EXHIBIT 4.3
THIS SUPPLEMENTAL INDENTURE No. 2 (the "Supplemental Indenture") dated
as of March 14, 1997 among Xxxxx, Inc. (formerly T.K.G. Acquisition Corp.), a
Delaware corporation, as successor (the "Successor") to Xxxxx, Inc., a Delaware
corporation ("Old Knoll"), as the Company, Xxxxx Overseas, Inc., a Delaware
corporation and Spinneybeck Enterprises, Inc., a New York corporation, (the
"Guarantors"), and IBJ Xxxxxxxx Bank & Trust Company, as Trustee.
W I T N E S S E T H:
WHEREAS, there has previously been executed and delivered to the
Trustee an Indenture (the "Indenture") dated as of February 29, 1996 among
T.K.G. Acquisition Sub, Inc., a Delaware corporation ("Sub"), as the Company,
the Successor, the Guarantors, The Knoll Group, Inc., a Delaware corporation,
and Knoll North America, Inc., a Delaware corporation, as guarantors and the
Trustee, providing for the issuance of 10 7/8% Senior Subordinated Notes due
2006 (the "Notes");
WHEREAS, there has previously been executed and delivered to the
Trustee Supplemental Indenture No. 1 dated as of February 29, 1996 among the
Successor, Sub, Old Knoll, the Guarantors and the Trustee pursuant to which Old
Knoll succeeded Sub as the Company;
WHEREAS, pursuant to the terms of the Certificate of Ownership and
Merger, dated as of March 14, 1997, by and between the Successor and Old Knoll,
Old Knoll merged with and into the Successor with the Successor being the
surviving entity and being renamed "Xxxxx, Inc." (the "Merger");
WHEREAS, the provision of clause (i)(a) of the definition of Change of
Control in the Indenture expressly contemplates that the Successor and Old Knoll
could merge pursuant to Section 5.01 of the Indenture;
WHEREAS, the Successor is planning to effectuate an initial public
offering of the shares of capital stock of the Successor following the Merger;
WHEREAS, under the Indenture, the Successor, the Guarantors and the
Trustee may enter into a supplemental indenture (i) to evidence the succession
of another person to the Company and the assumption by such successor of the
covenants of the Company contained in the Indenture and in the Notes and (ii) to
cure any ambiguity therein, or to correct or supplement any provision thereof
which may be inconsistent with any other provision thereof, provided that such
actions do not adversely affect the legal rights of the Holder of Notes, which
supplement, pursuant to Section 9.01 of the Indenture, does not require the
consent of the Holders of Notes;
WHEREAS, the Successor wishes by this Supplemental Indenture to
evidence its succession to the Company and its assumption of the covenants of
the Company contained in the Indenture and the Notes; and
WHEREAS, all acts and proceedings required by law and by the Indenture
to constitute this Supplemental Indenture a valid and binding agreement for the
uses and purposes set forth herein, in accordance with its terms, have been done
and taken, and the execution of this Supplemental Indenture have been in all
respects duly authorized by the Successor and the Guarantors;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Successor, the Guarantors and the Trustee hereby agree as follows:
1. The Successor hereby acknowledges and agrees that it has
succeeded Old Knoll as the Company under the Indenture and the Notes, and does
hereby assume and agree to perform each and every covenant of the Company
contained in the Indenture and the Notes and does otherwise agree to be bound by
and subject to the terms and provisions of the Indenture and the Notes in each
and every respect as if it had been initially named as the Company therein.
Without in any way limiting the generality of the foregoing, the Successor
hereby agrees to be liable for the due and punctual payment of principal (and
premium, if any) and interest (and Special Interest) on all the Notes.
