EXHIBIT 4.3
▇▇▇▇▇▇ INDUSTRIES, INC.
AND
JPMORGAN CHASE BANK
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 15, 2002
DEBENTURES
SUPPLEMENT TO INDENTURE DATED AS OF JANUARY 15, 1990
This FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"), dated as
of May ___, 2002 (the "Execution Date"), is made and entered into between ▇▇▇▇▇▇
INDUSTRIES, INC., an Ohio corporation, having its principal office at ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), ▇▇▇▇▇▇ INDUSTRIES,
LTD., a Bermuda company, having its principal office at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Guarantor") and JPMORGAN CHASE BANK, a New York
banking corporation, as Trustee (the "Trustee").
WHEREAS, the Company entered into an Indenture dated as of January 15, 1990 (as
thereafter amended, the "Indenture"), with The Chase Manhattan Bank (National
Association), for the purpose of issuing its debentures, notes, bonds or other
evidences of indebtedness (the "Debentures") in one or more series, unlimited as
to aggregate principal amount and bearing such rates of interest, if any,
maturing at such time or times and having such other designations as shall be
fixed in accordance with the Indenture;
WHEREAS, the Trustee is the successor by merger to The Chase Manhattan Bank
(National Association) and has succeeded to all interests of such national
association under the Indenture;
WHEREAS, Company is in the process of reorganizing whereby it will effectively
change its place of incorporation from Ohio to Bermuda through a merger (the
"Merger");
WHEREAS, the Merger will be accomplished through the merger of a newly formed
Ohio corporation into the Company, in which the Company shall be the surviving
company in the merger and become a wholly owned, indirect subsidiary and a
Restricted Subsidiary (as hereinafter defined) of Guarantor, to be effective
upon the date (the "Merger Date") that a certificate of merger is filed with the
Secretary of State of the State of Ohio in accordance with Ohio law;
WHEREAS, in connection therewith, to be effective as of the Merger Date, the
Company proposes to add Guarantor as a corporate guarantor of certain payment
obligations and various terms of the Indenture and to modify other terms of the
Indenture;
WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in
all respects permitted by the provisions of Section 11.01 of the Indenture; and
WHEREAS, all corporate and other action necessary to make this Supplemental
Indenture a valid and binding agreement of the Company and the Guarantor in
accordance with its terms have been done.
NOW, THEREFORE, in consideration of the foregoing premises, it is mutually
covenanted and agreed as follows:
SECTION 1. The Indenture is hereby amended by amending and restating in their
entirety the following definitions in Section 1.01 in the correct alphabetical
order:
Board of Directors:
The term "Board of Directors" means the Board of Directors of the
Guarantor, or any committee of such Board of Directors, or any committee of
officers of the Guarantor, duly authorized to take any action hereunder.
Certified Resolutions or Board Resolutions:
The terms "Certified Resolutions" or "Board Resolutions" shall mean a
copy delivered to the Trustee of a resolution of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Guarantor, to have been
duly adopted and to be in full force and effect on the date of such
certification.
Officers' Certificate:
The term "Officers' Certificate" shall mean with respect to any Person,
a certificate signed by two officers of such Person, one of whom shall be the
principal financial officer, from among the Chairman of the Board, the
President, any Vice President or the Chief Financial Officer, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Trustee. Wherever this Indenture requires that an Officers' Certificate be
signed also by an accountant or other expert, such accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the employ
of the Company or the Guarantor. Each such certificate issued by the Company or
the Guarantor, as the case may be, shall include the statements provided for in
Section 15.05 if and to the extent required by the provisions of such Section.
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Opinion of Counsel:
The term "Opinion of Counsel" shall mean a written opinion of counsel,
who may be an employee of or counsel to the Company or the Guarantor, as
applicable. Each such opinion issued by the Company shall include the statements
provided for in Section 15.05 if and to the extent required by the provisions of
such Section.
