DIAMOND TRIUMPH AUTO GLASS, INC. as Issuer and FIRST SUPPLEMENTAL INDENTURE Dated as of August 16, 2005 to the INDENTURE Dated as of March 31, 1998 91/4% Senior Notes due 2008
Exhibit 4.1
DIAMOND TRIUMPH AUTO GLASS, INC.
as Issuer
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION
(AS SUCCESSOR IN INTEREST TO STATE STREET BANK AND TRUST COMPANY)
as Trustee
(AS SUCCESSOR IN INTEREST TO STATE STREET BANK AND TRUST COMPANY)
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 16, 2005
Dated as of August 16, 2005
to the
INDENTURE
Dated as of March 31, 1998
Dated as of March 31, 1998
91/4% Senior Notes due 2008
This FIRST SUPPLEMENTAL INDENTURE, dated as of August 16, 2005 (this “Supplemental
Indenture”), to the Indenture (as defined below) is entered into by and between DIAMOND TRIUMPH
AUTO GLASS, INC., a Delaware corporation (the “Company”) and U.S. BANK NATIONAL ASSOCIATION
(as successor in interest to State Street Bank and Trust Company), as Trustee (the
“Trustee”). Defined terms used herein and not otherwise defined herein shall have the
meanings given in the Indenture.
RECITALS
WHEREAS, the Company and the Trustee have heretofore executed and delivered that certain
Indenture, dated as of March 31, 1998 (the “Indenture”), pursuant to which the Company’s
9.25% Senior Notes due 2008 (the “Notes”) were originally issued;
WHEREAS, Section 9.01(11) of the Indenture provides that the Company, when authorized by a
resolution of its Board of Directors, and the Trustee, upon the receipt of an Officers’ Certificate
and an Opinion of Counsel, may enter into a supplemental indenture for the purpose of amending or
supplementing the Indenture without the consent of any Noteholder to make any change that would
provide any additional benefit or rights to the Noteholders or that does not adversely affect the
rights of any Noteholder;
WHEREAS, the Company desires to amend Section 4.10(b) of the Indenture to provide that sales
of Capital Stock of the Company for cash to Affiliates of the Company is not subject to the
covenant set forth in Section 4.10(a) of the Indenture;
WHEREAS, the Company has, pursuant to Sections 9.01, 9,06 and 11.04 of the Indenture,
heretofore delivered or is delivering contemporaneously herewith to the Trustee (i) a copy of the
resolutions adopted by the Company’s Board of Directors authorizing the execution and delivery of
this Supplemental Indenture; and (ii) an Opinion of Counsel and an Officers’ Certificate, each
containing the information required by the Indenture, and therefore the Company and the Trustee are
authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Company’s Board of Directors has taken the necessary actions required to
authorize the Company’s execution and delivery of this Supplemental Indenture; and
WHEREAS, all other acts, conditions precedent and proceedings required by law and the
Indenture necessary to authorize the execution and delivery of this Supplemental Indenture and to
make this Supplemental Indenture, when duly executed and delivered, a valid and binding agreement
for the purposes expressed herein, enforceable in accordance with its terms, and all of the
applicable conditions and requirements set forth in the Indenture, have been in all respects duly
authorized, performed and fulfilled.
NOW, THEREFORE, in consideration of the foregoing and notwithstanding any provision of the
Indenture which, absent this Supplemental Indenture, might operate to limit such action, the
parties hereto have executed and delivered this Supplemental Indenture, and each of the Company
does hereby covenant and agree with the Trustee for the benefit of the Holders as follows:
ARTICLE ONE
AMENDMENTS
Section 1.01. Amendment to the Indenture. Paragraph (b) of Section 4.10 of the
Indenture entitled “Limitation on Transactions with Affiliates” is hereby amended to read in its
entirety as follows (the “Amendment”):
(b) The restrictions set forth in paragraph (a) shall not apply to (i)
compensation, indemnification and other benefits paid or made available (x) pursuant
to the Employment Agreements, or (y) for or in connection with services actually
rendered and comparable to those generally paid or made available by entities
engaged in the same or similar businesses (including reimbursement or advancement of
reasonable out-of-pocket expenses, loans to officers, directors and employees in the
ordinary course of business consistent with past practice and directors’ and
officers’ liability insurance) as determined in good faith by the Company’s Board of
Directors or senior management; (ii) transactions, expenses and payments pursuant to
the terms of or contemplated by the Stockholders Agreement, the Management
Subscription and Stockholders Agreements or the Stock Purchase Agreement; (iii) any
Restricted Payments or other payments or transactions expressly permitted under
Section 4.03; (iv) payments for services and reimbursement of reasonable expenses
under the Management Services Agreement; (v) payments to be made in connection with
the consummation of the transactions contemplated by the Stock Purchase Agreement or
the financing thereof to be received by Xxxxxxx Xxxxx & Partners, L.P., and its
Affiliates pursuant to the Stock Purchase Agreement as in effect on the Issue Date;
(vi) transactions and payments pursuant to leases between the Company and Xxxxxxx
Xxxxx and Xxxxxxx Xxxxxx, General Partnership in effect on the Issue Date as any
such leases may be extended or amended from time to time; (vii) transactions between
or among the Company and any of its Restricted Subsidiaries or between or among such
Restricted Subsidiaries; provided such transactions are not otherwise prohibited by
this Indenture; (viii) Permitted Investments; (ix) loans or advances to officers or
employees of the Company in the ordinary course of business not to exceed $500,000
in the aggregate at any one time outstanding and (x) the issuance of Capital Stock
(other than Disqualified Capital Stock) of the Company for cash to Affiliates of the
Company.