2. The Guarantors hereby agree, jointly and severally, that their
respective Note Guarantees, including, without limitation, their Guarantees
under Article XI of the Indenture of (i) the due and punctual payment of
principal of, premium, if any, and interest (including Special Interest) in full
on each Note when and as the same shall become due and payable whether at Stated
Maturity, by declaration of acceleration, in connection with a Change of Control
Offer, Asset Sale Offer or redemption, or otherwise, (ii) the due and punctual
payment of interest on the overdue principal of, premium, if any, and interest,
including Special Interest, if any, in full of each Note, to the extent
permitted by law, and (iii) the due and punctual performance of all other
Obligations of the Company and the other Guarantor to the Holders or the
Trustee, including without limitation the payment of fees, expenses,
indemnification or other amounts, all in accordance with the terms of the Notes
and the Indenture, have not been amended, modified, rescinded or revoked in any
respect whatsoever since their undertaking and remain in full force and effect
upon the execution and delivery of this Supplemental Indenture.
3. The Notes issued on or after the effective date of the Merger
shall bear a legend to the effect that: "On March 14, 1997, Xxxxx, Inc., a
Delaware corporation (the "Predecessor"), merged with and into T.K.G.
Acquisition Corp., a Delaware
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corporation (the "Successor"), which changed its name to Xxxxx, Inc. (the
"Merger"). Immediately following the Merger, the Successor executed a
supplemental indenture no. 2, dated as of March 14, 1997, among the Successor,
the Guarantors (as defined therein) and the Trustee, under which the Successor
acknowledged and agreed that it had succeeded the Predecessor as the Company
under the Indenture and the Notes, agreed to perform each and every covenant of
the Company contained in the Indenture and the Notes and agreed to be bound by
and subject to the terms and provision of the Indenture and the Notes in each
and every respect as if it had been initially named as the Company in the
Indenture and the Notes."
4. Section 4.17 of the Indenture is amended by inserting the
following sentence as a new last sentence thereof: "The provisions of this
Section 4.17 shall not prevent, and shall terminate upon a merger of Xxxxx, Inc.
into TKG so long as such merger otherwise complies with the provisions of
Section 5.01."
5. The Successor hereby represents and warrants to the Trustee that
as of the date hereof:
a. the Successor is a corporation validly existing and in good
standing under the laws of the State of Delaware; and
b. no Default or Event of Default will result from the Merger or the
execution and delivery of this Supplemental Indenture.
6. 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
any particular Section of this Supplemental Indenture.
7. The Trustee accepts the amendment to the Indenture effected by this
Supplemental Indenture and agrees to execute the trust created by the Indenture,
as hereby amended, but only upon the terms and conditions set forth in the
Indenture, as hereby amended, 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 the Trustee's liabilities in
the performance of the trust created by the Indenture, as hereby amended, and,
without limiting the generality of the foregoing, the Trustee has no
responsibility for the correctness of recitals of fact herein contained which
shall be taken as the statements of the Successor and each Guarantor and makes
no representations as to the validity or sufficiency of this Supplemental
Indenture and shall incur no
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liability or responsibility in respect of the validity thereof. In furtherance
thereof, the Successor shall indemnify the Trustee and hold it harmless against
any and all loss, damage, claim, liability or expense (including reasonable
attorneys' fees and expenses) arising out of or incurred by it in connection
with its acceptance and execution of this Supplemental Indenture.
Notwithstanding the foregoing, the Successor need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct, negligence or bad faith.
8. 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.
9. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder of Notes heretofore and hereafter authenticated and
delivered shall be bound hereby.
10. This Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
and all of such counterparts shall together constitute one and the same
instrument.
11. This Supplemental Indenture shall be deemed to be a contract made
under the laws of the State of New York and for all purposes shall be governed
by and construed in accordance with such laws.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the day and year first above written.
XXXXX, INC. (formerly T.K.G.
ACQUISITION CORP.)
By /s/ Xxxxxxx X. Xxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXX, INC.
By /s/ Xxxxxxx X. Xxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
XXXXX OVERSEAS, INC.
By /s/ Xxxxxxx X. Xxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
SPINNEYBECK ENTERPRISES, INC.
By /s/ Xxxxxxx X. Xxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
IBJ XXXXXXXX BANK & TRUST COMPANY,
as Trustee
By /s/ Xxxxxxx XxXxxxxxx
____________________________
Name: Xxxxxxx XxXxxxxxx
Title: Vice President
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