Principal Property:
The term "Principal Property" means (A) any manufacturing plant located
in the continental United States, or manufacturing equipment located in any such
manufacturing plant (together with the land on which such plant is erected and
fixtures comprising a part thereof), owned or leased on the first date on which
a Debenture is authenticated by the Trustee or thereafter acquired or leased by
the Guarantor or any Restricted Subsidiary, other than (i) any property which
the Board of Directors determines is not of material importance to the total
business conducted, or assets owned, by the Guarantor and its Subsidiaries, as
an entirety; or (ii) any portion of any such property which the Board of
Directors determines not to be of material importance to the use or operation of
such property; and (B) any Shares or Indebtedness issued by any Restricted
Subsidiary. "Manufacturing plant" does not include any plant owned or leased
jointly or in common with one or more Persons other than the Guarantor and its
Restricted Subsidiaries in which the aggregate interest of the Guarantor and its
Restricted Subsidiaries does not exceed fifty percent (50%). "Manufacturing
equipment" means manufacturing equipment in such manufacturing plants used
directly in the production of the Guarantor's or any Restricted Subsidiary's
products and does not include office equipment, computer equipment, rolling
stock and other equipment not directly used in the production of the Guarantor's
or any Restricted Subsidiary's products.
Restricted Subsidiary:
The term "Restricted Subsidiary" means any Subsidiary substantially all
the property of which is located within the continental United States, other
than (i) a Subsidiary primarily engaged in financing, including, without
limitation, lending on the security of, purchasing or discounting (with or
without recourse) receivables, leases, obligations or other claims arising from
or in connection with the purchase or sale of products or services; (ii) a
Subsidiary primarily engaged in leasing or insurance; or (iii) a Subsidiary
primarily engaged in financing the Guarantor's or any Restricted Subsidiary's
operations outside the continental United States.
Sale and Leaseback Transaction:
The term "Sale and Leaseback Transaction" means any arrangement with
any Person providing for the leasing by the Guarantor or any Restricted
Subsidiary of any Principal Property of the Guarantor or any Restricted
Subsidiary whether such Principal Property is now owned or hereafter acquired
(except for leases for a term of not more than three years and except for leases
between the Guarantor and a Restricted Subsidiary
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or between Restricted Subsidiaries and except for leases of property executed
prior to, at the time of, or within one year after the later of, the
acquisition, the completion of construction, including any improvements or
alterations on real property, or the commencement of commercial operation of
such property), which Principal Property has been or is to be sold or
transferred by the Guarantor or such Restricted Subsidiary to such Person;
Secured Indebtedness:
The term "Secured Indebtedness" of any corporation shall mean
Indebtedness secured by any Lien upon property (including Shares or Indebtedness
issued by any Restricted Subsidiary) owned by the Guarantor or any Restricted
Subsidiary.
Shareholders' Equity:
The term "Shareholders' Equity" shall mean the total assets calculated
from a consolidated balance sheet of the Guarantor, prepared in accordance with
generally accepted accounting principles, less total liabilities shown on such
balance sheet.
Subsidiary:
The term "Subsidiary" means any corporation a majority of the Voting
Shares of which are at the time owned or controlled, directly or indirectly, by
the Guarantor or by one or more Subsidiaries and which is consolidated in the
Guarantor's latest consolidated financial statements filed with the Securities
and Exchange Commission or provided generally to the Guarantor's shareholders.
SECTION 2. The Indenture is hereby amended by adding to Section 1.01 the
following definitions in the correct alphabetical order:
Guarantee:
The term "Guarantee" means any of the unconditional and unsubordinated
guarantees by the Guarantor of the due and punctual payment of principal of and
premium, if any, on the Debentures and certain other obligations of the Company
pursuant to this Indenture when and as the same shall become due and payable,
whether at the stated maturity, by acceleration, call for redemption, upon a
repurchase date or otherwise in accordance with the terms of the Debentures and
this Indenture.
