EXHIBIT 4.1
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SECOND GUARANTOR SUPPLEMENTAL INDENTURE
SECOND GUARANTOR SUPPLEMENTAL INDENTURE (this "SECOND GUARANTOR
SUPPLEMENTAL INDENTURE"), dated as of March 25, 2005, among Xxxxx Xxxxx Inc., a
Delaware corporation (as successor by merger to Xxxxx Xxxxx Acquisition Corp.,
the "COMPANY"), Xxxxx Xxxxx, a New York general partnership ("XXXXX XXXXX GP",
and, together with the Company, the "CO-OBLIGORS"), DRI I Inc., a Delaware
corporation, Xxxxx Xxxxx International, Inc., a Delaware corporation, and Xxxxx
Xxxxx Realty, Inc., a Delaware corporation (each, an "INITIAL GUARANTOR"), Xxxxx
Xxxxx Holdings, Inc., a Delaware corporation and direct parent of the Company
(the "NEW GUARANTOR") and U.S. Bank National Association, as trustee under the
Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Co-Obligors, the Initial Guarantors and the Trustee are
parties to an Indenture dated as of July 30, 2004 (as supplemented through such
date, the "ORIGINAL INDENTURE") providing for the issuance of 9.75% Senior
Subordinated Notes due 2011 (the "NOTES");
WHEREAS, Section 9.01 of the Original Indenture provides that, without
the consent of any Holders, the Co-Obligors and the Guarantors, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
modify, supplement or amend the Original Indenture (i) to add a Guarantor or
additional obligor under the Original Indenture or permit any Person to
guarantee the Notes and/or obligations under the Original Indenture; and (ii) to
make any other provisions with respect to matters or questions arising under the
Original Indenture, the Notes or any Guarantee, provided that such provisions
shall not adversely affect in any material respect the interest of the Holders
of the Notes;
WHEREAS, Section 4.03(b) of the Original Indenture provides that if at
any time the Notes are guaranteed by a direct or indirect parent of the Company
and such company has complied with the reporting requirements of Section 13 or
15(d) of the Securities and Exchange Act of 1934, if applicable, and has
furnished the Holders of Notes, or filed electronically with the Securities and
Exchange Commission's Electronic Data Gathering, Analysis and Retrieval System,
the reports otherwise required to be filed pursuant to the Indenture with
respect to such entity, the Company, Xxxxx Xxxxx GP and the Guarantors shall be
deemed to be in compliance with the provisions of this Section 4.03;
WHEREAS, the New Guarantor wishes to guarantee the Notes pursuant to
the Original Indenture;
WHEREAS, the Co-Obligors, the Initial Guarantors, the New Guarantor and
the Trustee wish to amend certain provisions of the Original Indenture in order
to effect the foregoing; and
WHEREAS, all things necessary have been done to make this Second
Guarantor Supplemental Indenture, when executed and delivered by each of the
Co-Obligors, each of the Initial Guarantors, the New Guarantor and the Trustee,
the legal, valid and binding agreement of
each of the Co-Obligors, each of the Initial Guarantors, the New Guarantor and
the Trustee, in accordance with its terms.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each of the
Co-Obligors, each of the Initial Guarantors, the New Guarantor and the Trustee
mutually covenant and agree for the benefit of the Holders of the Notes as
follows:
(1) CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Original Indenture.
(2) GUARANTEE. The New Guarantor hereby agrees to guarantee the
Original Indenture and the Notes related thereto pursuant to the terms and
conditions of Article Eleven of the Indenture, such Article Eleven being
incorporated by reference herein as if set forth at length herein and such New
Guarantor agrees to be bound as a Guarantor under the Original Indenture, as
supplemented by this Second Guarantor Supplemental Indenture (as so
supplemented, the "INDENTURE") as if it had been an initial signatory thereto,
subject to the amendments below.
(3) AMENDMENTS. The Original Indenture is hereby amended as
follows:
(a) Section 1.01 of the Original Indenture is hereby amended by
amending and restating the following definition in its entirety:
"GUARANTOR" means Holdings, the Initial Guarantors
and any other Subsidiary which is a guarantor of the Notes, including
any Person that is required after the date of this Indenture to execute
a guarantee of the Notes pursuant to Section 4.12 hereof until a
successor replaces such party pursuant to the applicable provisions of
this Indenture and, thereafter, shall mean such successor.
(b) Paragraph (3) of the definition of "PERMITTED LIENS" in
Section 1.01 of the Original Indenture is hereby amended by adding the words
"(other than Holdings)" after the word "Guarantor".
(c) Section 4.03(b) of the Original Indenture is hereby amended
and restated to read as follows:
(b) If at any time the Notes are Guaranteed by a
direct or indirect parent of the Company and such company has complied
with the reporting requirements of Section 13 or 15(d) of the Exchange
Act, if applicable, and has furnished the Holders of Notes, or filed
electronically with the Commission's Electronic Data Gathering,
Analysis and Retrieval System (or any successor system), the reports
described herein with respect to such company, as applicable (including
any financial information required by Regulation S-X under the
Securities Act relating to the Company, Xxxxx Xxxxx GP and the
Guarantors), the Company, Xxxxx Xxxxx GP and the Guarantors (other than
Holdings) shall be deemed to be in compliance with the provisions of
this Section 4.03.
