SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
June 18, 1999 between Xxxxxx Xxxxxxxx Industries, Inc., a Delaware corporation,
Sellers & Xxxxxxxxx Inc., a New Jersey corporation, and Madison Furniture
Industries, Inc., a Mississippi corporation (collectively, the "Additional
Guarantors"), Falcon Products, Inc., a Delaware corporation (the "Company"),
Falcon Holdings, Inc., a Missouri corporation, Xxxx Furniture Corporation, a New
York corporation, Xxxxxxx Industries, Inc., an Illinois corporation, SY
Acquisition, Inc., a Delaware corporation (collectively, the "Guarantors") and
The Bank of New York, a New York banking corporation, 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 Guarantors have heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated as of June 17,
1999, providing for the issuance of an aggregate principal amount of
$100,000,000 of 11M% Series A and Series B Senior Securities due 2009;
WHEREAS, Section 4.26 of the Indenture provides that under certain
circumstances the Company and the Guarantors are required to cause the
Additional Guarantors to execute and deliver to the Trustee a supplemental
indenture pursuant to which the Additional Guarantors shall unconditionally
guarantee all of the Company's Obligations under the Indenture and the
Securities pursuant to a guarantee (the "Additional Guarantee") on the terms and
conditions of the Guarantee by the Guarantors in Article 11 of the Indenture and
on the other terms and conditions set forth herein; and
WHEREAS, pursuant to Section 7.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto mutually covenant and agree for the equal and ratable benefit of
the holders of the Securities as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Additional Guarantors hereby agrees,
jointly and severally with all other guarantors, to guarantee the Company's
Obligations under the Indenture and the Securities on the terms and subject to
the conditions set forth herein and in Article 11 of the Indenture (including
the obligation to pay Liquidated Damages under the provisions of the
Registration Rights Agreement) and to be bound by all other applicable
provisions of the Indenture. Pursuant to Section 11.01 of the Indenture, the
Additional Guarantors agree that the Subsidiary Guarantees set forth in Article
11 of the Indenture, as supplemented by its agreement to guarantee contained
herein shall remain in full force and effect and apply to all of the Securities
notwithstanding any failure by the Additional Guarantors to endorse on such
Securities a notation of the Subsidiary Guarantor.
3. RELEASE OF ADDITIONAL GUARANTOR. In the event that the holders of
any of the Company's other Indebtedness which is guaranteed by the Additional
Guarantors release the Additional Guarantors from its guarantee in respect of
such other Indebtedness, except a discharge or release by or as a result of any
payment under the guarantee of such other Indebtedness by the Additional
Guarantors, the Additional Guarantors shall be automatically and unconditionally
released and discharged from its obligations under this Additional Guarantee;
provided however, if, after such release, any guarantee under such other
Indebtedness is subsequently reincurred or reinstated, then such Additional
Guarantors reincurring or reinstating such guarantee under such other
Indebtedness shall execute and reinstate its Additional Guarantee hereunder.
Upon receipt of an Officers' Certificate, the Trustee shall execute any
documents reasonably requested by the Company, the Guarantors or the Additional
Guarantors in order to evidence the release of such Additional Guarantors from
its obligations under the Additional Guarantee.
4. NO RECOURSE AGAINST OTHERS. No direct or indirect stockholder,
employee, officer or director, as such, past, present or future of the Company,
the Guarantors or the Additional Guarantors or any successor entity shall have
any personal liability for any Obligations of the Company, the Guarantors or the
Additional Guarantors or any successor entity under the Additional Guarantee, by
reason of his or its status as such stockholder, employee, officer or director.
Each Holder by accepting a Security waives and releases all such
liability, and such waiver and release is part of the consideration for the
issuance of the Securities.
5. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. COUNTERPARTS. This Supplemental Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
7. EFFECT OF THE HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
ADDITIONAL GUARANTORS:
XXXXXX XXXXXXXX INDUSTRIES, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
SELLERS & XXXXXXXXX INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
MADISON FURNITURE INDUSTRIES, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
COMPANY:
FALCON PRODUCTS, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
GUARANTORS:
FALCON HOLDINGS, INC.,
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
XXXX FURNITURE CORPORATION
By:
------------------------------------
Name: Xxxxxxx X Xxxxxxx
Title:
XXXXXXX INDUSTRIES, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
SY ACQUISITION, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
TRUSTEE:
THE BANK OF NEW YORK
By:
------------------------------------
Name:
Title:
