EXHIBIT 99.1
THIS FIRST SUPPLEMENTAL INDENTURE is dated as of January 28, 1999 between
Omega Cabinets, Ltd., a Delaware corporation (the "Company"), Panther Transport,
Inc., an Iowa corporation and a subsidiary of the Company (the "Guarantor"), and
The Chase Manhattan Bank, as trustee under the Indenture hereinafter mentioned
(the "Trustee").
WHEREAS, the Company, the Guarantor and HomeCrest Corporation have
heretofore executed and delivered to the Trustee an indenture dated as of July
24, 1997 (the "Existing Indenture", and the Existing Indenture, as it may from
time to time be supplemented or amended by one or more additional indentures
supplemental thereto entered into pursuant to the applicable provisions thereof,
being hereinafter called the "Indenture"), providing for the creation of and
issuance of $100,000,000 in aggregate principal amount of the Company's 10-1/2%
Senior Subordinated Notes due 2007 (the "Notes");
WHEREAS, HomeCrest Corporation has been merged with and into the Company
with the Company as the surviving corporation;
WHEREAS, the Company and the Guarantor have solicited the consent of the
Holders of the Notes pursuant to a Consent Solicitation Statement dated January
12, 1999 as supplemented by Supplement No. 1 thereto dated January 26, 1999,
Supplement No. 2 thereto dated January 27, 1999 and Supplement No. 3 thereto
dated January 27, 1999 (collectively, the "Consent Solicitation Statement") to
amend the Indenture to (i) modify the definitions of "Board of Directors",
"Guarantors", "Permitted Investments", "Permitted Junior Securities", "Permitted
Liens", "Permitted Refinancing Indebtedness", "Senior Debt" and "Unrestricted
Subsidiary" contained in the Existing Indenture, (ii) add the definitions of
"Guarantor Subsidiary" and "Kitchen Craft Subsidiary" to the Indenture, and
(iii) modify Sections 4.07, 4.08, 4.09, 4.10, 4.17, 10.01, 10.02 and 10.10 of
the Existing Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company and the
Guarantor may amend or supplement the Indenture provided that the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding
have consented and, with respect to the amendments to Article 10 of the Existing
Indenture, the holders of all Senior Debt outstanding have consented;
WHEREAS, the Company has received the consent of the Holders of a majority
in aggregate principal amount of the Notes to the amendments to the Existing
Indenture set forth in the Consent Solicitation Statement and has received the
consent of all holders of Senior Debt to the amendments to Article 10 of the
Existing Indenture set forth in the Consent Solicitation Statement;
WHEREAS, following the execution of this First Supplemental Indenture, the
terms of Article 1 hereof will become operative (the "Operative Date") upon the
consummation of the acquisition by the Company (or any Subsidiary thereof) of at
least 50% of the outstanding capital stock of Kitchen Craft of Canada Ltd., a
Canadian corporation, (the "Acquisition Condition"); and
WHEREAS, the terms of Article 1 of this First Supplemental Indenture shall
be null and void if the Acquisition Condition does not occur.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That, for and in consideration of the premises herein contained and in
order to effect the amendments to the Existing Indenture set forth in the
Consent Solicitation Statement, pursuant to Section 9.02 of the Existing
Indenture, the Company and the Guarantor agree with the Trustee as follows:
ARTICLE 1
Amendment of Existing Indenture
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Section 1.01. Amendment of Section 1.01. Pursuant to Section 9.02 of the
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Existing Indenture, Section 1.01 of the Existing Indenture is hereby amended by:
(a) Amending and restating in its entirety the definition of "Board of
Directors" contained in the Existing Indenture to read as follows:
"Board of Directors" means the Board of Directors of the Company, Holdings
or a Restricted Subsidiary, as context requires, or any authorized committee of
such Board of Directors.
(b) Amending and restating in its entirety the definition of "Guarantors"
contained in the Existing Indenture to read as follows:
"Guarantors" means (i) Panther and (ii) each of the Guarantor Subsidiaries
of the Company that executes a Subsidiary Guarantee in accordance with the
provisions of this Indenture.
(c) Inserting the following definition of "Guarantor Subsidiary" after the
definition of "Guarantors":
"Guarantor Subsidiary" means, with respect to the Company, any Restricted
Subsidiary other than a Kitchen Craft Subsidiary.
(d) Inserting the following definition of "Kitchen Craft Subsidiary" after the
definition of "Guarantor Subsidiary":
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"Kitchen Craft Subsidiary" means, with respect to the Company, (i) Kitchen
Craft of Canada Ltd., a Canadian corporation, (ii) Kitchen Craft Cabinetry Ltd.,
a British Columbia corporation, (iii) Omega Kitchen Craft Holdings Corp., a
Delaware corporation, for so long as the principal asset of Omega Kitchen Craft
Holdings Corp. is the capital stock of Kitchen Craft of Canada Ltd. or any
successor entity thereto, and (iv) any successor entity to any of the foregoing.
