph of Section 4.09 of the Indenture is hereby amended by the addition of
a new clause (d) thereto, reading as set forth below, and by redesignating the
existing clauses (d) through (i) thereof in appropriate order as clauses (e)
through (j):
(d) up to $165,838,000 aggregate principal amount of the Company's
Senior Subordinated Notes due 2007, provided that the terms of
the subordination applicable thereto are substantially the
same as the terms of the subordination applicable to the
Company's 97/8% Senior Subordinated Notes due 2006, which were
issued in November 1996,
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SECTION 3. MISCELLANEOUS.
3.1 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution and delivery
of this Supplemental Indenture by the Issuer and the Trustee, the Indenture
shall be supplemented in accordance herewith, and this Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Securityholder
heretofore or hereafter authenticated and delivered under the Indenture shall be
bound thereby. Except as supplemented hereby, all provisions of the Indenture
shall remain in full force and effect.
3.2 INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER. This
Supplemental Indenture is an indenture supplemental to and in implementation of
the Indenture, and the Indenture and this Supplemental Indenture shall
henceforth be read and construed together.
3.3 CONFIRMATION AND PRESERVATION OF THE INDENTURE. The Indenture as
supplemented by this Supplemental Indenture is in all respects confirmed and
preserved.
3.4 CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939, as amended (the "ACT"), that is required under such
Act to be part of and govern any provision of this Supplemental Indenture, the
provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Act that may be so modified
or excluded, the provisions of the Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this Supplemental Indenture, as the case may
be.
3.5 SEPARABILITY CLAUSE. 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 affected or
impaired thereby.
3.6 EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
3.7 BENEFITS OF SUPPLEMENTAL INDENTURE. Nothing in this Supplemental
Indenture, the Indenture, or the Securities, express or implied, shall give to
any Person, other than the parties hereto and thereto and their successors
hereunder and thereunder, and the Securityholders, any benefit of any legal or
equitable right, remedy or claim under the Indenture, the Supplemental Indenture
or the Securities.
3.8 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Supplemental Indenture by the Issuer shall bind its successors and assigns,
whether so expressed or not.
3.9 NEW YORK LAW TO GOVERN. 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 AND ENFORCED IN ACCORDANCE WITH SUCH LAWS OF SAID STATE,
EXCEPT AS MAY OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
3.10 COUNTERPARTS. This Supplemental Indenture may be executed in two
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date and the year first above written.
XXXX NATIONAL GROUP, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President & Treasurer
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Corporate Trust Officer
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