Guarantor:
The term "Guarantor" means ▇▇▇▇▇▇ Industries, Ltd., a Bermuda company,
until a successor replaces such party pursuant to Article Twelve of this
Indenture and, thereafter, shall mean such successor.
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SECTION 3. Section 5.05 of the Indenture is hereby amended and restated in its
entirety as follows:
Section 5.05. Secured Indebtedness of the Guarantor and its Restricted
Subsidiaries. So long as any of the Debentures remains outstanding, the
Guarantor will not, and the Guarantor will not permit any of its Restricted
Subsidiaries to, create, assume, guarantee or incur any Secured Indebtedness of
the Guarantor or any Restricted Subsidiary without in any such case effectively
providing concurrently with the creation, assumption, guarantee or incurrence of
any such Secured Indebtedness that the Debentures (together with, if the
Guarantor shall so determine, any other indebtedness of or guarantee by the
Guarantor or such Restricted Subsidiary ranking equally with the Debentures and
then existing or thereafter created) shall be secured equally and ratably with
(or, at the option of the Guarantor, prior to) such Secured Indebtedness but
only for so long and during such time as (i) such Secured Indebtedness shall
exist and be secured by a Lien; and (ii) the aggregate of all Secured
Indebtedness not secured solely by Liens described in clauses (a) through (h) of
this Section 5.05 and all Attributable Debt outstanding pursuant to, and not
excluded from this calculation by, Section 5.06 exceeds 10% of Shareholders'
Equity; provided, however, that the foregoing restrictions shall not apply to
Secured Indebtedness secured by:
(a) Liens on property (including any Shares or Indebtedness)
of any corporation existing at the time such corporation becomes a
Restricted Subsidiary or arising thereafter pursuant to contractual
commitments entered into prior to and not in contemplation of such
corporation's becoming a Restricted Subsidiary;
(b) Liens on property (including any Shares or Indebtedness)
existing at the time of acquisition of such property by the Guarantor
or a Restricted Subsidiary, or Liens to secure the payment of all or
any part of the purchase price of such property created upon the
acquisition of such property by the Guarantor or a Restricted
Subsidiary, or Liens to secure any Secured Indebtedness incurred by the
Guarantor or a Restricted Subsidiary prior to, at the time of, or
within one year after the later of the acquisition, the completion of
construction (including any improvements, alterations or repairs to
existing property) or the commencement of commercial operation of such
property, which Secured Indebtedness is incurred for the purpose of
financing all or any part of the purchase price thereof or construction
or improvements, alterations or repairs thereon; provided, however,
that in the case of any such acquisition, construction or improvement,
alteration or repair, the Lien shall not apply to any property
theretofore owned by the Guarantor or a Restricted Subsidiary, other
than, in the case of any such construction or improvement, any
theretofore unimproved real property or portion thereof on which the
property so constructed, or the improvement, is located and any other
property not then constituting a Principal Property;
(c) Liens securing Secured Indebtedness of any Restricted
Subsidiary owing to the Guarantor or to another Restricted Subsidiary;
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(d) Liens on property of a corporation existing at the time
such corporation is merged or consolidated with the Guarantor or a
Restricted Subsidiary or at the time of a sale, lease or other
disposition of the properties of a corporation as an entirety or
substantially as an entirety to the Guarantor or a Restricted
Subsidiary or arising thereafter pursuant to contractual commitments
entered into by such corporation prior to and not in contemplation of
such merger, consolidation, sale, lease or other disposition;
(e) Liens on property of the Guarantor or a Restricted
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, or in
favor of any trustee or mortgagee acting on behalf, or for the benefit
of, any of the foregoing, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
Indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject
to such Liens (including without limitation Liens incurred in
connection with pollution control, industrial revenue or similar
financings) and any other Liens incurred or assumed in connection with
the issuance of industrial revenue or private activity bonds the
interest on which is exempt from Federal income taxation pursuant to
Section 103(b) of the Internal Revenue Code of 1986, as amended;
(f) Liens existing on the first date on which a Debenture is
authenticated by the Trustee;
(g) Liens on any property (including any Shares or
Indebtedness) not constituting a Principal Property;
(h) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing clauses (a) to (g) inclusive; provided,
however, that the principal amount of Secured Indebtedness secured
thereby shall not exceed the principal amount of Secured Indebtedness
secured thereby at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited to all
or a part of the property which secured the Lien so extended, renewed
or replaced (plus improvements, alterations and repairs on or to such
property) and any other property not then constituting a Principal
Property.
