ANIXTER INC. the Company ANIXTER INTERNATIONAL INC. the Guarantor and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. the Trustee SECOND SUPPLEMENTAL INDENTURE Dated as of , 2008 to INDENTURE Dated as of September 9, 1996

Exhibit 4.3

 

 

ANIXTER INC.
the Company

ANIXTER INTERNATIONAL INC.
the Guarantor

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
the Trustee

SECOND SUPPLEMENTAL INDENTURE

Dated as of      , 2008

to

INDENTURE

Dated as of September 9, 1996

 

 

     SECOND SUPPLEMENTAL INDENTURE, dated as of      , 2008 (the “Second Supplemental Indenture”), between Anixter Inc. (the “Company”), Anixter International Inc. (the “Guarantor”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).

     Capitalized terms used herein but not otherwise defined herein shall have the meanings given to such terms in the Indenture, dated as of September 9, 1996, among the Company, the Guarantor and the Trustee, as amended by a First Supplemental Indenture, dated February 24, 2005 (as amended, the “Indenture”).

Recitals

     WHEREAS, the Company and the Guarantor executed and delivered the Indenture to the Trustee to provide for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness, guaranteed by the Guarantor, to be issued in one or more series unlimited as to principal amount;

     WHEREAS, Section 9.01(4) of the Indenture provides that the Company, the Guarantor and the Trustee may without the consent of any Holders enter into indentures supplemental to the Indenture to add, change or eliminate provisions in respect to one or more series of Securities provided, however, that any such addition, change or elimination shall either (i) not adversely affect the rights of the Holders of Outstanding Securities of any series in any material respect, or (ii) not apply to any Outstanding Securities of any series created prior to the execution of such supplemental indenture where such addition, change or elimination has an adverse effect on the rights of the Holders of such Outstanding Securities in any material respect;

     WHEREAS, the Company and the Guarantor desire to further amend the Indenture with respect to all series of Securities hereafter established under the Indenture;

     WHEREAS, the changes contained herein do not adversely affect the rights of the Holders of Outstanding Securities of any series issued pursuant to the Indenture in any material respect;

     WHEREAS, all actions necessary to make this Second Supplemental Indenture a legal, valid and binding obligation of the parties hereto in accordance with its terms and the terms of the Indenture have been performed; and

     WHEREAS, the Company and the Trustee desire to enter into, execute and deliver this Second Supplemental Indenture in compliance with the provisions of the Indenture;

     NOW THEREFORE, the Company does hereby covenant and agree to and with the Trustee as follows:

ARTICLE ONE

AMENDMENTS TO INDENTURE

     This Indenture is hereby amended as follows:

     1.1 Supplemental Indenture. This Second Supplemental Indenture is supplemental to the Indenture and does and shall be deemed to form a part of, and shall be construed with and as a part of, the Indenture with respect to Securities of any series established on or after the date of the Second Supplemental Indenture. Holders of Securities of any series established on or after the date of the Second Supplemental Indenture shall be bound hereby, and shall be entitled to the benefits of the Second Supplemental Indenture. Holders of Securities of any series established prior to the date of the Second Supplemental Indenture shall not be bound hereby, and shall not be entitled to the benefits of the Second Supplemental Indenture.

     1.2 Amendment of Section 101. Section 101 (“Definitions”) is hereby amended as follows:

     (a) The following definitions are added:

“Board of Directors” means the board of directors of the Guarantor.

“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) in equity of such Person, whether outstanding on the date of the Second Supplemental Indenture or issued thereafter, including, without limitation, all common stock and preferred stock.

