Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of June 11, 1998 (this "First
Supplemental Indenture"), among U.S. Industries, Inc. (f/k/a USI, Inc.), a
Delaware corporation ("New USI"), and USI American Holdings, Inc., a Delaware
corporation ("USIAH"), as Issuers, USI Atlantic Corp. (f/k/a U.S. Industries,
Inc.), a Delaware corporation, as Guarantor (the "Guarantor"), and PNC Bank,
National Association, as Trustee (the "Trustee"). Capitalized terms used herein
without definition have the meanings assigned to such terms in the Indenture (as
defined below).
W I T N E S S E T H:
WHEREAS, on the date hereof, pursuant to an Agreement and Plan of
Merger, dated as of February 16, 1998, as amended, among the Guarantor, New USI,
Xxxx Industries, Inc. ("Xxxx") and certain subsidiaries of New USI, each of the
Guarantor and Xxxx became a direct wholly-owned subsidiary of New USI and USIAH
remained a direct wholly-owned subsidiary of the Guarantor;
WHEREAS, USIAH, the Guarantor and the Trustee executed and delivered
an Indenture, dated as of December 12, 1996 (the "Indenture"), to provide for
the issuance of the 7 1/4% Senior Notes due December 1, 2006 of USIAH (the
"Securities");
WHEREAS, Section 901 of the Indenture permits USIAH and the
Guarantor, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, to enter into one or more indentures supplemental to the
Indenture, in form and substance satisfactory to the Trustee, to make provisions
with respect to matters or questions arising under the Indenture which do not
materially adversely affect the interests of the Holders of the Securities;
WHEREAS, New USI desires to assume, jointly and severally, with
USIAH, all obligations of the Issuer under the Indenture, including, without
limitation, the due and punctual payment of the principal of, premium, if any,
and interest on, and the Tax Redemption Price and Additional Amounts, if any,
with respect to the Securities when due;
WHEREAS, such assumption of obligations by New USI will not in any
manner release USIAH or the Guarantor from their respective obligations under
the Indenture; and
NYFS11...:\95\78595\0012\1860\SUP5228N.10A
WHEREAS, USIAH and the Guarantor have requested that the Trustee
execute and deliver this First Supplemental Indenture pursuant to Section 901 of
the Indenture, and all requirements necessary to make this First Supplemental
Indenture a valid instrument in accordance with its terms have been performed
and the execution and delivery of this First Supplemental Indenture have been
duly authorized in all respects by each of New USI, USIAH and the Guarantor.
NOW, THEREFORE, New USI, USIAH and the Guarantor covenant and agree
with the Trustee as follows:
ARTICLE I
ASSUMPTION AND AMENDMENTS
SECTION 1.01. Assumption. New USI hereby fully, irrevocably and
unconditionally assumes, jointly and severally with USIAH, all obligations of
the Issuer under the Indenture and the Securities, including, without
limitation, the due and punctual payment of the principal of, premium, if any,
and interest on, and the Tax Redemption Price and Additional Amounts, if any,
with respect to the Securities in accordance with the terms of the Securities
and the Indenture.
SECTION 1.02. Ranking. The obligations of New USI under Section 1.01
hereto will be unsecured senior obligations of, and will rank pari passu with
all other existing and future unsecured and unsubordinated indebtedness and
senior in right of payment to all subordinated indebtedness of, New USI.
SECTION 1.03. Provision of Financial Statements. All references to
the "Issuer" in Section 1011 of the Indenture shall refer to New USI (but not
USIAH) and the last sentence of such Section 1011 shall be deleted in its
entirety and replaced with the following sentence:
"If the Parent Guarantor or USI American Holdings, Inc. is required
to make filings with the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act (or any successor provision thereto), the
Parent Guarantor or USI American Holdings, Inc., as applicable, will
make such filings in the manner required under the Exchange Act and
the rules and regulations of the Commission."
2
SECTION 1.04. Limitation and Restricted Payments. All references to
the "Issuer" in Section 1010 of the Indenture shall refer to USIAH (but not New
USI) and all references to a "Restricted Subsidiary" in such Section 1010 shall
refer to Restricted Subsidiaries of USIAH.
SECTION 1.05. Definitions.
(a) Section 101 of the Indenture is hereby amended as follows:
(i) the definition of "Consolidated Net Tangible Assets" is hereby
amended to delete "the Parent Guarantor" and to substitute
"U.S. Industries, Inc. (f/k/a USI, Inc.)" therefor; and
(ii) clause (ii) of the definition of "Unrestricted Subsidiary" is
hereby amended to delete "the Parent Guarantor" and to
substitute "U.S. Industries, Inc. (f/k/a USI, Inc.)" therefor
(b) Except as otherwise provided in this Supplemental Indenture, all
references to the "Issuer" in the Indenture and the Securities shall apply to
each of New USI and USIAH, jointly and severally.
(c) For the avoidance of doubt, except as otherwise provided in this
Supplemental Indenture, all references to "U.S. Industries, Inc." in the
Indenture and the Securities shall refer to "USI Atlantic Corp. (f/k/a U.S.
Industries, Inc.)."
ARTICLE II
MISCELLANEOUS
SECTION 2.02. Confirmation of Indenture. The Indenture, as
supplemented and amended by this First Supplemental Indenture, is in all
respects ratified and confirmed, and the Indenture, this First Supplemental
Indenture and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 2.03. Concerning the Trustee. The Trustee assumes no duties,
responsibilities or liabilities by reason of this First Supplemental Indenture
other than as set forth in the Indenture.
3
SECTION 2.04. Governing Law. THIS FIRST SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES
THEREOF.
SECTION 2.05. Separability. In case any provision contained in this
First Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 2.06. Counterparts. 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.
[SIGNATURES BEGIN ON THE NEXT PAGE]
4
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, as of the day and year first above written.
U.S. INDUSTRIES, INC. (F/K/A USI, INC.)
By: /s/ Xxxxxx X. XxxXxxx
------------------------------------------------
Name: Xxxxxx X. XxxXxxx
Title: Senior Vice President
USI AMERICAN HOLDINGS, INC.
By: /s/ Xxxxxx X. XxxXxxx
------------------------------------------------
Name: Xxxxxx X. XxxXxxx
Title: Senior Vice President
USI ATLANTIC CORP. (F/K/A U.S. INDUSTRIES, INC.)
By: /s/ Xxxxxx X. XxxXxxx
------------------------------------------------
Name: Xxxxxx X. XxxXxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx Xxxxx
------------------------------------------------
Name: Xxxxxx Xxxxx
Title: Vice President
5
