Exhibit 4.1
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE (this "Fifth Supplemental Indenture"), dated
as of July 7, 2006, among Allied Security Holdings LLC and Allied Security
Finance Corp. (the "Issuers"), SpectaGuard Acquisition, LLC, Professional
Security Bureau LLC, Effective Management Services LLC, Allied Security LLC,
Allied Security LP, Xxxxxx Protective Services LLC, AlliedBarton Security
Services LP and AlliedBarton Security Services LLC (each, a "Guaranteeing
Subsidiary" and, collectively, the "Guaranteeing Subsidiaries") and The Bank of
New York, a New York banking corporation, as trustee under the Indenture
referred to below (the "Trustee").
WITNESSETH
WHEREAS, Allied Security Escrow Corp. ("Escrow Corp.") has heretofore
executed and delivered to the Trustee an indenture (the "Original Indenture"),
dated as of July 14, 2004, providing for the issuance of 11.375% Senior
Subordinated Notes due 2011 (the "Notes");
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee
a supplemental indenture, dated August 2, 2004, to the Original Indenture
assuming all of the obligations of Escrow Corp. under the Original Indenture and
the Notes (the "First Supplemental Indenture");
WHEREAS, the Issuers and the Guaranteeing Subsidiaries, excluding
AlliedBarton Security Services LLC and AlliedBarton Security Services LP, have
heretofore executed and delivered to the Trustee a supplemental indenture, dated
August 2, 2004, to the Original Indenture (as supplemented by the First
Supplemental Indenture) pursuant to which each Guaranteeing Subsidiary has
unconditionally guaranteed all of the Issuers' Obligations under the Notes and
the Original Indenture (as supplemented by the First Supplemental Indenture) on
the terms and conditions set forth therein (the "Second Supplemental
Indenture");
WHEREAS, the Issuers and the Guaranteeing Subsidiaries, excluding
AlliedBarton Security Services LP, have heretofore executed and delivered to the
Trustee a supplemental indenture, dated February 3, 2005, to the Original
Indenture (as supplemented by the First and Second Supplemental Indentures)
pursuant to which AlliedBarton Security Services LLC unconditionally guaranteed
all of the Issuers' Obligations under the Notes and the Original Indenture (as
supplemented by the First and Second Supplemental Indentures) on the terms and
conditions set forth therein (the "Third Supplemental Indenture");
WHEREAS, the Issuers and the Guaranteeing Subsidiaries have heretofore
executed and delivered to the Trustee a supplemental indenture, dated April 1,
2005, to the Original Indenture (as supplemented by the First, Second and Third
Supplemental Indentures) pursuant to which AlliedBarton Security Services LP
unconditionally guaranteed all of the Issuers' Obligations under the Notes and
the Original Indenture (as
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supplemented by the First, Second and Third Supplemental Indentures) on the
terms and conditions set forth therein (the "Fourth Supplemental Indenture");
WHEREAS, the Issuers have requested, and the Guaranteeing Subsidiaries and
the Trustee have agreed, that certain provisions of the Original Indenture, as
supplemented by the First, Second, Third and Fourth Supplemental Indentures (as
so supplemented, the "Indenture") be amended in the manner provided herein
(capitalized terms used but not otherwise defined in this Fifth Supplemental
Indenture having the meanings ascribed to them in the Indenture);
WHEREAS, Section 9.02 of the Indenture permits the Indenture and the Notes
and the Note Guarantees to be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes voting as a single class (the "Majority Holders");
WHEREAS, the Issuers have received the consent of the Majority Holders as
of July 7, 2006 to the amendments to the Indenture contemplated by this Fifth
Supplemental Indenture; and
WHEREAS, the Issuers, the Guaranteeing Subsidiaries and the Trustee have
been authorized by all necessary corporate, partnership or limited liability
company actions (as the case may be) to enter into this Fifth Supplemental
Indenture;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained in this Fifth Supplemental Indenture and for other good and
valuable consideration, the receipt and sufficiency of which are herein
acknowledged, the Issuers, the Guaranteeing Subsidiaries and the Trustee hereby
agree for the equal and the ratable benefit of all Holders of the Notes as
follows:
ARTICLE ONE
1.1 Amendments.
(a) Section 1.01 of the Indenture is hereby amended by inserting the
following new definitions in the appropriate alphabetic order:
"Initial Acquisition" means the acquisition of Initial Security LLC
and Rentokil Inc. - Security Services, pursuant to the Purchase
Agreement, dated as of June 9, 2006, by and among the Company,
Rentokil Initial plc and Initial Tropical Plants, Inc., as such
agreement may be amended from time to time.
"Initial Consent Solicitation" means the solicitation of consents from
the Holders for the amendment of the Indenture pursuant to the Consent
Solicitation Statement
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dated June 16, 2006 (as amended or supplemented from time to time).
