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EXHIBIT 4.3
EXECUTION COPY
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SYNTHETIC INDUSTRIES, INC.,
Issuer,
$140,000,000
12 3/4% SENIOR SUBORDINATED DEBENTURES
DUE 2002
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 11,1997
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UNITED STATES TRUST COMPANY OF NEW YORK,
Trustee
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First Supplemental Indenture to Indenture, dated as of December 14, 1992,
between Synthetic Industries. Inc., as issuer, and United States Trust Company
of New York, as trustee.
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FIRST SUPPLEMENTAL INDENTURE, dated as of February 11, 1997, between
SYNTHETIC INDUSTRIES, INC., a Delaware corporation (the "Company"), and UNITED
STATES TRUST COMPANY OF NEW YORK, a New York corporation, as Trustee, under the
Indenture hereinafter mentioned (in such capacity, the "Trustee").
WHEREAS, the Company and the Trustee have heretofore executed and
delivered to each other an Indenture, dated as of December 14, 1992 (the
"Indenture"), pursuant to which the Company issued $140,000,000 principal
amount of its 12 3/4% Senior Subordinated Debentures due 2002 (the
"Securities"); and
WHEREAS. the Company has commenced an offer to purchase for cash any and
all of the outstanding Securities and a solicitation of consents to amend the
Indenture (the "Purchase Offer and Consent Solicitation"), upon the terms and
conditions set forth in the Offer to Purchase and Consent Solicitation dated
January 8, 1997, as amended (the "Offer to Purchase"); and
WHEREAS. Section 902 of the Indenture provides, among other things that
the Company, when authorized by a resolution of the Board of Directors of the
Company, and the Trustee may amend the Indenture in certain respects with the
consent of the Holders of at least a majority in principal amount of the
Securities then outstanding; and
WHEREAS, the execution and delivery of this First Supplemental Indenture
has been authorized by a resolution of the Board of Directors of the Company;
and
WHEREAS. the Company has delivered to the Trustee the written consents of
the Holders of at least a majority in principal amount of the outstanding
Securities to the amendments hereinafter set forth; and
WHEREAS. pursuant to Section 903 of the Indenture, the Trustee has
requested, and the Company has furnished the Trustee with, an Officers'
Certificate and an Opinion of Counsel stating that the execution of this First
Supplemental Indenture is authorized or permitted by the Indenture; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained and for other valuable consideration, each party hereto agrees
for the equal and ratable benefit of the Holders of the Securities:
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ARTICLE I
Definitions
SECTION 1.1 DEFINITIONS.
The definitions set forth or incorporated by reference in Article One of
the Indenture shall be applicable to this First Supplemental Indenture,
including the recitals hereto, as fully and to the same extent as if set forth
herein, except as otherwise expressly provided herein.
SECTION 1.2 AMENDMENT TO ARTICLE ONE.
Article One of the Indenture is hereby amended to add the following term
and definition:
"Purchase Offer" means the tender offer for Securities made by the
Company, pursuant to an Offer to Purchase and Consent Solicitation, dated
January 8, 1997, a supplement thereto dated January 23, 1997 and the
related Consent and Letter of Transmittal circulated therewith.
SECTION 1.3 AMENDMENTS TO DEFINITIONS.
Article One of the Indenture is hereby amended to delete in their entirety
the following terms and their respective definitions:
(a) "Acquired Indebtedness
(b) "Asset Sale"
(c) "Change in Control"
(d) "Change in Control Triggering Event"
(e) "Consolidated Adjusted Net Income (Loss)"
(f) "Consolidated Fixed Charge Coverage Ratio"
(g) "Consolidated Interest Expense"
(h) "Consolidated Net Worth"
(i) "Consolidated Non-cash Charges"
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(j) "Consolidated Tax Expense"
(k) "Designated Senior Indebtedness"
(l) "Guaranteed Debt"
(m) "Investment"
(n) "Net Cash Proceeds"
(o) "Pari Passu Indebtedness"
(p) "Permitted Indebtedness"
(q) "Permitted Investment"
(r) "Permitted Joint Venture"
(s) "Permitted Subsidiary Indebtedness"
(t) "Rating Decline"
(u) "Specified Pari Passu Indebtedness"
(v) "Specified Subordinated Indebtedness
(w) "Subordinated Indebtedness"
ARTICLE II
EFFECTIVENESS
SECTION 2.1 EFFECTIVE DATE.
(a) This First Supplemental Indenture shall be and become effective on
the Acceptance Date (as defined in the Offer to Purchase) pursuant to the terms
of the Purchase Offer and Consent Solicitation.
(b) Notwithstanding the terms of Section 2.1(a) hereof, this First
Supplemental Indenture shall cease to be effective in the event that the
Company does not pay for Securities accepted for purchase pursuant to the
Purchase Offer in the manner contemplated by the Purchase Offer.
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ARTICLE III
ENDORSEMENT AND CHANGE OF FORM OF SECURITIES
SECTION 3.1. LEGEND.
Any Securities authenticated and delivered after the close of business on
the date of this First Supplemental Indenture becomes effective in substitution
for Securities then outstanding and all Securities presented or delivered to
the Trustee on and after that date for such purpose shall (unless textually
revised as provided in Section 3.2 hereof) be stamped, imprinted or otherwise
legended by the Trustee, with a notation as follows:
Effective as of February 11. 1997, certain restrictive covenants of
the Company, certain Events of Default and certain remedies of Holders
have been eliminated or limited, as provided in the First Supplemental
Indenture, dated as of February 11, 1997. Reference is hereby made to said
First Supplemental Indenture, copies of which are on file with the
Trustee, for a description of the amendments made therein.
ARTICLE IV
AMENDMENTS
SECTION 4.1 AMENDMENT TO ARTICLE FIVE.
Section 501 of the Indenture, captioned "Events of Default." is hereby
amended to read in its entirety as follows:
SECTION 501 EVENTS OF DEFAULT.
"Event of Default." wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and
whether or not it shall be occasioned or prohibited by the provisions of
Article Thirteen or be voluntary or involuntary or be effected by the
operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administration or governmental
body):
(a) default in the payment of any interest on any Security when it
becomes due and payable, and continuance of such default for a period of
30 days, whether or not such payment is prohibited by Article 13 of this
Indenture; or
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(b) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity, whether or not such payment is
prohibited by Article 13 of this Indenture; or
(c) the entry of a decree or order by a court having jurisdiction in
the premises (A) for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under the Federal
Bankruptcy Code or any other federal, state or foreign bankruptcy,
insolvency, reorganization or similar law or (B) adjudging the Company or
any Significant Subsidiary bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under the Federal Bankruptcy
Code or any other similar federal, state or foreign law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any Significant Subsidiary or of any
substantial part of any of their properties, or ordering the winding up or
liquidation of any of their affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(d) the institution by the Company or any Significant Subsidiary of
a voluntary case or proceeding under the Federal Bankruptcy Code or any
other similar federal, state or foreign law or any other case or
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
the Company or any Significant Subsidiary to the entry of a decree or
order for relief in respect of the Company or any Significant Subsidiary
in any involuntary case or proceeding under the Federal Bankruptcy Code or
any other similar federal, state or foreign law or to the institution of
bankruptcy or insolvency proceedings against the Company or any
Significant Subsidiary, or the filing by the Company or any Significant
Subsidiary of a petition or answer or consent seeking reorganization or
relief under the Federal Bankruptcy Code or any other similar federal,
state or foreign law, or the consent by it to the filing of any such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or other similar
official) of any of the Company or any Significant Subsidiary or of any
substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due or the taking of
corporate action by the Company or any Significant Subsidiary in
furtherance of any such action; or
(e) any holder of at least $5,000,000 in aggregate principal amount
of secured Senior Indebtedness of the Company or secured Indebtedness of
any Significant Subsidiary after a default under such secured Indebtedness
shall commence proceedings, or take any action (other than in respect of
pre-foreclosure remedies under such secured Indebtedness or any Lien in
respect thereof), which proceedings or action such holder shall be
entitled to commence pursuant to the terms of the agreement under which
such Indebtedness is outstanding, and which
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proceedings or other action shall have remained unstayed for 10
consecutive days, to retain in satisfaction of such secured Indebtedness
or to collect, seize, dispose of or apply in satisfaction of such secured
Indebtedness, assets of the Company or any Subsidiary having a Fair Market
Value in excess of $5,000,000, individually or in the aggregate.
SECTION 4.2 AMENDMENT TO ARTICLE EIGHT.
Section 801 of the Indenture, captioned "Company May Consolidate, Etc.
Only on Certain Terms," is hereby deleted in its entirety.
SECTION 4.3 AMENDMENTS TO ARTICLE TEN.
Article Ten of the Indenture is hereby amended as follows:
(a) Section 1004 of the Indenture, captioned "Corporate Existence,"
is hereby deleted in its entirety.
(b) Section 1005 of the Indenture, captioned "Payment of Taxes and
Other Claims," is hereby deleted in its entirety.
(c) Section 1006 of the Indenture, captioned "Maintenance of
Properties," is hereby deleted in its entirety.
(d) Section 1007 of the Indenture, captioned "Limitation on
Indebtedness," is hereby deleted in its entirety.
(e) Section 1008 of the Indenture, captioned "Limitation on
Restricted Payments," is hereby deleted in its entirety.
(f) Section 1009 of the Indenture, captioned "Limitation on
Transactions with Affiliates," is hereby deleted in its entirety.
(g) Section 1010 of the Indenture, captioned "Limitation on Liens
Securing Indebtedness," is hereby deleted in its entirety.
(h) Section 1011 of the Indenture, captioned "Limitation on Other
Senior Subordinated Indebtedness," is hereby deleted in its entirety.
(i) Section 1013 of the Indenture, captioned "Restrictions on
Preferred Stock of Subsidiaries," is hereby deleted in its entirety.
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(j) Section 1014 of the Indenture, captioned "Limitation on
Dividends and Other Payment Restrictions Affecting Subsidiaries," is hereby
deleted in its entirety.
(k) Section 1016 of the Indenture, captioned "Limitations on
Issuances of Guarantees of Pari Passu Indebtedness or Subordinated
Indebtedness," is hereby deleted in its entirety.
(l) Section 1017 of the Indenture, captioned "Statement as to
Compliance: Notice of Default; Provision of Financial Statements," is hereby
amended to read in its entirety as follows:
SECTION 1017 NOTICE OF DEFAULT.
(a) If a Default has occurred and is continuing, or if the Trustee,
any Holder or the trustee for or the holder of any other evidence of
Indebtedness of the Company (other than Indebtedness in the aggregate
principal amount of less than $5,000,000) gives any notice or takes any
other action with respect to a claimed default, the Company shall deliver
to the Trustee an Officers' Certificate specifying such Default, notice or
other action and the effort to remedy same, within 5 Business Days after
its occurrence.
(m) Section 1012 of the Indenture, captioned "Purchase of Securities
Upon a Change in Control Triggering Event" is hereby deleted in its entirety
for each holder of Debentures, and all successors in interest to such holder,
that consented to the deletion of such Section in connection with the Purchase
Offer, but remains as written in full force and effect for any holder that did
not so consent.
(n) Section 1015 of the Indenture, captioned "Disposition of
Proceeds of Asset Sales" is hereby deleted in its entirety for each holder of
Debentures, and all successors in interest to such holder, that consented to
the deletion of such Section in connection with the Purchase Offer, but remains
as written in full force and effect for any holder that did not so consent.
(o) Section 1018 of the Indenture, captioned "Waiver of Certain
Covenants" is hereby deleted in its entirety for each holder of Debentures, and
all successors in interest to such holder, that consented to the deletion of
such Section in connection with the Purchase Offer, but remains as written in
full force and effect for any holder that did not so consent.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 BINDING AGREEMENT; FIRST SUPPLEMENTAL INDENTURE CONTROLS.
This First Supplemental Indenture is a supplemental indenture pursuant to
Section 902 of the Indenture. Upon execution and delivery of this First
Supplemental Indenture, the terms and conditions of this First Supplemental
Indenture shall be part of the terms and conditions of the Indenture for all
and any purposes, shall bind all non-consenting Holders to the extent permitted
by Section 902 of the Indenture and all the terms and conditions of both shall
be read together as though they constitute one instrument, except that in case
of conflict the provisions of this First Supplemental Indenture will control.
SECTION 5.2 TERMS AND PROVISIONS IN FULL FORCE AND EFFECT.
Except as they may have been amended and supplemented by this First
Supplemental Indenture, each and every term and provision of the Indenture
remains in full force and effect.
SECTION 5.3 COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
SECTION 5.4 TRUSTEE ACCEPTS THE TRUSTS.
The Trustee accepts the trusts created by the Indenture, as supplemented by
this First Supplemental Indenture, and agrees to perform the same upon the
terms and conditions in the Indenture, as supplemented by this First
Supplemental Indenture.
SECTION 5.5 GOVERNING LAW.
This First Supplemental Indenture and the Securities shall be governed by
and construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of law principles thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the date and year first
above written.
SYNTHETIC INDUSTRIES, INC.
By:
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Name: ▇▇▇▇▇▇▇ Chill
Title: President and Chief Executive
Officer
UNITED STATES TRUST COMPANY
OF NEW YORK
By:
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