(e) Amending and restating in its entirety the definition of "Permitted
Investments" contained in the Existing Indenture to read as follows:
"Permitted Investments" means (a) any Investment in the Company or in a
Restricted Subsidiary; provided, however, that an Investment in a Kitchen Craft
Subsidiary will not be a Permitted Investment if, at the time of such
Investment, the total assets of all of the Kitchen Craft Subsidiaries, taken as
a whole (measured as of the Company's most recently ended fiscal quarter giving
pro forma effect to all Investments made since the end of such fiscal quarter
and determined in good faith by the Board of Directors in accordance with GAAP
consistently applied), represent greater than 50% of the total assets of the
Company and its Subsidiaries, taken as a whole (measured as of the Company's
most recently ended fiscal quarter giving pro forma effect to all Investments
made since the end of such fiscal quarter and determined in good faith by the
Board of Directors in accordance with GAAP consistently applied); (b) any
Investment in Cash Equivalents; (c) any Investment by the Company or any
Restricted Subsidiary in a Person, if as a result of such Investment (i) such
Person becomes a Restricted Subsidiary or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the Company or a Restricted
Subsidiary; (d) any Restricted Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made pursuant to and in
compliance with the provisions of Section 4.10 hereof; (e) any acquisition of
assets solely in exchange for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (f) other Investments in any Person having
an aggregate fair market value (measured on the date each such Investment was
made and without giving effect to subsequent changes in value), when taken
together with all other Investments made pursuant to this clause (f) that are at
the time outstanding, not to exceed $2.0 million; (g) any Investment existing on
the date of the Indenture and any extension or renewals thereof, in each case,
on terms that are substantially similar to those in effect on the date hereof
with respect to such Investment; (h) Permitted Hedging Obligations; (i) loans
and advances to customers or vendors in the ordinary course of business; and (j)
loans to officers, directors and employees in the ordinary course of business.
(f) Amending and restating in its entirety the definition of "Permitted Junior
Securities" contained in the Existing Indenture to read as follows:
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"Permitted Junior Securities" means (i) Equity Interests (other than
Disqualified Stock, including other Equity Interests containing mandatory
redemption provisions) of the Company or any Restricted Subsidiary or (ii) debt
securities of the Company or any Restricted Subsidiary with respect to which no
scheduled principal payment is due before the scheduled maturity date of the
Senior Debt (and any debt securities issued in exchange for Senior Debt) and
that are subordinated to all Senior Debt (and any debt securities issued in
exchange for Senior Debt) to substantially the same extent as, or to a greater
extent than, the Notes and the Subsidiary Guarantees are subordinated to Senior
Debt of the Company and its Restricted Subsidiaries pursuant to Article 10
hereof.
(g) Amending and restating in its entirety the definition of "Permitted Liens"
contained in the Existing Indenture to read as follows:
"Permitted Liens" means (i) Liens on assets of the Company or any of its
Subsidiaries securing Senior Debt that was permitted by the terms of this
Indenture to be incurred; (ii) Liens in favor of the Company or a Restricted
Subsidiary of the Company; (iii) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Subsidiary of the Company; provided that such Liens were in existence prior to
the contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with the
Company; (iv) Liens on property or assets existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such acquisition
and do not extend to any assets other than those of the Person merged into or
consolidated with the Company; (v) Liens to secure the performance of statutory
or regulatory obligations, leases, surety or appeal bonds, performance bonds,
carriers', warehousemans', mechanics', landlords', materialmans' or repairmans'
Liens or other obligations of a like nature incurred in the ordinary course of
business; (vi) Liens to secure Indebtedness (including Capital Lease
Obligations) permitted by clauses (iv) and (x) of the second paragraph of
Section 4.09 hereof covering only the assets acquired with such Indebtedness;
(vii) Liens existing on the date hereof; (viii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly instituted and
diligently concluded, provided that any reserve or other appropriate provision
as shall be required in conformity with GAAP shall have been made therefor; (ix)
Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that do not exceed $5.0
million at any one time outstanding and that (a) are not incurred in connection
with the borrowing of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do not in the aggregate
materially detract from the value of the property or materially impair the use
thereof in the operation of business by the Company or such Subsidiary; (x)
Liens on assets of Restricted Subsidiaries to secure Senior Debt of such
Restricted Subsidiaries that was permitted by this Indenture to be incurred; and
(xi) Liens on assets of Unrestricted Subsidiaries that secure Non-Recourse Debt
of Unrestricted Subsidiaries.
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(h) Amending and restating in its entirety the definition of "Permitted
Refinancing Indebtedness" contained in the Existing Indenture to read as
follows:
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund Indebtedness of the Company or any of its Restricted Subsidiaries;
provided that: (i) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal amount of
(or accreted value, if applicable), plus accrued interest on, the Indebtedness
so extended, refinanced, renewed, replaced, defeased or refunded (plus the
amount of reasonable expenses incurred in connection therewith including
premiums paid, if any, to the holders thereof); (ii) such Permitted Refinancing
Indebtedness has a final maturity date at or later than the final maturity date
of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of, the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (iii) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable to the Holders of Notes as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded, or, in the
case of the New Bank Credit Facility, such Indebtedness is incurred by the
Company or any Subsidiary of the Company, provided that, except as otherwise
provided in Section 4.17, any such Subsidiary that is not a Guarantor prior to
the incurrence of such Indebtedness shall execute a supplemental indenture and
deliver an Opinion of Counsel in the manner described in Article 11 hereof.