“Change of Control” means such time as:

(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Guarantor and its Subsidiaries, taken as a whole, to any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) other than the Guarantor or a Subsidiary;

(2) a “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) becomes the ultimate “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Guarantor on a fully diluted basis;

(3) the failure of the Guarantor to own 100% of the outstanding Capital Stock of the Company, provided that up to 3% of the outstanding Voting Stock of the Company may be issued or transferred to employees of the Guarantor and its Subsidiaries without such issuance or transfer constituting a Change of Control;

(4) the adoption of a plan relating to the liquidation or dissolution of the Company or the Guarantor;

(5) individuals who on the date of the Second Supplemental Indenture constitute the Board of

Directors (together with any new directors whose election by the Board of Directors or whose nomination by the Board of Directors for election by stockholders of the Guarantor was approved by a vote of at least a majority of the members of the Board of Directors then in office who either were members of the Board of Directors on the date of the Second Supplemental Indenture or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the members of the Board of Directors then in office; or

(6) the Company or the Guarantor consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into the Company or the Guarantor, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or the Guarantor, as applicable, or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where (a) the Voting Stock of the Company or the Guarantor, as applicable, outstanding immediately prior to such transaction constitutes or is converted into or exchanged for a majority of the outstanding shares of Voting Stock of the surviving Person or any direct or indirect parent company of the Surviving Person (immediately after giving effect to such issuance) and (b) immediately after such transaction, no “person” or “group” (as such terms are used in Section 13(d) and 14(d) of the Exchange Act) becomes, directly or indirectly, the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of 50% or more of the voting power of the Voting Stock of the surviving Person.

“Consolidated Cash Flow Available for Fixed Charges” means, with respect to any Person for any period:

(1) the sum of, without duplication, the amounts for such period, taken as a single accounting period, of:

(a) Consolidated Net Income;

(b) Consolidated Non-cash Charges;

(c) Consolidated Interest Expense;

(d) Consolidated Income Tax Expense (other than income tax expense (either positive or negative) attributable to extraordinary gains or losses); and

(2) less non-cash items increasing Consolidated Net Income for such period, other than (a) the accrual of revenue consistent with past practice, and (b) reversals of prior accruals or reserves for cash items previously excluded in the calculation of Consolidated Non-cash Charges.

In calculating “Consolidated Cash Flow Available for Fixed Charges” for any period, if any Asset Sale or Asset Acquisition (whether pursuant to a stock or an asset transaction) shall have occurred since the first day of any four fiscal quarter period for which the “Consolidated Cash Flow Available for Fixed Charges” is being calculated, such calculation shall give pro forma effect to such Asset Sale or Asset Acquisition.

For the purposes of calculating “Consolidated Cash Flow Available for Fixed Charges” “Asset Acquisition” means any acquisition of property or series of related acquisitions of property that constitutes all or substantially all of the assets of a business, unit or division of a Person or constitutes all or substantially all of the common stock (or equivalent) of a Person; and “Asset Sale” means any disposition of property or series of related dispositions of property that involves all or substantially all of the assets of a business, unit or division of a Person or constitutes all or substantially all of the common stock (or equivalent) of a Subsidiary.

“Consolidated Income Tax Expenses” means, with respect to any Person for any period the provision for federal, state, local and foreign income taxes of such Person and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP.

“Consolidated Interest Expense” means, with respect to any Person for any period, without duplication, the sum of:

(1) the interest expense of such Person and its Restricted Subsidiaries for such period as determined on a consolidated basis in accordance with GAAP; and

(2) the interest component of capital lease obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Restricted Subsidiaries during such period determined on a consolidated basis in accordance with GAAP.

“Consolidated Net Income” means, with respect to any Person, for any period, the consolidated net income (or loss) of such Person and its Restricted Subsidiaries for such period as determined in accordance with GAAP, adjusted, to the extent included in calculating such net income, by excluding, without duplication:

(1) all extraordinary gains or losses (net of fees and expenses relating to the transaction giving rise thereto);

(2) the portion of net income of such Person and its Restricted Subsidiaries allocable to minority interests in unconsolidated Persons to the extent that cash dividends or distributions have not actually been received by such Person or one of its Restricted Subsidiaries;

(3) gains or losses in respect of any sales of capital stock or asset sales outside the ordinary course of business by such Person or one of its Restricted Subsidiaries (net of fees and expenses relating to the transaction giving rise thereto), on an after-tax basis;

(4) any gain or loss realized as a result of the cumulative effect of a change in accounting principles;