ARTICLE TWO
MISCELLANEOUS
Section 2.01. Confirmations. Except as expressly amended by this Second Supplemental
Indenture, the Indenture and the Notes are ratified and confirmed in all respects; all of the
terms, provisions and conditions shall be and remain in full force and effect; and the Indenture as
so amended shall be read, taken and construed as one and the same instrument.
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Section 2.02. Effectiveness and Operation of Amendment. Upon the execution and
delivery of this Supplemental Indenture by the Trustee and the Company, the Amendment contained
herein shall become effective as of the date hereof.
Section 2.03. Reference to and Effect on the Indenture. On and after the date hereof,
each reference in the Indenture to “this Indenture,” “hereunder,” “hereof” or “herein” shall mean
and be a reference to the Indenture as supplemented by this Supplemental Indenture unless the
context otherwise requires. The Indenture, as supplemented by this Supplemental Indenture, shall
be read, taken and construed as one and the same instrument. Except as specifically amended above,
the Indenture shall remain in full force and effect and is hereby ratified and confirmed.
Section 2.04. Corresponding Amendment to Notes. Each Note shall be amended to make
the terms of such Note consistent with the terms of the Indenture, as amended by this Supplemental
Indenture. To the extent of any conflict between the terms of the Notes and the terms of the
Indenture, as supplemented by this Supplemental Indenture, the terms of the Indenture, as
supplemented by this Supplemental Indenture, shall govern and be controlling.
Section 2.05. Concerning the Trustee. The Trustee accepts the trust created by the
Indenture, as supplemented by this Supplemental Indenture, and agrees to perform the same, but only
upon the terms and conditions set forth in the Indenture, as supplemented by this Supplemental
Indenture, to which the parties hereto and the Holders, from time to time, of the Notes agree and,
except as expressly set forth in the Indenture, shall incur no liability or responsibility in
respect thereof. Without limiting the generality of the foregoing, the Trustee assumes no
responsibility for the correctness of the recitals herein contained, which shall be taken as the
statements of the Company. The Trustee makes no representation and shall have no responsibility as
to the validity or the sufficiency of this Supplemental Indenture.
Section 2.06. Trust Indenture Act Controls. No modification of any provisions of the
Indenture effected by this Supplemental Indenture is intended to eliminate or limit any provision
of the Indenture that is required to be included therein by Trust Indenture Act of 1939, as amended
(the “TIA”), as in force as of the effectiveness of this Supplemental Indenture. If and to
the extent that any provision of this Supplemental Indenture limits, qualifies or conflicts with
another provision included in this Supplemental Indenture or in the Indenture, which is required to
be included in this Supplemental Indenture or the Indenture by the TIA, such required provision of
the TIA shall control.
Section 2.07. Governing Law. This Supplemental Indenture shall be deemed to be
governed by, and construed in accordance with, the internal laws of the State of New York, but
without giving effect to applicable principles of conflicts of law thereof to the extent that the
application of the laws of another jurisdiction would be required thereby.
Section 2.08. Conflicts. To the extent of any inconsistency between the terms of the
Indenture and this Supplemental Indenture, the terms of this Supplemental Indenture will control.
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Section 2.09. Successors and Assigns. All agreements of the Company in this
Supplemental Indenture shall bind its successors and assigns. All agreements of the Trustee in
this Supplemental Indenture shall bind its successors and assigns.
Section 2.10. Section Titles and Headings. The titles and headings of the sections of
this Supplemental Indenture are for convenience purposes only and shall not affect the construction
hereof.
Section 2.11. Counterparts. This Supplemental Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts together shall
constitute but one and the same instrument.
Section 2.12. Severability. In case any provision of this Supplemental Indenture
shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof or of the Indenture shall not in any way be affected or impaired
thereby.
Section 2.13. Entire Agreement. This Supplemental Indenture constitutes the entire
agreement of the parties hereto with respect to the amendments to the Indenture set forth herein.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture to be duly executed as
of the date first written above.
| DIAMOND TRIUMPH AUTO GLASS, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Chief Financial Officer | |||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
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