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EXHIBIT 4.2
SPECIALTY EQUIPMENT COMPANIES, INC.,
Co-Issuer
and
SPECIALTY EQUIPMENT MANUFACTURING CORPORATION,
Co-Issuer
TO
XXXXXX TRUST AND SAVINGS BANK,
Trustee
Supplemental Indenture
Dated as of January 31, 1998
$185,000,000
11-3/8% Senior Subordinated Notes due 2003
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SUPPLEMENTAL INDENTURE, dated as of January 31, 1998 (herein called this
"Supplemental Indenture") among SPECIALTY EQUIPMENT COMPANIES, INC., a
corporation duly organized under the laws of the State of Delaware, as one
Co-Issuer (herein called "Specialty"), having its principal office at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, SPECIALTY EQUIPMENT
MANUFACTURING CORPORATION, a corporation duly organized under the laws of the
State of Delaware, as the other Co-Issuer (herein called "Manufacturing"),
having its principal office at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, and XXXXXX TRUST AND SAVINGS BANK, a banking corporation duly
organized and existing under the laws of the State of Illinois, as Trustee
(herein called the "Trustee").
RECITALS
Specialty and the Trustee are parties to that certain Indenture, dated as
of December 1, 1993 (herein called the "Indenture"), governing Specialty's
11-3/8% Senior Subordinated Notes due 2003 (herein called the "Securities")
issued thereunder.
Specialty, in accordance to the terms of a Plan of Internal Restructuring
duly adopted by Specialty's Board of Directors and Stockholders, has formed
Manufacturing as a wholly owned subsidiary and intends to effect the transfer to
Manufacturing of substantially all of the assets and related liabilities of
Specialty's operating, manufacturing, sales and marketing assets and certain
assets related to other operations (but not Specialty's intellectual property
rights, other than pursuant to licenses of such rights by Specialty to
Manufacturing).
Pursuant to Section 8.01 of the Indenture, Specialty is prohibited from
selling, assigning, conveying, transferring, leasing or otherwise disposing of
substantially all of its properties and assets to any Person (whether in a
single transaction or a series of related transactions) unless it meets certain
conditions set forth in that Section of the Indenture, including, without
limitation, that the Person which acquires substantially all of the properties
and assets of Specialty and its Subsidiaries on a Consolidated basis assume by a
supplemental indenture in a form reasonably satisfactory to the Trustee, all the
obligations of Specialty under the Securities and the Indenture, and that the
Indenture remain in full force and effect.
All things necessary having been done to make this Supplemental Indenture a
valid agreement of Specialty and Manufacturing in accordance with its terms, and
the Trustee agreeing that this form is reasonably satisfactory to it:
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually covenanted and
agreed, for equal and proportionate benefit of the Holders of the Securities, as
follows:
ARTICLE I
SUPPLEMENT; DEFINITIONS
SECTION 1.1 Supplement of Indenture. This Supplemental Indenture
supplements and forms a part of the Indenture and is entered into by the Trustee
without the consent of any Holders pursuant to Section 801 and Section 901 of
the Indenture to cause Manufacturing to assume all the obligations of Specialty
under the Securities and the Indenture as a co-obligor jointly and severally
liable with Specialty, and to confirm that the Indenture remains in full force
and effect.
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SECTION 1.2 Definitions. For all purposes of this Supplemental Indenture,
except as otherwise provided herein or unless the context requires, capitalized
terms that are defined in the Indenture have the same respective meanings
herein.
ARTICLE II
ASSUMPTION OF OBLIGATIONS
SECTION 2.1 Assumption of Obligations. For value received, Manufacturing
unconditionally assumes all of the obligations of Specialty under the Securities
and the Indenture as a co-obligor, jointly and severally liable with Specialty
therefor.
SECTION 2.2 No Discharge of Specialty. Notwithstanding the provisions of
Section 8.02 of the Indenture, the assumption of the obligations of Specialty
under the Securities and the Indenture by Manufacturing shall not discharge
Specialty from any of its obligations and covenants under the Indenture and the
Securities, but rather, Specialty shall remain obligated with respect thereto as
a co-obligor, jointly and severally with Manufacturing.
SECTION 2.3 Joint and Several Obligations. Each of Specialty and
Manufacturing shall have joint and several liability with respect to all
obligations under the Indenture and the Securities. Each of Specialty and
Manufacturing hereby acknowledges that the Indenture and the Securities are the
independent and several obligation of each of them and may be enforced against
either of them separately, whether or not enforcement of any right or remedy
hereunder has been sought against any other party hereto. Each of Specialty and
Manufacturing hereby expressly waives, with respect to any of the amounts owing
under the Indenture or any Security, diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that any party exhaust
any right, power or remedy or proceed against any other party under the
Indenture, the Securities or any other supplemental indenture related thereto,
or security for any of such obligations.