(5) any fees and expenses paid in connection with the issuance of the Securities or other indebtedness;

(6) nonrecurring or unusual gains or losses;

(7) the net after-tax effects of adjustments in the inventory, property and equipment, goodwill and intangible assets line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of purchase accounting or the amortization or write-off of any amounts thereof;

(8) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, investment, asset sale, issuance or repayment of indebtedness, issuance of stock, stock options or other equity-based awards, refinancing transaction or amendment or modification of any debt instrument (including without limitation any such transaction undertaken but not completed);

(9) any gain or loss recorded in connection with the designation of a discontinued operation (exclusive of its operating income or loss);

(10) any non-cash compensation or other non-cash expenses or charges arising from the grant of or issuance or repricing of stock, stock options or other equity-based awards or any amendment, modification, substitution or change of any such stock, stock options or other equity-based awards; and

(11) any non-cash impairment, restructuring or special charge or asset write-off or write-down, and the amortization or write-off of intangibles.

“Consolidated Non-cash Charges” means, with respect to any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill and other intangibles) and other non-cash expenses (including stock option expenses and any goodwill impairment charges) of such Person and its Restricted Subsidiaries reducing Consolidated Net Income of such Person and its Restricted Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charges which require an accrual of or a reserve for cash charges for any future period).

“Credit Agreement” means the amended and restated five year revolving credit agreement, dated as of April 20, 2007, as amended, among the Company and other borrowers party thereto from time to time the lenders party thereto from time to time, Bank of America, N.A. as Administrative Agent, and the lenders from time to time party thereto, together with any agreements, instruments, security agreements, guaranties and other documents executed or delivered pursuant to or in connection with such credit agreement, as such credit agreement or such agreements, instruments, security agreements, guaranties or other documents

may be amended, supplemented, extended, restated, renewed or otherwise modified from time to time and any successive refundings, refinancings, replacements or substitutions thereof or therefor, whether with the same or different lenders.

“Credit Facilities” means one or more debt facilities (including, without limitation, the Credit Agreement), commercial paper facilities or indentures, in each case with banks or other institutional lenders or a trustee, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit or issuances of notes, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced in whole or in part from time to time.

“Domestic Subsidiary” means any Subsidiary of the Company or the Gurantor that is organized under the laws of the United States or any state of the United States or the District of Columbia.

“Investment Grade” means (1) BBB-or above, in the case of S&P (or its equivalent under any successor Rating Categories of S&P) and Baa3 or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s) or (2) the equivalent in respect of the Rating Categories of any Rating Agencies.

“Moody’s” means ▇▇▇▇▇’▇ Investors Service, Inc.

“Offer to Purchase” means an offer to purchase Securities then outstanding by the Company from the Holders commenced by mailing a notice to the Trustee and each Holder stating:

(1) that all Securities validly tendered will be accepted for payment;

(2) the purchase price and the date of purchase (which shall be a business day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (the “Payment Date”);

(3) that any Security not tendered will continue to accrue interest pursuant to its terms;

(4) that, unless the Company defaults in the payment of the purchase price, any Security accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and after the Payment Date;

(5) that Holders electing to have a Security purchased pursuant to the Offer to Purchase will be required to surrender the Security, together with the form entitled “Option of the Holder to Elect Purchase” on the reverse side of the Security completed, to the Paying Agent at the address specified in the notice prior to the close of business on the business day immediately preceding the Payment Date;

(6) that Holders will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the third business day immediately preceding the Payment Date, a telegram, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Securities delivered for purchase and a statement that such Holder is withdrawing his election to have such Securities purchased; and

(7) that Holders whose Securities are being purchased only in part will be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered; provided that each Security purchased and each new Security issued shall be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof.