Notwithstanding the foregoing provisions, the Guarantor and any one or
more Restricted Subsidiaries may create, assume, guarantee or incur Secured
Indebtedness which would otherwise be subject to the foregoing restrictions in
an aggregate amount which, together with (i) all other Secured Indebtedness of
the Guarantor and its Restricted Subsidiaries which would otherwise be subject
to the foregoing restrictions (not including Secured Indebtedness secured by
Liens permitted under clauses (a) through (h) above);
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and (ii) all Attributable Debt outstanding pursuant to, and not excluded from
this calculation by, Section 5.06, does not at the time exceed 10% of
Shareholders' Equity.
SECTION 4. Section 5.06 of the Indenture is hereby amended and restated in its
entirety as follows:
Section 5.06. Sale and Leaseback Transactions. The Guarantor
will not, and nor will it permit any Restricted Subsidiary to, enter
into any Sale and Leaseback Transaction unless (A) the sum of (i) the
Attributable Debt outstanding pursuant to such Sale and Leaseback
Transaction; (ii) all Attributable Debt outstanding pursuant to all
other Sale and Leaseback Transactions entered into by the Guarantor and
any Restricted Subsidiary after the date on which a Debenture is
authenticated by the Trustee; and (iii) the aggregate of all Secured
Indebtedness outstanding (computed without regard to the Secured
Indebtedness excluded from the operation of Section 5.05 pursuant to
clauses (a) through (h) thereof and further without regard to Secured
Indebtedness of the Guarantor or any Restricted Subsidiary if the
Debentures are secured equally and ratably with (or prior to) such
Secured Indebtedness) does not exceed 10% of Shareholders' Equity; or
(B) an amount equal to the greater of (i) the amount of the net
proceeds to the Guarantor or the Restricted Subsidiary entering into
such Sale and Leaseback Transaction; or (ii) the fair market value of
such property, as determined by the Board of Directors (in the case of
(i) or (ii), after repayment of, or otherwise taking into account, as
the case may be, the amount of any Secured Indebtedness secured by a
Lien encumbering such property which Secured Indebtedness existed
immediately prior to such Sale and Leaseback Transaction) is applied to
retirement of Funded Debt within one year after the consummation of
such Sale and Leaseback Transaction; provided, however, the covenant
contained in this Section 5.06 shall not apply to, and there shall be
excluded from Attributable Debt in any computation under Section 5.05
or this Section 5.06, Attributable Debt with respect to any Sale and
Leaseback Transaction if:
(1) the Sale and Leaseback Transaction is entered into in
connection with the issuance of industrial revenue or private activity
bonds the interest on which is exempt from Federal income taxation
pursuant to Section 103(b) of the Internal Revenue Code of 1986, as
amended;
(2) the Guarantor or a Restricted Subsidiary applies an amount
equal to the net proceeds (after repayment of any Secured Indebtedness
secured by a Lien encumbering such Principal Property which Secured
Indebtedness existed immediately before such Sale and Leaseback
Transaction) of the sale or transfer of the Principal Property leased
pursuant to such Sale and Leaseback Transaction to investment (whether
for acquisition, improvement, repair, alteration or construction costs)
in another Principal Property within one year prior or subsequent to
such sale or transfer;
(3) such Sale and Leaseback Transaction was entered into by a
corporation prior to the date on which such corporation became a
Restricted Subsidiary or arises thereafter pursuant to contractual
commitments entered into
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by such corporation prior to and not in contemplation of such
corporation's becoming a Restricted Subsidiary; or
(4) such Sale and Leaseback Transaction was entered into by a
corporation prior to the time such corporation was merged or
consolidated with the Guarantor or a Restricted Subsidiary or prior to
the time of a sale, lease or other disposition of the properties of
such corporation as an entirety or substantially as an entirety to the
Guarantor or a Restricted Subsidiary or arises thereafter pursuant to
contractual commitments entered into by such corporation prior to and
not in contemplation of such merger, consolidation, sale, lease or
other disposition.