(d) Section 4.07(b)(6)(b) of the Original Indenture is hereby
amended and restated to read as follows:
(b) under any Currency Hedging Agreements, relating
to (1) Indebtedness of the Company, Xxxxx Xxxxx GP or any Guarantor
and/or (2) obligations to purchase or sell assets or properties, in
each case, incurred in the ordinary course of business of the Company,
Xxxxx Xxxxx GP or any Guarantor (other than Holdings); PROVIDED,
HOWEVER, that such Currency Hedging Agreements do not increase the
Indebtedness or other obligations of the Company, Xxxxx Xxxxx GP or any
Guarantor outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder or
(e) Section 4.07(b)(11) of the Original Indenture is hereby
amended and restated to read as follows:
(11) any renewals, extensions, substitutions,
refundings, refinancings or replacements (collectively, "Refinancing
Indebtedness") of any Indebtedness, including any Disqualified Stock,
incurred pursuant to paragraph (a) of this Section 4.07 and clauses (2)
and (3) of this paragraph (b) of this definition of "Permitted
Indebtedness," including any successive refinancings so long as the
borrower under such refinancing is the Company (which may be a borrower
together with Xxxxx Xxxxx GP or one or more co-obligors which are also
Guarantors) or, if not the Company, one or more Guarantors (other than
Holdings) or Xxxxx Xxxxx GP if the Indebtedness being refinanced is of
a Guarantor (other than Holdings) or Xxxxx Xxxxx GP, and the aggregate
principal amount of Indebtedness represented thereby (or if such
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the
maturity thereof, the original issue price of such Indebtedness plus
any accreted value attributable thereto since the original issuance of
such Indebtedness) is not increased by such refinancing plus the amount
of premium or other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of expenses of the
Company incurred in connection with such refinancing and (1) in the
case of any refinancing of Indebtedness that is Subordinated
Indebtedness, such new Indebtedness is made subordinated in right of
payment to the Notes or Guarantee, as the case may be, at least to the
same extent as the Indebtedness being refinanced and (2) in the case of
Pari Passu Indebtedness or Subordinated Indebtedness, as the case may
be, such refinancing does not reduce the Average Life to Stated
Maturity or the Stated Maturity of such Indebtedness or has a Stated
Maturity later than that of the Notes;
(f) Section 4.11(d) of the Original Indenture is hereby amended
and restated to read as follows:
(d) Pending application of Net Cash Proceeds pursuant
to this Section 4.11, such Net Cash Proceeds may be invested in Cash
Equivalents or applied to temporarily reduce Senior Indebtedness of the
Company, Xxxxx Xxxxx GP or any Guarantor (other than Holdings) or any
Indebtedness of any Restricted Subsidiary that is not a Guarantor.
(g) The preamble of Section 5.01(a) of the Original Indenture is
hereby amended and restated to read as follows:
(a) Each of the Company and Xxxxx Xxxxx GP will not,
in a single transaction or through a series of related transactions,
consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group
of Persons, or permit any of its Restricted Subsidiaries to enter into
any such transaction or series of transactions, if such transaction or
series of transactions, in the aggregate, would result in a sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company and its
Restricted Subsidiaries on a Consolidated basis to any other Person or
group of Persons (other than the Company, Xxxxx Xxxxx GP or a Guarantor
(other than Holdings)), unless at the time and after giving effect
thereto
(h) Section 6.01(4) of the Original Indenture is hereby amended by
adding the words "(other than Holdings)" after the word "Guarantor".
(i) Section 6.01(6) of the Original Indenture is hereby amended by
adding the words "(other than Holdings)" after the word "Guarantor".
(4) GOVERNING LAW. THIS SECOND GUARANTOR SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF THAT
WOULD INDICATE THE APPLICABILITY OF THE LAWS OF ANY OTHER JURISDICTION.
(5) COUNTERPARTS. The parties may sign any number of copies of
this Second Guarantor Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
(6) EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction hereof.
(7) THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Second Guarantor Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made solely by each of the
Co-Obligors, each of the Initial Guarantors and the New Guarantor.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Guarantor Supplemental Indenture to be duly executed and attested, as of the
date first above written.
Dated: March 25, 2005
XXXXX XXXXX INC. (as successor by merger
to Xxxxx Xxxxx Acquisition Corp.), a
Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXX XXXXX, a New York general
partnership
By: Xxxxx Xxxxx Inc., as General Partner
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
DRI I Inc., a Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
XXXXX XXXXX INTERNATIONAL, INC., a
Delaware corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXX XXXXX REALTY, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
XXXXX XXXXX HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Chief Financial Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx X. Xxxxxx
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Authorized Signatory
