Exhibit 10.4
L.SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of June
11, 2003, by and among Xxxxxx Holding Co. (DE), Inc. a Delaware corporation
(the"Company"), the guarantors under the indenture referred to below (including
their successors, the "Guarantors"), and The Bank of New York (as successor to
IBJ Xxxxxxxx Bank & Trust Company), as trustee under the indenture referred to
below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Guarantors have executed and delivered to
the Trustee an indenture, dated as of November 24, 1997 (the "Indenture"),
providing for the issuance of an aggregate principal amount of up to
$270,000,000 of 10% Senior Subordinated Notes due 2007 (the "Securities");
WHEREAS, the Company has entered into a Recapitalization and Stock
Purchase Agreement, dated as of May 7, 2003, by and among the Company, certain
shareholders of Xxxxxx Holding Co. (PA), Inc. and Green Equity Investors III,
L.P. (the "Recapitalization Agreement");
WHEREAS, it is deemed to be in the best interest of the Company to
perform its obligations under the Recapitalization Agreement and to enter into
the transactions contemplated thereby; and
WHEREAS, the Company, the Guarantors and the Trustee hereby desire to
amend the Indenture as follows in order to effect the transactions contemplated
by the Recapitalization Agreement; and
WHEREAS, pursuant to Section 9.02 of the Indenture, the Trustee, the
Company and the Guarantors are 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
Company, the Guarantors and the Trustee mutually covenant and agree for the
equal and ratable benefit of the holders of the Securities as follows:
1. Definitions.
(a) Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the terms and expressions used herein shall have the same meanings as
corresponding terms and expressions used in the Indenture: and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. Amendments. Except as expressly amended hereby, the Indenture is in
all respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby. The
following amendments are hereby incorporated into the Indenture:
(a) The following additional defined terms are hereby included in
Section 1.01 of the Indenture:
"Consent Payments" means the payment of consent fees to the
Holders pursuant to the Company's Consent Solicitation Statement, dated
May 16, 2003, as such statement may be amended or supplemented in
accordance with its terms.
"2003 Recapitalization Agreement" shall mean that certain
Recapitalization and Stock Purchase Agreement, dated as of May 7, 2003,
by and among Holding, Green Equity Investors III, L.P. and the
shareholders listed on the signature pages thereto.
"2003 Recapitalization Transaction" shall mean the transaction
contemplated by or incidental to the 2003 Recapitalization Agreement,
including without limitation the payment of consent fees to the Holders
pursuant to the terms of the Company's Consent Solicitation Statement,
dated May 16, 2003, as such statement may be amended through the
closing date of the 2003 Recapitalization Transaction.
(b) The definitions of the following defined terms included in Section
1.01 of the Indenture are hereby amended as follows:
(i) in clause (1) of the definition of "Permitted
Investments," the reference to Section "4.07(b)(13)(m)" shall be
deleted, and a reference to "Section 4.07 (b)(17)(m)" shall be inserted
in place thereof; and
(ii) in clause (iv) of the third proviso of the definition of
"Specified Affiliate Payments," the reference to Section "4.07(b)(8)
and (11) "shall be deleted, and a reference to "Section 4.07 (b)(8) and
(15)" shall be inserted in place thereof.
(c) Section 4.04 (b) of the Indenture is hereby amended by deleting the
word "and" at the end of clause (vi) thereof, by inserting the following new
clause (vii) thereafter, and by renumbering existing clause (vii) as new clause
"(viii)":
"(vii) in connection with and in order to consummate the 2003
Recapitalization Transaction, the payment of a dividend (the
"Recap Payment") to Holding in an amount up to $45,000,000,
which funds shall be used by Holding to satisfy its
obligations under the 2003 Recapitalization Agreement;
PROVIDED, that the Consent Payments shall be made
concurrently; and"
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(d) Section 4.04 of the Indenture is hereby further amended by
inserting the following additional sentence at the beginning of the second to
last paragraph thereof:
"Notwithstanding anything in this Section 4.04 to the
contrary, following any Recap Payment, (A) the sum of the amounts of
each of clauses (i) through (v) of Section 4.04(a)(3) shall be reset to
$0 as of the first day of the calendar quarter during with such payment
is made (the "Revised Start Date"), thereafter increasing (or
decreasing) in accordance with the terms of such clauses, and (B) for
purposes of calculating the aggregate amount of permissible Restricted
Payments under Section 4.03(a)(3) at any time after the date on which
the Recap Payment is made, the Recap Payment and all other Restricted
Payments made during the period from the Closing Date through the
Revised Start Date shall be disregarded."
(e) Section 4.04 of the Indenture is hereby amended by deleting the
reference to "Section 4.07 (b)(5), (6), (9) or (10)" in the last sentence
thereof, and inserting a reference to "Section 4.07 (b)(5), (6), (9). (10),
(11), (12), (13) or (14)" in place thereof.
(f) Section 4.07(b) of the Indenture is hereby amended by inserting the
following new clauses (11) through (14), and by renumbering the existing clauses
(11) through (14) thereof as "(15)," "(16)," "(17)" and "(18)," respectively:
"(11) following the consummation of the 2003 Recapitalization
Transaction, the payment of annual management, consulting and advisory
fees in an amount up to $1 million and related expenses to Xxxxxxx
Xxxxx & Partners, L.P. and its Affiliates (whether or not such Persons
are Affiliates of the Company) and the entry into agreements with
respect thereto, (12) the payment by the Company to Investcorp of a
one-time fee for credit refinance advisory services in the amount of $1
million in connection with the 2003 Recapitalization Transaction, (13)
the payment by the Company to Xxxxxxx Xxxxx & Partners, L.P. of a
one-time equity commitment fee in the amount of $2.5 million in
connection with the 2003 Recapitalization Transaction, (14) the payment
by the Company to certain officers and employees of the Company and
Xxxxxx Co. of $1,725,000, in the aggregate (a one-time payment), in
connection with the 2003 Recapitalization Transaction,"
(g) Section 4.07(b) of the Indenture is hereby amended by inserting the
following proviso immediately after the reference to "Section 4.03(b)(xii)" at
the end of renumbered clause (18) thereof:
"; PROVIDED, HOWEVER, that the transactions contemplated in
clauses (11) through (14), above, shall not be permitted unless the
Consent Payments shall have been made."
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3. Effectiveness. This Supplemental Indenture shall become effective on
and as of the date written above.
4. Governing Law. THIS 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.
5. Trustee Makes No Representation. The Trustee makes no representation
as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for convenience
of reference only and shall not effect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
XXXXXX HOLDING CO. (DE), INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
XXXXXX HOLDING CO. (PA), INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
XXXXXX CO.
By: _______________________________
Name: _______________________________
Title: _______________________________
WIP TECHNOLOGIES, INC.
By: _______________________________
Name: _______________________________
Title: _______________________________
THE BANK OF NEW YORK
As Trustee
By: _______________________________
Name: _______________________________
Title: _______________________________