(i) Amending and restating in its entirety the definition of "Senior Debt"
contained in the Existing Indenture to read as follows:
"Senior Debt" means (i) all Indebtedness of the Company and its Restricted
Subsidiaries outstanding under the New Bank Credit Facility and all Permitted
Hedging Obligations with respect thereto, (ii) any other Indebtedness of the
Company and its Restricted Subsidiaries permitted to be incurred under the terms
of this Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is on a parity with or subordinated in right
of payment to the Notes or the Subsidiary Guarantees, as applicable, and (iii)
all Obligations with respect to the foregoing; provided that if any payment or
proceeds of any collateral is applied to the Senior Debt and is subsequently set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
the Company or any of its Restricted Subsidiaries, or any claim
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of fraudulent or preferential transfer), the Senior Debt to which such payment
was applied will, for purposes of the Indenture, be deemed to have continued in
existence, notwithstanding such application, and the subordination provisions of
the Indenture will be enforceable as to such Senior Debt as fully as if such
application had never been made. Notwithstanding anything to the contrary in the
foregoing, Senior Debt shall not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company or any of its Restricted
Subsidiaries, (x) any Indebtedness of the Company to any of its Subsidiaries or
Affiliates, (y) any trade payables or (z) any Indebtedness that is incurred in
violation of this Indenture.
(j) Amending and restating in its entirety the definition of "Unrestricted
Subsidiary" contained in the Existing Indenture to read as follows:
"Unrestricted Subsidiary" means, with respect to any Person, (i) any
Subsidiary of such Person (other than Panther, in the case of the Company) that
is designated by the Board of Directors of such Person as an Unrestricted
Subsidiary pursuant to a Board Resolution; but only to the extent that such
Subsidiary: (a) has no Indebtedness other than Non-Recourse Debt; (b) is not,
when designated as an Unrestricted Subsidiary, party to any agreement, contract,
arrangement or understanding with the referent Person or any Restricted
Subsidiary of such Person unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to such Person or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the referent Person; (c) is a Person with respect to
which neither the referent Person nor any of its Restricted Subsidiaries has any
direct or indirect obligation (x) to subscribe for additional Equity Interests
or (y) to maintain or preserve such Subsidiary's financial condition or to cause
such Subsidiary to achieve any specified levels of operating results; (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the referent Person or any of its Restricted Subsidiaries;
and (e) has at least one director on its board of directors that is not a
director or executive officer of the referent Person or any of its Restricted
Subsidiaries and has at least one executive officer that is not a director or
executive officer of the referent Person or any of its Restricted Subsidiaries.
Any such designation by the Board of Directors of such Person shall be evidenced
to the Trustee by filing with the Trustee a certified copy of the Board
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted by Section 4.07 hereof. If, at any time, any Unrestricted Subsidiary
of the Company would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary of the
Company for purposes of this Indenture and any Indebtedness of such Subsidiary
shall be deemed to be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be incurred as of such
date under the terms of Section 4.09 hereof, a Default shall have occurred
hereunder). The Board of Directors of any Person may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary of such Person; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of such Person of any outstanding
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Indebtedness of such Unrestricted Subsidiary and such designation shall only be
permitted if (i) such Indebtedness is permitted by the terms of Section 4.09
hereof, calculated on a pro forma basis as if such designation had occurred at
the beginning of the four-quarter reference period, and (ii) no Default or Event
of Default would be in existence following such designation. If, at any time,
any Unrestricted Subsidiary of the Company would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary of the Company for purposes of this Indenture, and,
except as otherwise provided in Section 4.17, such Subsidiary shall execute a
Subsidiary Guarantee and deliver an Opinion of Counsel, in accordance with the
terms of this Indenture.