SECTION 5. Section 5.07 of the Indenture is hereby amended and restated in its
entirety as follows:
Section 5.07. Waiver of Covenants. The Guarantor may omit in any
particular instance to comply with any covenant or condition set forth in
Section 5.05 or 5.06 hereof or provided in a respective Certified Resolution
delivered to the Trustee pursuant to Section 2.02(A) hereof or in any indenture
supplemental hereto with respect to the Debentures of any series, if before or
after the time for such compliance the Holders of a majority in aggregate
principal amount of the Debentures of such series at the time Outstanding shall,
by action of such Debentures holders as provided in Section 9.01, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Guarantor, and the duties
of the Trustee in respect of any such covenant or condition, shall remain in
full force and effect.
SECTION 6. Section 5.08 of the Indenture is hereby amended and restated in its
entirety as follows:
Section 5.08. Certificate to Trustee. The Company and the Guarantor
will each deliver to the Trustee within 120 days after the end of each fiscal
year of the Guarantor (which on the date hereof ends on December 31) ending
after the date any series of Debentures is first issued hereunder, an Officers'
Certificate (which need not contain the statements provided for in Section
15.05), stating whether or not to the best knowledge of the respective signer
thereof (i) the Company is in default in the performance and observance of the
terms, provisions and conditions of Sections 5.01 or 5.02 and any other covenant
of the Company; and (ii) the Guarantor is in default in the performance and
observance of the terms, provisions and conditions of Sections 5.05 or 5.06 and
any other covenant of the Guarantor; provided in a Certified Resolution
delivered to the Trustee pursuant to Section 2.02(A) hereof or an indenture
supplemental hereto, and if the Company or Guarantor shall be in default,
respectively specifying all such defaults and the nature and status thereof of
which they may have knowledge; provided, however, neither the Company nor the
Guarantor shall be obligated to make any such statement with respect to any
term, provisions or conditions specified in this Section 5.08 if such
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term, provision or condition, as the case may be, is applicable only to a series
of Debentures none of the Debentures of which are outstanding or with respect to
which series the Company has been discharged pursuant to Article Thirteen.
SECTION 7. Section 6.03 of the Indenture is hereby amended and restated in its
entirety as follows:
Section 6.03. Reports by the Company or the Guarantor. (a) The Company
or the Guarantor, as applicable, agrees to file with the Trustee, within thirty
days after the Company or the Guarantor, as applicable, is required to file the
same with the Securities and Exchange Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as said Commission may from time to time by rules and
regulations prescribe) which the Company or the Guarantor, as applicable, may be
required to file with said Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company or the Guarantor, as
applicable, is not required to file information, documents or reports pursuant
to either of such Sections, then to file with the Trustee and said Commission,
in accordance with rules and regulations prescribed from time to time by said
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company or the Guarantor, as applicable, agrees to file with
the Trustee and the Securities and Exchange Commission, in accordance with the
rules and regulations prescribed from time to time by said Commission, such
additional information, documents and reports with respect to compliance by the
Company or the Guarantor, as applicable, with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations.
(c) The Guarantor agrees to transmit by mail to all holders of
Debentures, as the names and addresses of such holders appear upon the Debenture
register, within thirty days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company or the Guarantor, as applicable, pursuant to subsections (a) and (b) of
this Section 6.03 as may be required by rules and regulations prescribed from
time to time by the Securities and Exchange Commission.
SECTION 8. Article Twelve of the Indenture is hereby amended by the addition of
Sections 12.03 and 12.04 as follows:
Section 12.03. Guarantor May Consolidate, Etc., Only on Certain Terms.
The Guarantor shall not consolidate with or merge into any other Person or
convey or transfer its properties and assets substantially as an entirety to any
Person, unless:
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(1) the Person formed by such consolidation or into which the
Guarantor is merged or the Person which acquired by conveyance or
transfer the properties and assets of the Guarantor substantially as an
entirety shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the Guarantor's guarantee of the due and punctual payment of
the principal of, premium, if any, and interest, if any, on all the
Debentures and the Guarantor's guarantee of the performance or
observance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have occurred and be
continuing; and
(3) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article Twelve and that all conditions
precedent herein provided for relating to such transaction have been
complied with; provided, however, the Opinion of Counsel shall not be
required to include any opinion with respect to the condition set forth
in paragraph (2) of this Section 12.03.
Section 12.04. Successor Guarantor Substituted. Upon any consolidation
or merger, or any conveyance or transfer of the properties and assets of the
Guarantor substantially as an entirety in accordance with Section 12.03, the
successor corporation formed by such consolidation or into which the Guarantor
is merged or to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Guarantor
under this Indenture with the same effect as if such successor corporation had
been named as the Guarantor herein; and in the event of any such conveyance or
transfer, the Guarantor (which term shall for this purpose mean the Person named
as the "Guarantor" in Section 1.01, or any successor corporation which shall
have theretofore become such in the manner prescribed in Section 12.03), shall
be discharged from all liability under this Indenture and the Guarantee and in
respect of the Debentures and may be dissolved and liquidated.
SECTION 9. The Indenture is hereby amended by adding a new Article Sixteen as
follows:
ARTICLE SIXTEEN
Guarantee
Section 16.01 Guarantee. Except as otherwise provided herein, the
Guarantor hereby fully and unconditionally guarantees to each Holder of a
Debenture authenticated and delivered by the Trustee, and to the Trustee on
behalf of such Holder, the due and punctual payment of the principal of,
premium, if any, and interest, if any, on the
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Debentures and all other obligations of the Company under this Indenture when
and as the same shall become due and payable, whether at the stated maturity, by
acceleration, call for redemption, upon a repurchase date or otherwise, in
accordance with the terms of the Debentures and of this Indenture. The Guarantor
hereby fully and unconditionally also guarantees to the Trustee the due and
punctual payment of all obligations of the Company to the Trustee under this
Indenture. In case of the failure of the Company punctually to make any such
payment, the Guarantor hereby agrees to cause such payment to be made punctually
when and as the same shall become due and payable, whether at the stated
maturity or by acceleration, call for redemption, upon a repurchase date or
otherwise, and as if such payment were made by the Company. The Guarantor agrees
that its obligations hereunder shall be absolute and unconditional, irrespective
of, and shall be unaffected by, the validity, regularity or enforceability of
the Debentures or this Indenture, the absence of any action to enforce the same
or any release (other than by operation of Article Thirteen), amendment, waiver
or indulgence granted to the Company or the Guarantor or any consent to
departure from any requirement of any other guarantee of all or any of the
Debentures or any other circumstances which might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor. The Guarantor hereby
waives the benefits of diligence, presentment, demand for payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other lien on any property subject thereto or
exhaust any right or take any action against the Company or any other Person or
any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to the Debentures or the Indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Guarantee
will not be discharged in respect of the Debentures except by complete
performance of the obligations contained in the Debentures and in such
Guarantee. The Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Debentures, to collect any principal, interest or
premium, if any, on the Debentures, or to enforce or exercise any other right or
remedy with respect to the Debentures, the Guarantor agrees to pay to the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The Guarantor shall be subrogated to all rights of the Holders of the
Debentures upon which its Guarantee is endorsed against the Company in respect
of any amounts paid by the Guarantor on account of the Debentures pursuant to
the provisions of its Guarantee or this Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payment arising out
of, or based upon, such right of subrogation until the principal of, premium, if
any, and interest, if any, on all Debentures issued hereunder shall have been
paid in full.
This Guarantee shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment for
the benefit of creditors
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or should a receiver or trustee be appointed for all or any part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any holder of
the Debentures, whether as a "voidable preference," "fraudulent transfer," or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Debentures shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
Any term or provision of this Guarantee to the contrary
notwithstanding, the aggregate amount of the obligations guaranteed hereunder
shall be reduced to the extent necessary to prevent this Guarantee from
violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
Section 16.02 Release of Guarantee. Notwithstanding anything in this
Article Sixteen to the contrary, concurrently with the payment in full of (i)
the principal of, premium, if any, and interest, if any, on the Debentures; and
(ii) all other obligations of the Company under this Indenture, the Guarantor
shall be released from and relieved of its obligations under this Article
Sixteen. Upon the delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that the transaction giving
rise to the release of this Guarantee was made by the Company in accordance with
the provisions of this Indenture and the Debentures, the Trustee shall execute
any documents reasonably required in order to evidence the release of the
Guarantor from its obligations under this Guarantee. If any of the obligations
to pay the principal of, premium, if any, and interest, if any, on the
Debentures and all other obligations of the Company are revived and reinstated
after the termination of this Guarantee, then all of the obligations of the
Guarantor under this Guarantee shall be revived and reinstated as if this
Guarantee had not been terminated until such time as the principal of, premium,
if any, and interest, if any, on the Debentures and all other obligations of the
Company under the Indenture are paid in full, and the Guarantor shall enter into
an amendment to this Guarantee, reasonably satisfactory to the Trustee,
evidencing such revival and reinstatement.
SECTION 10. This First Supplemental Indenture shall become effective as of the
Merger Date. In the event that the Merger does not occur or the Company
otherwise notifies the Trustee in writing that the Merger will not occur, this
First Supplemental Indenture shall automatically become null and void and
Company and Trustee shall continue to comply with the original Indenture. On or
promptly following the Merger Date, the Company shall furnish to the Trustee an
Officer's Certificate certifying that the Merger has occurred and that this
First Supplemental Indenture has become effective.
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SECTION 11. The Indenture, as supplemented and amended, is in all respects
ratified and confirmed, and the Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
SECTION 12. If and to the extent any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this
First Supplemental Indenture by any provision of the Trust Indenture Act of
1939, such required provision shall control.
SECTION 13. In case any provision in this First Supplemental Indenture or in the
Debentures of any series heretofore issued shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions (or of the other series of Debentures) shall not in any way be
affected or impaired thereby.
SECTION 14. This First Supplemental Indenture shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of the said State.
SECTION 15. Capitalized terms used in this First Supplemental Indenture that are
not otherwise defined herein that are defined in the Indenture shall remain as
set forth therein.
SECTION 16. This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original but such counterparts shall
together constitute but one and the same instrument.
SECTION 17. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this First Supplemental Indenture
or for or in respect of the recitals contained herein, all of which are made
solely by the Company and the Guarantor.
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IN WITNESS WHEREOF, the parties have caused this First Supplemental Indenture to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, as of the Execution Date.
COMPANY: GUARANTOR:
▇▇▇▇▇▇ INDUSTRIES, INC. ▇▇▇▇▇▇ INDUSTRIES, LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------- -----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇
------------------------------ ---------------------------------
Title: Vice President & Treasuer Title: Vice President & Treasurer
----------------------------- --------------------------------
By: /s/ D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: D. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Senior Vice President &
--------------------------------
Chief Financial Officer
--------------------------------
TRUSTEE:
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Assistant Vice President
-----------------------------