(b) The definition of "Consolidated Cash Flow" is hereby amended by
(i) deleting the word "minus" at the end of clause (4) and replacing it
with the word "plus," (ii) deleting in its entirety clause (5) thereof and
replacing it with the following:
"(5) fees and expenses, including without limitation fees and expenses
of counsel, relating to the Initial Acquisition and the financing
thereof, including the Initial Consent Solicitation, to the extent
such fees and expenses were deducted in computing such Consolidated
Net Income; minus"
and (iii) inserting the following immediately after clause (5) thereof:
"(6) non-cash items increasing such Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course of
business, in each case, on a consolidated basis and determined in
accordance with GAAP."
(c) Section 4.09(b) is hereby amended by (i) deleting in its entirety
the language in clause (5) thereof and replacing it in its entirety with
the following:
"(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or
the net proceeds of which are used to renew, refund, refinance,
replace, defease or discharge any Indebtedness (other than
intercompany Indebtedness) that was permitted to be incurred under
Section 4.09(a) hereof or clauses (2), (3), (4), (5), (11), (13) and
(14) of this Section 4.09(b);",
(ii) (A) deleting the word "and" at the end of clause (12) thereof, (B)
deleting the period at the end of clause (13) thereof and replacing it with
a semicolon followed by the word "and" and (C) by inserting the following
immediately after clause (13) thereof:
"(14) the incurrence by the Company or any of its Restricted
Subsidiaries of up to $85.0 million of Indebtedness relating to or in
connection with the Initial Acquisition (which may be incurred under
the Credit Agreement or one or more Credit Facilities).
and (iii) by deleting in its entirety the first sentence of the final
paragraph thereof and replacing it with the following:
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"For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (1)
through (14) above, or is entitled to be incurred pursuant to Section
4.09(a) hereof, the Company will be permitted to classify such item of
Indebtedness on the date of its incurrence, or later reclassify all or
a portion of such item of Indebtedness, in any manner that complies
with this Section 4.09."
ARTICLE TWO
Miscellaneous
2.1 Effect of the Fifth Supplemental Indenture. This Fifth Supplemental
Indenture supplements the Indenture and shall be a part and subject to all the
terms thereof. As supplemented hereby, the Indenture and the Notes and the Note
Guarantees issued thereunder shall continue in full force and effect.
2.2 Effectiveness. This Fifth Supplemental Indenture shall become effective
as of the date hereof, and the provisions hereof shall become operative upon the
consummation of the acquisition by Allied Holdings of Initial Security, LLC and
Rentokil Inc. - Security Services as contemplated by the Purchase Agreement (the
"Purchase Agreement"), dated as of June 9, 2006, by and among Allied Security
Holdings LLC, Rentokil Initial plc and Initial Tropical Plants, Inc., as such
agreement may be amended from time to time. This Fifth Supplemental Indenture
shall terminate and be of no further force or effect if the Purchase Agreement
is terminated prior to the provisions hereof becoming operative.
2.3 Conflict with the TIA. If any provision of this Fifth Supplemental
Indenture limits, qualifies or conflicts with any provision of the TIA that may
not be so limited, qualified or conflicted with, such provision of the TIA shall
control. If any provision of this Fifth Supplemental Indenture modifies or
excludes any provision of the TIA that may be so modified or excluded, the
provision of such Act shall be deemed to apply to the Indenture as so modified
or to be excluded by this Fifth Supplemental Indenture, as the case may be.
2.4 Counterparts. The parties may sign any number of counterparts of this
Fifth Supplemental Indenture. Each signed counterpart shall be an original, but
all of the counterparts together shall represent the same agreement.
2.5 GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS FIFTH SUPPLEMENTAL INDENTURE 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.
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2.6 Recitals. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Fifth Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Issuers.
2.7 Severability. In case any provision in this Fifth Supplemental
Indenture is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
2.8 Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, all as of the date first above written.
ALLIED SECURITY HOLDINGS LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
ALLIED SECURITY FINANCE CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
SPECTAGUARD ACQUISITION LLC
ALLIEDBARTON SECURITY SERVICES LLC
By: ALLIED SECURITY HOLDINGS LLC,
as sole member
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
ALLIEDBARTON SECURITY SERVICES LP
By: ALLIED SECURITY HOLDINGS LLC,
as general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
PROFESSIONAL SECURITY BUREAU LLC
EFFECTIVE MANAGEMENT SERVICES LLC
ALLIED SECURITY LLC
XXXXXX PROTECTIVE SERVICES LLC
By: SPECTAGUARD ACQUISITION LLC,
as sole member
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and
Treasurer
ALLIED SECURITY LP
By: SPECTAGUARD ACQUISITION LLC,
as general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer and
Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx X. Xxxxxxxxx-Xxxxxx
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Name: Xxxxx X. Xxxxxxxxx-Xxxxxx
Title: Vice President