Section 1.02. Amendment of Section 4.07. Pursuant to Section 9.02 of the
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Existing Indenture, Section 4.07 of the Existing Indenture is hereby amended and
restated in its entirety to read as follows:
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or
make any other payment or distribution on account of the Company's or any of its
Restricted Subsidiaries' Equity Interests (including, without limitation, any
such payment in connection with any merger or consolidation involving the
Company) or to the direct or indirect holders of the Company's or any of its
Restricted Subsidiaries' Equity Interests in their capacity as such (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Company or to the Company or any of its Restricted Subsidiaries);
(ii) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, any such payment in connection with any merger or
consolidation involving the Company) any Equity Interests of the Company or any
direct or indirect parent of the Company (other than any such Equity Interests
owned by the Company or any Wholly Owned Restricted Subsidiary of the Company);
(iii) make any payment on or with respect to, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is subordinated to
the Notes, except a payment at Stated Maturity; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) no Default or Event of Default shall have occurred and be continuing
or would occur as a consequence thereof; and
(b) the Company would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period, have been permitted to
incur at least $1.00 of additional Indebtedness pursuant to the Consolidated
EBITDA Ratio test set forth in the first paragraph of
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Section 4.09 hereof; and
(c) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted Subsidiaries
after the date hereof (including only Restricted Payments permitted by clauses
(i), (v) and (xi) of the next succeeding paragraph), does not exceed the sum
(without duplication) of (i) 50% of the aggregate amount of the Consolidated Net
Income of the Company for the period (taken as one accounting period) from the
beginning of the first fiscal quarter commencing after the date hereof to the
end of the Company's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted Payment (or,
if such Consolidated Net Income for such period is a deficit, less 100% of such
deficit), plus (ii) 100% of the aggregate net cash proceeds received by the
Company from the issue or sale since the Operative Date of (and as defined in)
the First Supplemental Indenture dated as of January 28, 1999 between the
Company, Panther Transport, Inc. and The Chase Manhattan Bank, as trustee (the
"First Supplemental Indenture"), of Equity Interests of the Company (other than
Disqualified Stock) or of Disqualified Stock or debt securities of the Company
that have been converted into such Equity Interests (other than Equity Interests
(or Disqualified Stock or convertible debt securities) sold to a Subsidiary of
the Company and other than Disqualified Stock or convertible debt securities
that have been converted into Disqualified Stock), plus (iii) 100% of the
aggregate amounts contributed as equity to the Company from the Operative Date
of the First Supplemental Indenture, plus (iv) the amount by which Indebtedness
of the Company or its Restricted Subsidiaries is reduced on the Company's
consolidated balance sheet upon the conversion or exchange subsequent to the
date hereof of any Indebtedness of the Company or its Restricted Subsidiaries
issued after the date hereof that is convertible into or exchangeable for
Capital Stock (other than Disqualified Stock) of the Company (less the amount of
any cash or other property distributed by the Company or any Restricted
Subsidiary upon such conversion or exchange), plus (v) to the extent that any
Restricted Investment that was made after the date hereof is sold for cash or
otherwise liquidated or repaid for cash, the lesser of (A) the cash return of
capital with respect to such Restricted Investment (less the cost of
disposition, if any) and (B) the initial amount of such Restricted Investment,
plus (vi) 50% of any dividends received by the Company or a Wholly Owned
Restricted Subsidiary after the date hereof from an Unrestricted Subsidiary of
the Company to the extent that such dividends were not otherwise included in
Consolidated Net Income of the Company for such period.
The foregoing provisions shall not prohibit, without duplication, (i) the
payment of any dividend within 60 days after the date of declaration thereof, if
at said date of declaration such payment would have complied with the provisions
of this Section 4.07; (ii) the redemption, repurchase, retirement, defeasance or
other acquisition of any subordinated Indebtedness or Equity Interests of the
Company in exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests
of the Company (other than any Disqualified Stock); provided that the amount of
any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded (to
the extent otherwise included) from clause (c) (ii) of the
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preceding paragraph; (iii) the defeasance, redemption, repurchase or other
acquisition of subordinated Indebtedness with the net cash proceeds from an
incurrence of Permitted Refinancing Indebtedness; (iv) the payment of any
dividend by a Restricted Subsidiary of the Company to the holders of its common
Equity Interests on a pro rata basis; (v) payments to Holdings or by the
Company, in either case, for the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of Holdings, the Company or any of
the Company's Restricted Subsidiaries held by any director, officer, employee or
consultant or any of such Persons' heirs, estates or assigns pursuant to or in
connection with any management, employee or consultant agreement, equity
subscription agreement, stock option agreement or stockholders agreement;
provided that the aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $1.5 million in any
twelve-month period and no Default or Event of Default shall have occurred and
be continuing immediately after such transaction; (vi) cash payments to Holdings
or by the Company, in either case, in lieu of fractional shares issuable as
dividends on preferred securities of the Company or any of its Restricted
Subsidiaries; provided that such cash payments shall not exceed $20,000 in the
aggregate in any twelve-month period and no Default or Event of Default shall
have occurred and be continuing immediately after such transaction; (vii)
payments to Holdings or by the Company, in either case, to fund the repurchase,
redemption, retirement or other acquisition of the Contingent Promissory Note or
payments to the Company to permit such payments; (viii) cash dividends on any
series of Disqualified Stock of the Company or any of its Restricted
Subsidiaries to the extent included in Consolidated Interest Expense; provided
that the Company would, at the time of such Restricted Payment and after giving
pro forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Consolidated EBITDA Ratio
test set forth in the first paragraph of Section 4.09 hereof; (ix) payments to
Holdings in amounts equal to the amounts required to pay its franchise taxes and
other fees required to maintain its corporate existence and to provide for other
operating costs in an amount not to exceed $250,000 per fiscal year; (x)
payments to Holdings in amounts required for Holdings to pay federal, state and
local taxes to the extent such taxes are actually owed by Holdings and are
attributable to the Company and its Subsidiaries; (xi) so long as no Default or
Event of Default shall have occurred and be continuing, other Restricted
Payments in an amount not to exceed $2.0 million; (xii) payments to Holdings in
the amounts required for Holdings to make payments pursuant to the Rabbi Trust
in existence on the date hereof and established for the benefit of officers and
employees pursuant to the 1997 Omega Holdings, Inc. Deferred Compensation Plan,
in accordance with the terms thereof as in effect on such date; (xiii) payments
to Holdings of amounts required to enable Holdings to satisfy its obligations
under the purchase price adjustment provisions of the Merger Agreement; and
(xiv) payments to Holdings to repay interest and principal in respect of the
Junior Subordinated Notes and the Bridge Loans. To the extent that any
Restricted Payment is permitted by any one of the foregoing clauses (i) through
(xiv), such Restricted Payment shall not be taken into account for purposes of
calculating the amount of Restricted Payments permitted by any other such
clauses.