SECTION 2.4 Amendment of the Definition of Company. Upon the effectiveness
of this Supplemental Indenture, the definition of "Company" pursuant to Section
101 of the Indenture shall mean Specialty and Manufacturing, individually and
collectively, or where the context so indicates, on a Consolidated basis, until
a successor Person shall have become such pursuant to the applicable provisions
of the Indenture, and thereafter "Company" shall mean such successor Person.
ARTICLE III
EFFECT UPON COVENANTS
SECTION 3.1 Change of Control. The parties acknowledge and agree that for
the purpose of Section 1017 of the Indenture the ownership of more than 50% of
the total voting power of all classes of the Voting Capital of Manufacturing by
Specialty shall not constitute a Change of Control.
SECTION 3.2 Limitations on Restricted Payments. The parties acknowledge and
agree that for the purposes of Section 1009 of the Indenture, the term
"Company's Capital Stock" shall relate solely to the Capital Stock of Specialty
so long as Manufacturing remains a Wholly Owned Subsidiary of Specialty; and
provided further that any restriction upon the payment of dividends by
Manufacturing to Specialty pursuant hereto shall not constitute a default
pursuant to Section 1011 of the Indenture.
ARTICLE IV
SUBORDINATION
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SECTION 4.1 Subordination. It is acknowledged and agreed that for the
purposes of the Indenture and the Securities that the term "Senior Indebtedness"
includes Indebtedness of both Specialty and Manufacturing to extent such
Indebtedness otherwise falls within the definition thereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Effect of Supplemental Indenture. This Supplemental Indenture
supplements and forms a part of the Indenture and modifies the Indenture as
provided herein; and every Holder of Securities heretofore or hereafter
authenticated and delivered under the Indenture shall be bound hereby. Except as
otherwise modified or supplemented hereby or by any previous supplemental
indentures, the Indenture remains in full force and effect.
SECTION 5.2 Reference in Securities to Supplemental Indenture. Securities
authenticated and delivered after the execution of this Supplemental Indenture
may bear a notation in form approved by the Trustee as to any matter provided
for herein.
SECTION 5.3 Conflict with Trust Indenture Act. If and to the extent that
any provision hereof limits, qualifies or conflicts with any provision of the
TIA or another provision which is required or deemed to be included in this
Supplemental Indenture by any of the provisions of the TIA, the provision or
requirement of the TIA shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the TIA that may be so modified
or excluded, such provision of the TIA shall be deemed to apply to this
Supplemental Indenture as so modified or to be excluded, as the case may be.
SECTION 5.4 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 5.5 Successors and Assigns. All covenants and agreements in this
Supplemental Indenture by Specialty and Manufacturing shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 5.6 Separability Clause. In case any provision of this 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 5.7 Benefits of Indenture. Nothing in this Supplemental Indenture,
express or implied, shall give to any Person, other than the parties hereto, any
Paying Agent, any Securities Registrar and their successors hereunder and the
Holders and, with respect to any provisions hereof relating to the right of
holders of Senior Indebtedness, the holders of Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Supplemental
Indenture. The Trustee shall not be deemed to owe any fiduciary duty to any
holder of Senior Indebtedness or any holder of any other obligation of Specialty
Manufacturing, other than to Holders of the Securities. It is expressly
acknowledged that the provisions of Article IV hereof and any other provisions
(hereof or of the Indenture) relating to the subordination of the Securities or
the rights of the holders of Senior Indebtedness, are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior
Indebtedness.
SECTION 5.8 Governing Law. This Supplemental Indenture shall be governed by
and construed in accordance with the law of the State of New York. This
Supplemental Indenture is subject to the provisions of the TIA that are required
to be part hereof and shall, to the extent applicable, be governed by such
provisions.
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SECTION 5.9 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of either Specialty or Manufacturing or any other obligor
on the Securities shall not have any liability for any obligations of the
Specialty or Manufacturing or such obligor, as the case may be, under the
Securities or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each Holder by accepting
any of the Securities waives and releases all such liability.
SECTION 5.10 Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts together constitute but one and the same Supplemental
Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the day and year first above written.
SPECIALTY EQUIPMENT COMPANIES, INC.
By:_______________________________
Name:
Title:
SPECIALTY EQUIPMENT MANUFACTURING
CORPORATION
By:_______________________________
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK, AS TRUSTEE
By:_______________________________
Name:
Title:
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TABLE OF CONTENTS
