FIRST SUPPLEMENTAL INDENTURE, dated as of
June 21, 2007, by and between S&C Holdco 3, Inc., a
Delaware corporation (the “
Company”), and The Bank of New York Trust Company, N.A., as
trustee (the “
Trustee”).
WHEREAS, the Company and certain guarantors have heretofore executed and delivered to the Trustee
an
Indenture, dated as of
March 11, 2005 (the “
Indenture”), providing for the issuance of
11.00% Senior Notes due 2010 (the “
Notes”); and
WHEREAS, there have been issued and are now outstanding under the
Indenture, Notes in the aggregate
principal amount of approximately $125.1 million; and
WHEREAS, Section 9.02 of the
Indenture provides that
the Company and the Trustee may amend or
supplement certain provisions of the
Indenture with the consent of the holders of a majority in
principal amount of the Notes then outstanding; and
WHEREAS, the Company has offered to purchase each of the Notes for cash, upon the terms and subject
to the conditions set forth in that certain Offer to Purchase and Consent Solicitation Statement,
dated
June 7, 2007 (the “
Offer Statement”), and the accompanying Consent and Letter of
Transmittal (the “
Letter of Transmittal” and, together with the Offer Statement and the
ancillary documents associated therewith, the “
Offer to Purchase”); and
WHEREAS, under the terms of the Offer to Purchase, holders that tender Notes in accordance with the
terms of the Offer to Purchase and who deliver a duly executed Letter of Transmittal are deemed to
consent to certain amendments to the
Indenture which would permanently delete or amend certain of
the covenants, events of default and other related provisions of the
Indenture (the “
Proposed
Amendments”); and
WHEREAS, in accordance with the terms of the
Indenture, holders of a majority in principal amount
of the outstanding Notes have tendered their Notes and consented to the Proposed Amendments to be
effected by this First Supplemental
Indenture; and
WHEREAS, the execution and delivery of this First Supplemental
Indenture has been authorized by
resolutions of the Board of Directors of
the Company and the Trustee has received an Officer’s
Certificate and an Opinion of Counsel pursuant to Section 9.06 of the
Indenture; and
WHEREAS, all conditions and requirements necessary to make this First Supplemental
Indenture a
valid, legal, binding and enforceable instrument in accordance with its terms have been performed
and fulfilled by
the Company and the Trustee and the execution and delivery thereof have been in
all respects duly authorized by
the Company and the Trustee.
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NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit
of the others and for the equal and ratable benefit of the holders of Notes, as follows:
ARTICLE 1.
SECTION 1.1. AMENDMENT. Effective as of the Operative Date (as hereinafter defined), the
Indenture is hereby amended as follows:
(a) The following sections of the
Indenture are deleted in their entirety: Sections 4.02, 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19,
4.20, 4.22, 4.23, 4.24, 5.01(c)(ii), 5.02, 6.01(iv), 6.01(v), 6.05, 8.04(b), 8.04(c), 8.04(f),
8.04(h), 8.04(i) and 10.04(d).
The text of the above sections are replaced by the phrase “[Intentionally Omitted]” and the
surrounding sections are not renumbered.
(b) Section 4.21 is deleted in its entirety except as herein provided, such that Section 4.21, as
amended, shall read as follows:
In addition, any Subsidiary Guarantee by a Restricted Subsidiary
will be automatically and unconditionally released and discharged
if
the Company designates such Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with this
Indenture.
(c) Sections of the
Indenture and the Notes not amended pursuant to Sections 1.1(a) or 1.1(b)
hereof are amended to delete any references in the
Indenture or the Notes to sections deleted
pursuant to Sections 1.1(a) and 1.1(b) hereof.
(d) All definitions set forth in Section 1.01 of the
Indenture that relate to defined terms used
solely in the sections deleted hereby are deleted in their entirety.
SECTION 1.2. WAIVER. Subject to Section 6.04 of the
Indenture (to the extent applicable), all
Defaults and Events of Default that may exist under the
Indenture as of the Operative Date (as
defined herein) are hereby waived.
ARTICLE II
MISCELLANEOUS PROVISIONS
SECTION 2.1. DEFINED TERMS. For all purposes of this First Supplemental
Indenture, except as
otherwise defined or unless the context otherwise requires, terms
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used in capitalized form in this First Supplemental
Indenture and defined in the
Indenture have the
meanings specified in the
Indenture.
SECTION 2.2. INDENTURE. Except as amended hereby, the
Indenture and the Notes are in all respects
ratified and confirmed and all the terms shall remain in full force and effect.
SECTION 2.3. GOVERNING LAW. THIS FIRST SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS.
SECTION 2.4. SUCCESSORS. All agreements of
the Company in this First Supplemental
Indenture and
the Notes shall bind its successors. All agreements of the Trustee in this First Supplemental
Indenture shall bind its successors.
SECTION 2.5. DUPLICATE ORIGINALS. All parties may sign any number of copies of this First
Supplemental
Indenture. Each signed copy shall be an original, but all of them together shall
represent the same agreement.
SECTION 2.6. SEVERABILITY. In case any one or more of the provisions in this First Supplemental
Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any
reason, the validity, legality and enforceability of any such provision in every other respect and
of the remaining provisions shall not in any way be affected or impaired thereby, it being intended
that all of the provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 2.7. TRUSTEE DISCLAIMER. The Trustee accepts the amendment of the
Indenture effected by
this First Supplemental
Indenture, but on the terms and conditions set forth in the
Indenture,
including the terms and provisions defining and limiting the liabilities and responsibilities of
the Trustee, and without limiting the generality of the foregoing, the Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the recitals or statements
contained herein, all of which recitals or statements are made solely by
the Company, or for or
with respect to (i) the validity or sufficiency of this First Supplemental
Indenture or any of the
terms or provisions hereof, (ii) the proper authorization hereof by
the Company by corporate action
or otherwise, (iii) the due execution hereof by
the Company or (iv) the consequences (direct or
indirect and whether deliberate or inadvertent) of any amendment herein provided for, and the
Trustee makes no representation with respect to any such matters.
SECTION 2.8. EFFECTIVENESS. This First Supplemental
Indenture shall become effective upon
execution. The amendments to the
Indenture made hereby shall only become operative at such time as
the Company accepts the Notes tendered pursuant to the Offer to Purchase for payment (the
“
Operative Date”). In the event
the Company withdraws or terminates the Offer to Purchase,
or any condition of the Offer to Purchase is not satisfied or waived by
the Company, on or prior to
the Final Acceptance Date (as
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