The amount of all Restricted Payments (other than cash) shall be the fair
market value on
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the date of the Restricted Payment of the asset(s) or securities proposed to be
transferred or issued by the Company or such Restricted Subsidiary, as the case
may be, pursuant to the Restricted Payment. The fair market value of any non-
cash Restricted Payment shall be determined by the Board of Directors of the
Company whose resolution with respect thereto shall be delivered to the Trustee.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by this Section 4.07 were computed, together with a copy of any
fairness opinion or appraisal required by this Indenture.
The Board of Directors of the Company may designate any Restricted
Subsidiary (other than Panther) to be an Unrestricted Subsidiary if such
designation would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries (except to the extent repaid in cash) in the Subsidiary so
designated shall be deemed to be Restricted Payments at the time of such
designation and shall reduce the amount available for Restricted Payments under
the first paragraph of this Section 4.07. All such outstanding Investments
shall be deemed to constitute Investments in an amount equal to the greatest of
(x) the net book value of such Investments at the time of such designation, (y)
the fair market value of such Investments at the time of such designation and
(z) the original fair market value of such Investments at the time they were
made. Such designation shall only be permitted if such Restricted Payment would
be permitted at such time and if such Restricted Subsidiary otherwise meets the
definition of an Unrestricted Subsidiary.
Section 1.03. Amendment of Section 4.08. Pursuant to Section 9.02 of the
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Existing Indenture, Section 4.08 of the Existing Indenture is hereby amended and
restated in its entirety to read as follows:
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (i)(a) pay dividends or
make any other distributions to the Company or any of its Restricted
Subsidiaries (1) on its Capital Stock or (2) with respect to any other interest
or participation in, or measured by, its profits, or (b) pay any indebtedness
owed to the Company or any of its Restricted Subsidiaries, (ii) make loans or
advances to the Company or any of its Restricted Subsidiaries or (iii) transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness and Liens with respect thereto as in effect
or entered into on the date hereof, (b) the New Bank Credit Facility as in
effect as of the Operative Date of the First Supplemental Indenture, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such
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amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings are no more restrictive with respect to
such dividend and other payment restrictions than those contained in the New
Bank Credit Facility as in effect on the Operative Date of the First
Supplemental Indenture, (c) this Indenture, the Notes and the Subsidiary
Guarantees, (d) applicable law, (e) any instrument governing Indebtedness or
Capital Stock of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired, provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be incurred, (f) customary non-assignment provisions in (A) leases, licenses,
encumbrances, contracts or similar assets entered into or acquired in the
ordinary course of business, (B) any agreement to transfer, or option or right
with respect to the transfer of, any property or assets of the Company or any of
its Restricted Subsidiaries not otherwise prohibited by this Indenture or (C) by
virtue of provisions of security agreements or mortgages securing Indebtedness
of a Restricted Subsidiary that is not otherwise prohibited by this Indenture to
the extent that such provisions restrict the transfer of the property or assets
subject to the Lien created thereby, (g) purchase money obligations for property
acquired in the ordinary course of business that impose restrictions of the
nature described in clause (iii) above on the property so acquired, (h) any
restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Restricted Subsidiary or (i) Permitted
Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are no more
restrictive than those contained in the agreements governing the Indebtedness
being refinanced.
Section 1.04. Amendment of Section 4.09. Pursuant to Section 9.02 of the
------------ -------------------------
Existing Indenture, Section 4.09 of the Existing Indenture is hereby amended and
restated in its entirety to read as follows:
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and the
Company shall not issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of preferred stock; provided, however, that the
Company or any of its Restricted Subsidiaries may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock or preferred stock if the
Consolidated EBITDA Ratio for the Company's most recently ended four full fiscal
quarters for which internal financial statements are available immediately
preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have been at least 2.25 to
11
1.0, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock or preferred stock had been issued, as the case may be,
at the beginning of such four-quarter period.
