**Exhibit 4.9**

 

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**DUANEREADE INC.**

 

Senior ConvertibleNotes due 2022

 

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**FIRSTSUPPLEMENTAL INDENTURE**

 

Dated as of July 30,2004

 

Supplementing theIndenture, dated as of April 16, 2002, among Duane Reade Inc., as Issuer, the Guarantors named thereinandU.S. Bank National Association, successor trustee to State Street Bank and Trust Company, as Trustee

 

 

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**U.S. BANKNATIONAL ASSOCIATION**,

asTrustee

 

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FIRST SUPPLEMENTAL INDENTURE, dated as of July 30,2004 (this “First Supplemental Indenture”), by and among Duane ReadeInc., a Delaware Corporation, as Issuer, having its principal office at 440Ninth Avenue, Sixth Floor, New York, NY, 10001 (the “Company”), Duane Reade Shareholders, LLC (formerly known asRex Corner Holdings, LLC), a Delaware limited liability company (the “Parent”),Duane Reade Acquisition Corp., a Delaware corporation (the “MergerSub”),with Duane Reade, a New York general partnership, DRI I Inc., a Delawarecorporation, Duane Reade International, Inc., a Delaware corporation and DuaneReade Realty, Inc., a Delaware corporation, as guarantors (together, the “Guarantors”),and U.S. Bank National Association, a national banking association, successortrustee to State Street Bank and Trust Company, as trustee under the Indenturereferred to below (the “Trustee”). Capitalized terms used but nototherwise defined herein shall have the respective meanings ascribed to suchterms in the Indenture (as defined below).

 

W I T N E S S E T H

 

WHEREAS, the Company, the Guarantors and the Trustee executedand delivered an Indenture, dated as of April 16, 2002 (the “Indenture”)providing for the issuance of Senior Convertible Notes due 2022 (the “Securities”);

 

WHEREAS, the MergerSub, the Parent and the Companyentered into an Agreement and Plan of Merger, dated as of December 22, 2003, asamended, pursuant to which the MergerSub has merged with and into the Company,with the Company as the surviving corporation (the “Merger”);

 

WHEREAS, pursuant to Section 11.14 of the Indenture, ifthe Company is party to a merger, the Person obligated to deliver securities,cash or other assets upon conversion of Securities shall enter into asupplemental indenture;

 

WHEREAS, pursuant to Section 11.14 of the Indenture,the First Supplemental Indenture shall provide that the Holder of a Securitymay convert such Security into the kind and amount of consideration such Holderwould have received immediately after the Merger if such Holder had convertedthe Security immediately before the effective date of the Merger;

 

WHEREAS, pursuant to Section 9.01 of the Indenture,the Company may amend the Indenture without the consent of any Securityholdersto evidence, among other things, the merger of the Company with or into anothercorporation and compliance by the parties to such merger with Section 11.14 ofthe Indenture;

 

WHEREAS, the consideration paid per share of theCompany’s Common Stock in connection with the Merger was $16.50 in cash,without interest; and

 

WHEREAS, the entry into this First SupplementalIndenture by the parties hereto is in all respects authorized by the provisionsof the Indenture, and all things necessary to make this First SupplementalIndenture a valid agreement of the Company in accordance with its terms havebeen done.

 

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NOW THEREFORE, in consideration of the foregoing andfor other good and valuable consideration, the receipt of which is herebyacknowledged, the Company, the Parent and the Trustee mutually covenant andagree as follows:

 

1.             Effect. This First Supplemental Indenture shallbecome effective upon its execution and delivery by the parties hereto.

 

2.             Right to Receive $16.50 per Share.  Upon the conversion of a Security by theHolder thereof pursuant to the Indenture, such Security shall convert into theright to receive from the Company $16.50 per share of Common Stock, in cash andwithout interest, issuable to such Holder in connection with such conversionassuming (to the extent applicable) that such Holder (i) was not a constituentPerson or an Affiliate of a constituent Person to the merger; (ii) made noelection with respect thereto; and (iii) was treated alike with the pluralityof non-electing holders.  Pursuant toSection 11.10 of the Indenture, no adjustments shall be made on any Holder’sright to receive $16.50 in cash and interest will not accrue on the cash.

 

3.             Responsibility of Trustee.  The Trustee shall not be responsible for thevalidity as to the Company or sufficiency of this First Supplemental Indentureor as to the due execution thereof by the Company, the Parent, the MergerSub andthe Guarantors or as to recitals of fact contained herein, all of which aremade solely by the Company.

 

4.             Governing Law. The laws of the State of New York shall govern this First SupplementalIndenture.

 

5.             Multiple Originals.  The parties may sign any number of copies ofthis First Supplemental Indenture. Each signed copy shall be an original, butall of them together shall represent the same agreement. One originally signedcopy is enough to prove this First Supplemental Indenture.

 

6.             Ratification of Indenture.  Except as expressly amended hereby, theIndenture is in all respects ratified and confirmed and all the terms,conditions and provisions thereof shall remain in full force and effect.

 

7.             Part of Indenture.  This First Supplemental Indenture shall forma part of the Indenture for all purposes and every holder of Securitiesheretofore or hereafter authenticated and delivered shall be bound hereby.

 

8.             Effect of Headings.  The Section headings herein are forconvenience only and shall not affect the construction hereof.

 

 

[Remainder of pageintentionally left blank.]

 

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IN WITNESS WHEREOF, the parties have executed this FirstSupplemental Indenture as of the date first written above.

 
|   | DUANE READE INC.              |
|--------|-------------------------------|
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By: |   /s/ Michelle D. Bergman |   |
|   |                          |   | Name: Michelle D. Bergman |
|   |                          |   | Title: Vice President and General  Counsel |
|   |                          |   |   |
|   |                          |   |   |
|   | DUANE READE SHAREHOLDERS, LLC |
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By: |   /s/ Andrew J. Nathanson |   |
|   |                          |   | Name: Andrew J. Nathanson |
|   |                          |   | Title: Vice President |
|   |                          |   |   |
|   |                          |   |   |
|   | DUANE READE ACQUISITION CORP. |
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By: |   /s/ Andrew J. Nathanson |   |
|   |                          |   | Name: Andrew J. Nathanson |
|   |                          |   | Title: Vice President |
|   |                          |   |   |
|   |                          |   |   |
|   | DUANE READE                   |
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By:  DUANE  READE INC., a general partner |
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By: |   /s/ Michelle D. Bergman |   |
|   |                          |   | Name: Michelle D. Bergman |
|   |                          |   | Title: Vice President and General  Counsel |
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By:  DRI I  INC., a general partner |
|   |                          |   |   |
|   |                          |   |   |
|   |                          | By: |   /s/ Michelle D. Bergman |   |
|   |                          |   | Name: Michelle D. Bergman |
|   |                          |   | Title: Vice President and General  Counsel |
|        |                               |  |  |  |  |

 

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|   | DRI I, INC.                     |
|--------|---------------------------------|
|   |                            |   |   |
|   |                            |   |   |
|   |                            | By: |   /s/ Michelle D. Bergman |   |
|   |                            |   | Name: Michelle D. Bergman |
|   |                            |   | Title: Vice President and General  Counsel |
|   |                            |   |   |
|   |                            |   |   |
|   | DUANE READE INTERNATIONAL, INC. |
|   |                            |   |   |
|   |                            |   |   |
|   |                            | By: |   /s/ Michelle D. Bergman |   |
|   |                            |   | Name: Michelle D. Bergman |
|   |                            |   | Title: Vice President and General  Counsel |
|   |                            |   |   |
|   |                            |   |   |
|   | DUANE READE REALTY, INC.        |
|   |                            |   |   |
|   |                            |   |   |
|   |                            | By: |   /s/ Michelle D. Bergman |   |
|   |                            |   | Name: Michelle D. Bergman |
|   |                            |   | Title: Vice President and General  Counsel |
|   |                            |   |   |
|   |                            |   |   |
|   | U.S. BANK NATIONAL ASSOCIATION, |
|   | as Trustee                      |
|   |                            |   |   |
|   |                            |   |   |
|   |                            | By: |   /s/ Elizabeth C. Hammer |   |
|   |                            |   | Name: Elizabeth C. Hammer |
|   |                            |   | Title: Vice President |
|        |                                 |  |  |  |  |

 

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