On the Payment Date, the Company shall (1) accept for payment Securities or portions thereof tendered pursuant to an Offer to Purchase; (2) deposit with the Paying Agent money sufficient to pay the purchase price of all Securities or portions thereof so accepted; and (3) deliver, or cause to be delivered, to the Trustee all Securities or portions thereof so accepted together with an officers’ certificate specifying the Securities or portions thereof accepted for payment by the Company. The Paying Agent shall promptly mail to the Holders of Securities so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Security equal in principal amount to any unpurchased portion of the Security surrendered; provided that each Security purchased and each new Security issued shall be in a principal amount of $2,000 or integral multiples of $1,000 in excess thereof. The Company will publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date. The Trustee shall act as the Paying Agent for an Offer to Purchase. The Company will comply with Rule 14e-1 under the Exchange Act and any other securities

laws and regulations thereunder to the extent such laws and regulations are applicable, in the event that the Company is required to repurchase Securities pursuant to an Offer to Purchase.

“Rating Agencies” means (1) S&P and Moody’s or (2) if S&P or Moody’s or both of them are not making ratings publicly available, a nationally recognized U.S. rating agency or agencies, as the case may be, selected by the Company, which will be substituted for S&P or Moody’s or both, as the case may be.

“Rating Category” means (1) with respect to S&P, any of the following categories (any of which may include a “+” or “–”): AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or equivalent successor categories), (2) with respect to Moody’s, any of the following categories (any of which may include a “1”,”2” or “3”): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories) and (3) the equivalent of any such categories of S&P or Moody’s used by another Rating Agency, if applicable.

“S&P” means Standard & Poor’s, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies.

“Secured Leverage Ratio” means, as of the date of determination, the ratio of (a) the Secured Debt of the Company, the Guarantor and the Restricted Subsidiaries to (b) Consolidated Cash Flow Available for Fixed Charges of the Company, the Guarantor and the Restricted Subsidiaries for the most recently ended four fiscal quarter period ending immediately prior to such date for which financial statements are available.

In the event that the Company, the Guarantor or any Restricted Subsidiary incurs, redeems, retires or extinguishes any Secured Debt (other than under a revolving credit facility as set forth in the last sentence of the definition of Secured Debt) subsequent to the commencement of the period for which the Secured Leverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Secured Leverage Ratio is made, then the Secured Leverage Ratio shall be calculated giving pro forma effect to such incurrence, redemption, retirement or extinguishment of Secured Debt as if the same had occurred at the beginning of the applicable four-quarter period.

“Voting Stock” means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.

     (b) The definition of “GAAP” is amended and restated to read in its entirety as follows:

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United States which are in effect on the date of the Second Supplement Indenture.

     (c) The definition of “Unrestricted Subsidiary” is amended and restated to read in its entirety as follows:

“Unrestricted Subsidiary” means (a) any Subsidiary the principal business and assets of which are located outside the United States of America (including its territories and possessions), (b) any Subsidiary the principal business of which is owning, leasing, dealing in or developing real property for residential or office building purposes, and (c) any Subsidiary substantially all the assets of which consist of stock or other securities of an Unrestricted Subsidiary or Unrestricted Subsidiaries of the

character described in clauses (a) and (b) of this paragraph, unless and until, in each of the cases specified in this paragraph, any such Subsidiary shall have been designated to be a Restricted Subsidiary pursuant to clause (b) of the definition of “Restricted Subsidiary.”

     (d) The definition of “Secured Debt” is amended to add the following sentence at the end thereof:

Notwithstanding the foregoing, a binding commitment to lend under a revolving credit facility shall be deemed to be an incurrence of indebtedness in the full amount of such commitment on the date that such commitment is entered into, regardless of whether the full amount of such revolving credit facility is actually borrowed, and thereafter the amount of such commitment shall be deemed to be fully borrowed at all times for purposes of Section 1005.

     (e) The definitions of “Consolidated Net Tangible Assets,” “Principal Facility” and “Restricted Subsidiary” are hereby amended to change the phrase “the date of the First Supplemental Indenture” to “the date of the Second Supplemental Indenture.”

     1.3 Amendment of Section 501. Section 501 (“Events of Default”) is hereby amended:

     (a) to renumber paragraph (8) as paragraph (9),

     (b) to add the parenthetical “(or 120 days in the case of the covenant contained in Section 1007 hereof)” after the words “30 days” in paragraph (4),

     (c) to amend and restate paragraph (5) to read in its entirety as follows:

if a default by the Company or the Guarantor under one or more mortgages, indentures, bonds, debentures, notes or instruments under which there may be issued, secured or evidenced indebtedness for money borrowed shall happen and shall either (x) constitute a failure to pay more than $25,000,000 in principal amount of such indebtedness when due and payable at its stated maturity, or (y) result in $25,000,000 in principal amount of such indebtedness becoming or being declared due and payable prior to its stated maturity, and that acceleration shall not be rescinded or annulled, or such indebtedness shall not have been discharged before written notice to the Company and Guarantor is given pursuant to Section 502; or

     (d) to add a new paragraph (8) to read in its entirety as follows:

the entry against the Company or the Gurantor of a final judgment or final judgments for the payment of money in an aggregate

amount in excess of $100,000,000, by a court or courts of competent jurisdiction, which judgments remain undischarged, unwaived, unstayed, unbonded or unsatisfied for a period of 60 consecutive days; or

     1.4 Amendment of Section 1005. Section 1005 (“Restriction on Creation of Secured Debt”) is hereby amended

(a) to change the phrase “the date of the First Supplemental Indenture” to “the date of the Second Supplemental Indenture”,

(b) to amend and restate clause (i) of paragraph (a) to read as follows:

Any Security Interest on any property acquired, constructed, developed or improved after the date of the Second Supplemental Indenture by the Gurantor or a Restricted Subsidiary created prior to or contemporaneously with, or within 180 days after the acquisition of property which is a parcel of real property, a building, machinery or equipment; or

(c) to amend and restate paragraph (k) to read in its entirety as follows:

(k) Security Interests to secure obligations under Credit Facilities in an aggregate principal amount, together with the aggregate principal amount of all other Secured Debt then outstanding, not to exceed the greater of (a) $750 million and (b) an amount that does not cause the Secured Leverage Ratio (after giving effect to the incurrence of such obligations under Credit Facilities) to exceed 2.00:1.0; or

     1.5 Amendment of Sections 1007. Section 1007 (currently reserved) is renamed “Commission Reports and Reports to Holders” and shall read in its entirety as follows:

Whether or not the Guarantor is then required to file reports with the Commission, the Guarantor shall file with the Commission all such reports and other information as it would be required to file with the Commission by Section 13(a) or 15(d) under the Exchange Act if it were subject thereto within the time periods specified by the Commission’s rules and regulations. For as long as any Securities are outstanding, the Guarantor shall supply the Trustee and each Holder who so requests or shall supply to the Trustee for forwarding to each such Holder, without cost to such Holder, copies of such reports and other information.

     1.6 Amendment of Sections 1008. Section 1008 (currently reserved) is renamed “Future Guarantees” and shall read in its entirety as follows:

(A) (x) If the Company, the Guarantor or any Restricted Subsidiary acquires or creates a Domestic Subsidiary that is a Restricted Subsidiary with either (i) assets having a book value (determined in accordance with GAAP on a stand-alone basis and not consolidated with its subsidiaries and not including any equity interests held by such Domestic Subsidiary) in excess of 5% of the Guarantor’s consolidated total assets (determined as of the end of the Guarantor’s most recently completed fiscal quarter for which financial statements are prepared) or (ii) Consolidated Cash Flow Available for Fixed Charges (determined on a stand-alone basis and not consolidated with its subsidiaries) in excess of 5% of the Guarantor’s Consolidated Cash Flow Available for Fixed Charges for the most recently completed last four fiscal quarters for which financial statements are prepared, or (y) if a Domestic Subsidiary that is a Restricted Subsidiary (i) has, as of any fiscal year end, assets having a book value (determined in accordance with GAAP on a stand-alone basis and not consolidated with its subsidiaries and not including any equity interests held by such Domestic Subsidiary) in excess of 5% of the Guarantor’s consolidated total assets as of the end of such fiscal year or (ii) generates Consolidated Cash Flow Available for Fixed Charges (determined on a stand-alone basis and not consolidated with its subsidiaries) for any fiscal year in excess of 5% of the Guarantor’s annual Consolidated Cash Flow Available for Fixed Charges for such fiscal year, and (B) whether before or after the occurrence of any event described in clause (A)(x) or (y) above, such Domestic Subsidiary either guarantees any other indebtedness of the Guarantor or the Company or incurs any indebtedness in an aggregate principal amount in excess of $50,000,000, such Domestic Subsidiary will, within 30 days of later of the date on

which it was acquired or created and the date on which it guarantees any such indebtedness or incurs any such indebtedness (in the case of clause (A)(x)) or within 30 days of the later of the filing of the Guarantor’s annual audited financial statements for the applicable fiscal year with the Commission and the date on which it guarantees any such indebtedness or incurs any such indebtedness (in the case of clause (A)(y)), jointly and severally, guarantee the Securities of each series established on or after the date of the Second Supplemental Indenture by executing and delivering a supplemental indenture to this Indenture. Notwithstanding the foregoing, Anixter Receivables Corporation shall not be required to guarantee the Securities for as long as its sole business is the purchase, sale and financing of receivables and related activities in connection with the Company’s receivables facility.

Notwithstanding the foregoing, Section 1008 shall cease to apply to a series of Securities during any period of time that, and for so long as, such Securities become rated Investment Grade by each of the Rating Agencies; provided that if on any subsequent date such Securities cease to be rated Investment Grade for any reason by either Rating Agency, then the Company, the Guarantor and the Restricted Subsidiaries will thereafter again be subject to Section 1008. Any guarantees of a series of Securities that are required by the preceding paragraph or that have been made pursuant to such preceding paragraph, in each case prior to such series of Securities becoming rated Investment Grade, shall continue in effect at all times, regardless of such series of Securities becoming rated Investment Grade.

     1.7 Amendment of Sections 1010. Section 1010 (currently reserved) is renamed “Repurchase of Securities upon a Change of Control” and shall read in its entirety as follows:

The Company shall commence, within 30 days of the occurrence of a Change of Control, and consummate an Offer to Purchase for all Securities then outstanding, at a purchase price equal to 101% of their principal amount, plus accrued interest, if any, to the Payment Date.

The Company shall not be required to make an Offer to Purchase upon a Change of Control if (i) a third party makes the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture, and purchases all Securities properly tendered and not withdrawn under the Offer to Purchase upon a Change of Control, or (ii) a notice of redemption has been given pursuant to this Indenture as described in Article 11 to redeem all securities then outstanding, unless and until there is a default in payment of the applicable Redemption Price. An Offer to Purchase upon the

occurrence of a Change of Control may be made by either the Company or a third party in advance of a Change of Control if a definitive agreement to effect the Change of Control is in place at the time such Offer to Purchase is made and the Offer to Purchase is effected upon the consummation of the Change of Control, and such Offer to Purchase may be conditional on the Change of Control.

ARTICLE TWO

MISCELLANEOUS

     2.1 Acceptance by Trustee. The Trustee accepts the amendments to the Indenture effected by this Second Supplemental Indenture and agrees to execute the trusts created by the Indenture as hereby amended, but only upon the terms and conditions set forth in the Indenture.

     2.2 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Second Supplemental Indenture or the Securities, and it shall not be responsible for the recitals or any statement of the Company in this Second Supplemental Indenture.

     2.3 Ratification. Except as hereby expressly amended, the Indenture and the Securities issued thereunder are in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

     2.4 Effectiveness. This Second Supplemental Indenture shall become effective as of the date first above written.

     2.5 Governing Law. This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principals thereof (other than Section 5-1401 of the General Obligation Law).

     2.6 Counterpart Originals. This instrument may be executed in any number of counterparts or with counterpart signatures, each of which as executed shall be deemed to be an original, but all such counterparts shall constitute one and the same instrument.

SIGNATURES

     IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed and attested, all as of the day and year first above written.

Attest:

Attest:

Attest: