THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE dated as of May 6, 1998 between IMO
INDUSTRIES INC., a Delaware corporation (the "Company"), and IBJ ▇▇▇▇▇▇▇▇ BANK &
TRUST COMPANY, as trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Company and the Trustee have heretofore entered into an
Indenture dated as of April 15, 1996 (as previously supplemented, the
"Indenture") pursuant to which the Company issued its 11 3/4% Senior
Subordinated Notes due 2006 (the "Notes"); and
WHEREAS, the Company has caused to be delivered to the holders of
the Notes a Consent Solicitation Statement, dated April 14, 1998 (as the same
may be amended from time to time, the "Consent Solicitation Statement"), and a
related Consent Letter pursuant to which the Company has solicited consents to
the adoption of certain proposed amendments to the Indenture, as further
described herein;
WHEREAS, Section 9.02 of the Indenture provides that the Company and
the Trustee may amend or supplement the Indenture and the Notes with the consent
of the Holders of at least a majority in principal amount of the outstanding
Notes (the "Requisite Holders"), subject to paragraphs (1) - (8) thereof;
WHEREAS, the Company has received the consents of the Requisite
Holders to the amendments set forth in this Third Supplemental Indenture;
WHEREAS, the Company has delivered an Officers' Certificate and
Opinion of Counsel to the Trustee pursuant to Section 9.06 of the Indenture;
WHEREAS, all other actions necessary to make this Third 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 Third Supplemental Indenture in compliance with the provisions
of the Indenture.
NOW, THEREFORE, the Company and the Trustee hereby agree as follows
for the benefit of each other and for the equal and ratable benefit of the
holders of the Notes:
ARTICLE ONE
DEFINITIONS
1.1. Definitions. Unless otherwise specifically defined herein, each
term used herein which is defined in the Indenture shall have the meaning
assigned to such term in the Indenture.
ARTICLE TWO
AMENDMENTS TO INDENTURE
2.1. Amendment of Article 1. The definition of "Change of Control"
in Section 1.01 ("Definitions") of Article 1 ("Definitions and Incorporation by
Reference") of the Indenture is hereby amended by inserting the following
sentence at the end of the current text of the definition:
"Notwithstanding the preceding sentence or any other provision in
this Indenture, neither (a) the contribution by II Acquisition
Corp., a Delaware corporation ("IIAC"), of 100% of its holdings of
the common stock of the Company, par value $1.00 per share, to any
wholly-owned subsidiary of IIAC, nor (b) the merger of the Company
with and into a wholly-owned subsidiary of IIAC, shall consitute a
"Change of Control" under this Indenture; provided that in the case
of (b), such subsidiary, at the time of such merger, is not,
individually or jointly with any other party, an obligor with
respect to, or guarantor of, any indebtedness."
2.2. Amendment of Article 5. Article 5 ("Successor Company") of the
Indenture is hereby amended by adding a subsection (c) to Section 5.01 ("When
Company May Merge or Transfer Assets") that reads in its entirety as follows:
"(c) Nothing in this Article 5 or any other provision in this
Indenture shall prevent or in any way limit the Company from
consummating a merger with and into any wholly-owned
subsidiary of II Acquisition Corp., a Delaware corporation
("IIAC"), or from effecting the payment, in connection with
such merger, for the remaining equity interests in the Company
not already owned by IIAC or its affiliates, and the
provisions of Section 5.01(a) and (b) shall be null and void
and of no force and effect with respect to such merger and
payment; provided, that such subsidiary, at the time of such
merger, is not, individually or jointly with any other party,
an obligor with respect to, or guarantor of, any
indebtedness."
2.3. Amendment of Article 6. Article 6 ("Defaults and Remedies") of
the Indenture is hereby amended by inserting a new paragraph after the final
paragraph of the current Section 6.01 ("Events of Default"), reading in its
entirety as follows:
"Notwithstanding the foregoing or any other provision in this
Indenture, neither (a) the contribution by II Acquisition Corp., a
Delaware corporation ("IIAC"), of 100% of its holdings of the common
stock of the Company, par value $1.00 per share, to any wholly-owned
subsidiary of IIAC, nor (b) the merger of the Company with and into
a wholly-owned subsidiary of IIAC, nor (c) the payment, in
connection with the merger, for the remaining equity interests in
the Company not already owned by IIAC or its affiliates, nor (d) the
failure to comply with Section 4.10 as a result of (a) or (b), shall
consitute a "Event of Default" under this Indenture; provided that
in the case of (b), such subsidiary, at the time of such merger, is
not, individually or jointly with any other party, an obligor with
respect to, or guarantor of, any indebtedness."
ARTICLE THREE
MISCELLANEOUS
3.1 Indemnification. The Company agrees to indemnify the Trustee and
hold the Trustee harmless from and against any and all liabilities, losses,
damages, claims or actions to which the Trustee may become subject as a result
of or in connection with the execution of this Third Supplemental Indenture and
the amendment of the Indenture pursuant hereto, and will reimburse the Trustee
for any legal or other expenses reasonably incurred by the Trustee in connection
with investigating or defending any such liability, loss, damage, claim or
action.
3.2. Ratification. Except as hereby expressly amended, the Indenture
and the Notes issued thereunder are in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and
effect. Upon execution, this Third Supplemental Indenture shall form a part of
the Indenture, and the Third Supplemental Indenture and the Indenture shall be
read, taken and construed as one and the same instrument for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered under
the Indenture shall be bound hereby.
3.3. Effectiveness. This Third Supplemental Indenture shall become
effective as of the date first above written.
3.4. Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
3.5. Counterpart Originals. The parties may sign any number of
copies of this Third Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed copy
is enough to prove this Third Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this THIRD
SUPPLEMENTAL INDENTURE to be duly executed as of the date hereof.
IMO INDUSTRIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST
COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President