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XXXXXXX & XXXXX, INC.,
MACPHERSON MEISTERGRAM, INC.,
as Subsidiary Guarantor
AND
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of January 3, 1997
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Supplementing and Amending the Indenture
dated as of
January 3, 1997
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of January 3, 1997, is among
XXXXXXX & XXXXX, INC., a Delaware corporation (hereinafter called the
"Company"), MACPHERSON MEISTERGRAM, INC. ("Macpherson"), a North Carolina
corporation ("Macpherson"), and IBJ XXXXXXXX BANK & TRUST COMPANY (hereinafter
called the "Trustee"). Any capitalized term used in this First Supplemental
Indenture and not defined herein shall have the meaning specified in the
Original Indenture (as defined below).
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of the Company's
12 1/4% Series A Senior Notes Due 2003 (the "Initial Securities") and, if and
when issued pursuant to a registered exchange for Initial Securities, an issue
of the Company's 12 1/4% Series B Senior Notes Due 2003 (the "Exchange
Securities") and, if and when issued pursuant to a private exchange for Initial
Securities, an issue of the Company's 12 1/4% Series C Senior Notes Due 2003
(the "Private Exchange Securities," together with the Exchange Securities and
the Initial Securities, the "Securities"), of substantially the tenor and in the
aggregate principal amount set forth in the Indenture; and the Company and the
Subsidiary Guarantors have heretofore made, executed and delivered to the
Trustee its Indenture dated as of January 3, 1997 (the "Original Indenture")
pursuant to which the Securities are issuable.
The Company's obligations under the Original Indenture and the Securities
are guaranteed by the Subsidiary Guarantors.
It is deemed desirable to supplement and amend the Original Indenture to
add a Restricted Subsidiary of the Company as a Subsidiary Guarantor (the
Original Indenture, as so supplemented and amended by this First Supplemental
Indenture, being sometimes referred to herein as the "Indenture").
Article XIII, Section 13.5 of the Original Indenture provides that certain
Subsidiaries of the Company shall become a Subsidiary Guarantor by executing and
delivering to the Trustee (a) a supplemental indenture, in form and substance
satisfactory to, and executed by, the Trustee and executed by the Company, which
subjects such Subsidiary to the provisions of the Indenture as a Subsidiary
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Subsidiary and
constitutes the legal, valid, binding and enforceable obligation of such
Subsidiary (subject to such customary exceptions concerning creditors' rights
and equitable principles).
The Initial Securities were issued on January 3, 1997 under the Original
Indenture and no Exchange Securities or Private Exchange Securities have been
issued as of the date hereof.
1
All things necessary to make this First Supplemental Indenture, and to
make the Original Indenture a valid agreement of the Company and Macpherson, in
accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities (together with the related Subsidiary Guarantees) by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all
Holders of the Securities (together with the related Subsidiary Guarantees), as
follows:
ARTICLE I
SECTION 1.1. Addition of Macpherson as a Subsidiary Guarantor. Macpherson
by execution of this First Supplemental Indenture hereby agrees to be bound by
the terms of the Indenture as a Subsidiary Guarantor and agrees to be subject to
the provisions of the Indenture applicable to Subsidiary Guarantors as though
originally a signatory and party to the Original Indenture.
ARTICLE II
REPRESENTATIONS
AND COVENANTS OF THE COMPANY
AND THE SUBSIDIARY GUARANTOR
SECTION 2.1. Authority of the Company. The Company represents and warrants
that it is duly authorized by a resolution of the Special Committee of the Board
of Directors to execute and deliver this First Supplemental Indenture, and all
corporate action on its part required for the execution and delivery of this
First Supplemental Indenture has been duly and effectively taken.
SECTION 2.2. Authority of Macpherson. Macpherson represents and warrants
that it is duly authorized by a resolution of its Board of Directors to execute
and deliver this First Supplemental Indenture, and all corporate action on its
part required for the execution and delivery of this First Supplemental
Indenture has been duly and effectively taken.
ARTICLE III
CONCERNING THE TRUSTEE
SECTION 3.1. Acceptance of Trusts. The Trustee accepts the trust hereunder
and agrees to perform the same, but only upon the terms and conditions set forth
in the Indenture, to all of which the Company, the Subsidiary Guarantors party
thereto and the respective Holders of Securities at any time hereafter
outstanding agree by their acceptance thereof.
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SECTION 3.2. Responsibility of Trustee for Recitals, etc. The recitals and
statements contained in this First Supplemental Indenture shall be taken as the
responsibility of the Company for the correctness of the same. The Trustee makes
no representations as to the validity or sufficiency of this First Supplemental
Indenture, except that the Trustee is duly authorized to execute and deliver
this First Supplemental Indenture.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.1. Relation to the Indenture. The provisions of this First
Supplemental Indenture shall be deemed to be effective immediately upon the
execution and delivery hereof. This First Supplemental Indenture and all the
terms and provisions herein contained shall form a part of the Indenture as
fully and with the same effect as if all such terms and provisions had been set
forth in the Original Indenture. The Original Indenture is hereby ratified and
confirmed and shall remain and continue in full force and effect in accordance
with the terms and provisions thereof, as supplemented and amended by the First
Supplemental Indenture, and the Original Indenture and this First Supplemental
Indenture shall be read, taken and construed together as one instrument.
SECTION 4.2. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 4.3. Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, all as of the day and year first above written.
XXXXXXX & XXXXX, INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: CEO
MACPHERSON MEISTERGRAM, INC.,
as Subsidiary Guarantor
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: CEO
IBJ XXXXXXXX BANK & TRUST
COMPANY,
as Trustee
By: /s/ Xxx Xxxxxx
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Name: XXX XXXXXX
Title: VICE PRESIDENT
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