The provisions of the first paragraph of this Section 4.09 shall not apply
to the incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(i) Indebtedness of the Company and its Restricted Subsidiaries
under the New Bank Credit Facility;
(ii) Existing Indebtedness;
(iii) Indebtedness represented by the Notes and the Subsidiary
Guarantees;
(iv) Indebtedness represented by Capital Lease Obligations in an
aggregate principal amount not to exceed $5.0 million at any time outstanding;
(v) Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace Indebtedness that was
permitted by this Indenture to be incurred;
(vi) intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries; provided, however, that (i) if the Company is
the obligor on such Indebtedness, such Indebtedness is expressly subordinated to
the prior payment in full in cash of all Obligations with respect to the Notes
and (ii)(A) any subsequent issuance or transfer of Equity Interests that results
in any such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary of the Company and (B) any sale or other transfer of any
such Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary of the Company shall be deemed, in each case, to constitute an
incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as
the case may be, that is not permitted by this clause (vi);
(vii) Indebtedness consisting of Permitted Hedging Obligations;
(viii) Indebtedness in respect of performance, surety and similar
bonds provided by the Company in the ordinary course of business;
(ix) the guarantee of Indebtedness of the Company or a Restricted
Subsidiary that was permitted to be incurred by another provision of this
Section 4.09;
(x) Indebtedness in respect of industrial revenue bonds or other
similar governmental and municipal bonds, mortgage financings or purchase money
obligations in an aggregate amount not to exceed $5.0 million;
12
(xi) Indebtedness in respect of (A) letters of credit (other than
letters of credit issued under the New Bank Credit Facility) incurred in the
ordinary course of business for the purpose of securing foreign trade credit
obligations of the Company or a Restricted Subsidiary of the Company and (B)
Acquired Debt in connection with the acquisition of new assets or a new
Subsidiary; provided that such Indebtedness was incurred by the prior owner of
such assets or such Subsidiary prior to the acquisition by the Company or one of
its Restricted Subsidiaries and was not incurred in connection with, or in
contemplation of, such acquisition by the Company or such Restricted Subsidiary;
and provided further that the aggregate principal amount (or accreted value, as
applicable) of all Indebtedness incurred pursuant to this clause (xi) shall not
exceed $5.0 million at any one time outstanding;
(xii) additional Indebtedness in an aggregate principal amount (or
accreted value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (xii), not to exceed $10.0
million; and
(xiii) Non-Recourse Debt of an Unrestricted Subsidiary, provided,
however, that if any such Indebtedness ceases to be Non-Recourse Debt of an
Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence
of Indebtedness that is not permitted by this clause (xiii).
For purposes of determining compliance with this Section 4.09, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (i) through (xiii) above or is
entitled to be incurred pursuant to the first paragraph of this Section 4.09,
the Company shall, in its sole discretion, classify such item of Indebtedness in
any manner that complies with this Section 4.09 and such item of Indebtedness
shall be treated as having been incurred pursuant to only one of such clauses or
pursuant to the first paragraph of this Section 4.09. Accrual of interest, the
accretion of accreted value and the payment of interest in the form of
additional Indebtedness shall not be deemed to be an incurrence of Indebtedness
for purposes of this Section 4.09.
Section 1.05. Amendment of Section 4.10. Pursuant to Section 9.02 of the
------------ -------------------------
Existing Indenture, Section 4.10 of the Existing Indenture is hereby amended and
restated in its entirety to read as follows:
Section 4.10. Asset Sales and Sales of Subsidiary Stock.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to: (i) sell, lease, convey or otherwise dispose of any assets or
rights (including by way of a sale-and-leaseback) other than in the ordinary
course of business consistent with past practices (provided that the sale,
lease, conveyance or other distribution of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole, or the merger of
the Company
13
with or into a Wholly Owned Restricted Subsidiary of the Company, or the merger
of a Wholly Owned Restricted Subsidiary of the Company with or into another
Wholly Owned Restricted Subsidiary of the Company, shall be governed by the
provisions of Sections 4.14 and 5.01 hereof), or (ii) issue or sell equity
securities of any of the Company's Subsidiaries, in the case of either clause
(i) or (ii) above, whether in a single transaction or a series of related
transactions, (a) that have a fair market value (as determined in good faith by
the Board of Directors of the Company) in excess of $1.0 million or (b) for net
proceeds in excess of $1.0 million (each of the foregoing, an "Asset Sale"),
unless (x) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Trustee) of the assets or Equity
Interests issued or sold or otherwise disposed of and (y) at least 75% of the
consideration received therefor by the Company or such Restricted Subsidiary is
in the form of cash; provided, however, that the amount of (A) any liabilities
(as shown on the Company's or such Restricted Subsidiary's most recent balance
sheet or in the notes thereto) of the Company or any Restricted Subsidiary
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Notes or any guarantee thereof) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability and
(B) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash within 90 days of receipt
thereof by the Company or such Restricted Subsidiary (to the extent of the cash
received), shall be deemed to be cash for purposes of this provision.
Notwithstanding the foregoing: (i) a transfer of assets, including the sale,
lease, conveyance or other disposition of any assets, by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to another
Restricted Subsidiary, (ii) an issuance of Equity Interests by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary, (iii) the
incurrence of Permitted Liens, (iv) any Restricted Payment that is permitted by
Section 4.07 hereof, and (v) a disposition of goods held for sale or obsolete
equipment in the ordinary course of business of the Company or a Restricted
Subsidiary, shall not be deemed to be Asset Sales.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company may apply such Net Proceeds, at its option, (a) to repay Senior
Debt, or (b) to the acquisition of a controlling interest in another business,
the making of a capital expenditure or the acquisition of other long-term assets
(i.e., assets that would not be considered short-term assets under GAAP) or (c)
to an investment in properties or assets that replace the properties or assets
that are the subject of such Asset Sale. Pending the final application of any
such Net Proceeds, the Company may temporarily reduce Senior Debt or otherwise
invest such Net Proceeds in any manner that is not prohibited by the provisions
of this Indenture. Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the first sentence of this paragraph shall be deemed to
constitute "Excess Proceeds." When the aggregate amount of Excess Proceeds
exceeds $5.0 million, the Company shall be required to make an offer to all
Holders of Notes (an "Asset Sale Offer") to purchase the maximum principal
amount of
14
Notes that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest, and Liquidated Damages, if any, thereon to the date of
purchase, in accordance with the procedures set forth in Section 3.09 hereof. To
the extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the aggregate principal amount of
Notes surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Notes to be purchased on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
Section 1.06. Amendment of Section 4.17. Pursuant to Section 9.02 of the
------------ -------------------------
Existing Indenture, Section 4.17 of the Existing Indenture is hereby amended and
restated in its entirety to read as follows:
Section 4.17. Additional Guarantees.
In the event that the Company or any of its Subsidiaries shall acquire or
create another Subsidiary after the date hereof, then such newly acquired or
created Subsidiary shall execute a supplemental indenture, the form of which is
attached as Exhibit C hereto, and deliver to the Trustee an Opinion of Counsel,
in accordance with Section 13.05 hereof, except (i) if the issuance of a
Guarantee by a Kitchen Craft Subsidiary is not permitted under applicable law or
would have a material adverse tax or accounting effect on the Company or its
Subsidiaries, as determined in good faith by the Board of Directors and
evidenced by a copy of applicable board resolutions or an Officers' Certificate
delivered to the Trustee, then such Kitchen Craft Subsidiary shall not be
subject to the provisions of this Section 4.17, and (ii) for all Subsidiaries
that have properly been designated as Unrestricted Subsidiaries in accordance
with the provisions hereof for so long as they continue to constitute
Unrestricted Subsidiaries.
Section 1.07. Amendment of Section 10.01. Pursuant to Section 9.02 of the
------------ --------------------------
Existing Indenture, Section 10.01 of the Existing Indenture is hereby amended
and restated in its entirety to read as follows:
Section 10.01. Agreement to Subordinate.
(a) The Company and its Restricted Subsidiaries agree, and each Holder by
accepting a Note agrees, that the Indebtedness evidenced by the Notes (including
the payment of principal of, interest on and premium and Liquidated Damages, if
any, with respect to, the Notes, and the exercise of rights of rescission or
other claims, if any, in respect of the issuance of the Notes) is subordinated
in right of payment, to the extent and in the manner provided in this Article
10, to the prior payment in full of all Senior Debt of the Company and its
Restricted Subsidiaries (whether outstanding on the date hereof or hereafter
created, incurred, assumed or
15
guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt of the Company and its Restricted Subsidiaries.
(b) The Guarantors agree, and each Holder by accepting a Note agrees, that
the Indebtedness evidenced by the Subsidiary Guarantees (including the payment
of principal of, interest on and premium and Liquidated Damages, if any, with
respect to, the Notes, and the exercise of rights of rescission or other claims,
if any, in respect of the issuance of the Notes) is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full in cash or cash equivalents of all Senior Debt of the
Guarantors (whether outstanding on the date hereof or thereafter incurred), and
that the subordination is for the benefit of holders of Senior Debt of the
Guarantors.
Section 1.08. Amendment of Section 10.02. Pursuant to Section 9.02 of the
------------ --------------------------
Existing Indenture, Section 10.02 of the Existing Indenture is hereby amended
and restated in its entirety to read as follows:
Section 10.02. Liquidation; Dissolution; Bankruptcy.
(a) Upon any distribution to creditors of the Company in a
liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its
property, in an assignment for the benefit of creditors or any marshalling of
the Company's assets and liabilities:
(1) holders of Senior Debt of the Company shall be entitled to
receive payment in full in cash of all Obligations (including, without
limitation, Post-Petition Interest) due or to become due in respect of such
Senior Debt before Holders of the Notes shall be entitled to receive any
payment with respect to the Notes, and until all Obligations with respect
to Senior Debt are paid in full in cash, any distribution to which the
Holders of Notes would be entitled shall be made to holders of Senior Debt
(except that Holders may receive (i) Permitted Junior Securities and (ii)
payments and other distributions made from any defeasance trust created
pursuant to Section 8.01 hereof); and
(2) until all Senior Debt of the Company (as provided in subsection
(a)(1) above) is paid in full in cash, any distribution to which Holders
would be entitled but for this Article 10 shall be made to holders of
Senior Debt of the Company as provided above in (1) as their interests may
appear (except that Holders of Notes may receive (i) Permitted Junior
Securities and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof).
(b) Upon any distribution to creditors of any Guarantor in a
liquidation or dissolution of such Guarantor or in a bankruptcy, reorganization,
insolvency, receivership or
16
similar proceeding relating to such Guarantor or its property, in an assignment
for the benefit of creditors or any marshalling of such Guarantor's assets and
liabilities:
(1) holders of Senior Debt of such Guarantor shall be entitled to
receive payment in full in cash of all Obligations (including, without
limitation, Post-Petition Interest) due or to become due in respect of such
Senior Debt before Holders of the Notes shall be entitled to receive any
payment with respect to the Notes, and until all Obligations with respect
to Senior Debt are paid in full in cash, any distribution to which the
Holders of Notes would be entitled shall be made to holders of Senior Debt
(except that Holders may receive (i) Permitted Junior Securities and (ii)
payments and other distributions made from any defeasance trust created
pursuant to Section 8.01 hereof); and
(2) until all Senior Debt of the Guarantors (as provided in
subsection (b)(1) above) is paid in full in cash, any distribution to which
Holders would be entitled but for this Article 10 shall be made to holders
of Senior Debt of such Guarantor as provided above in (1) as their
interests may appear (except that Holders of Notes may receive (i)
Permitted Junior Securities and (ii) payments and other distributions made
from any defeasance trust created pursuant to Section 8.01 hereof).
(c) Upon any distribution to creditors of any Restricted Subsidiary
of the Company in a liquidation or dissolution of such Restricted Subsidiary or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to such Restricted Subsidiary or its property, in an assignment for the
benefit of creditors or any marshalling of such Restricted Subsidiary's assets
and liabilities:
(1) holders of Senior Debt of such Restricted Subsidiary shall be
entitled to receive payment in full in cash of all Obligations (including,
without limitation, Post-Petition Interest) due or to become due in respect
of such Senior Debt before Holders of the Notes shall be entitled to
receive any payment with respect to the Notes, and until all Obligations
with respect to Senior Debt are paid in full in cash, any distribution to
which the Holders of Notes would be entitled shall be made to holders of
Senior Debt (except that Holders may receive (i) Permitted Junior
Securities and (ii) payments and other distributions made from any
defeasance trust created pursuant to Section 8.01 hereof); and
(2) until all Senior Debt of such Restricted Subsidiary (as provided
in subsection (c)(1) above) is paid in full in cash, any distribution to
which Holders would be entitled but for this Article 10 shall be made to
holders of Senior Debt of such Restricted Subsidiary as provided above in
(1) as their interests may appear (except that Holders of Notes may receive
(i) Permitted Junior Securities and (ii) payments and other distributions
made from any defeasance trust created pursuant to Section 8.01 hereof).
17
Section 1.09. Amendment of Section 10.10. Pursuant to Section 9.02 of the
------------ --------------------------
Existing Indenture, Section 10.10 of the Existing Indenture is hereby amended
and restated in its entirety to read as follows:
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given hereunder to
holders of Senior Debt, the distribution may be made and the notice given, (a)
with respect to Senior Debt under the New Bank Credit Facility, to the Bank
Agent, or (b) with respect to any other Senior Debt, to the Representative of
the holders of such Senior Debt.
Upon any payment or distribution of assets of the Company, any of its
Restricted Subsidiaries, or any Guarantor referred to in this Article 10, the
Trustee and the Holders of Notes shall be entitled to rely upon (i) any order or
decree made by any court of competent jurisdiction or (ii) any certificate of
the liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of the Senior Debt and
other Indebtedness of the Company, any of its Restricted Subsidiaries, or such
Guarantor, as applicable, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article 10.
ARTICLE 2
The Trustee
-----------
Section 2.01. Privileges and Immunities of Trustee. The Trustee accepts
------------ ------------------------------------
the amendment of the Indenture effected by this First Supplemental Indenture but
only upon the terms and conditions set forth in the Indenture, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created by
the Indenture as hereby amended. The Trustee shall not be responsible for the
adequacy or sufficiency of the First Supplemental Indenture, for the due
execution thereof by the Company and the Guarantor or for the recitals contained
herein, which are the Company's and the Guarantor's responsibilities.
ARTICLE 3
Miscellaneous Provisions
------------------------
18
Section 3.01. Instruments to be Read Together. This First Supplemental
------------ -------------------------------
Indenture is an indenture supplemental to and in implementation of the Existing
Indenture, and said Existing Indenture and this First Supplemental Indenture
shall henceforth be read together.
Section 3.02. Confirmation. The Existing Indenture as amended and
------------ ------------
supplemented by this First Supplemental Indenture is in all respects confirmed
and preserved.
Section 3.03. Terms Defined. Capitalized terms used herein without
------------ -------------
definition shall have the meanings assigned to them in the Existing Indenture.
Section 3.04. Counterparts. This First Supplemental Indenture may be
------------ ------------
signed 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 3.05. Effectiveness. The provisions of this First Supplemental
------------ -------------
Indenture will take effect immediately upon execution thereof by the parties
hereto and will become operative on the Operative Date of this First
Supplemental Indenture. If the Acquisition Condition does not occur, the terms
of this First Supplemental Indenture shall be null and void.
Section 3.06. Governing Law. The internal law of the State of New York
------------ -------------
shall govern and be used to construe this First Supplemental Indenture. This
First Supplemental Indenture is subject to the provisions of the Trust Indenture
Act that are required to be part of the Indenture and shall, to the extent
applicable, be governed by such provisions.
19
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first above written.
OMEGA CABINETS, LTD.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
PANTHER TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
THE CHASE MANHATTAN BANK,
AS TRUSTEE
By: /s/ Xxxxx X. XxXxxxxx
-----------------------------
Name: Xxxxx X. XxXxxxxx
Title: Vice President
20
