EXHIBIT 4.3
EXECUTION COPY
SUPPLEMENTAL INDENTURE
TO THE INDENTURE
AEARO COMPANY I
as Issuer
AND
THE SUBSIDIARY GUARANTORS FROM TIME TO TIME PARTY HERETO,
AND
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
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SUPPLEMENTAL INDENTURE
Dated as of March 13, 2006
to
Indenture
Dated as of April 7, 2004
8 1/4% Senior Subordinated Notes due 2012
SUPPLEMENTAL INDENTURE
THIS SUPPLEMENTAL INDENTURE, dated as of March 13, 2006 (the
"Supplemental Indenture"), is among Aearo Company I, a Delaware corporation (the
"Company"), the Guarantors from time to time party hereto (the "Guarantors") and
X.X. Xxxxxx Trust Company, National Association, as trustee (the "Trustee").
WHEREAS, the Company, the Guarantors and the Trustee have heretofore
executed and delivered that certain Indenture dated as of April 7, 2004 (the
"Indenture"), as amended and supplemented, pursuant to which the Company
authorized the issuance of its 8 1/4% Senior Subordinated Notes due 2012 (the
"Notes");
WHEREAS, the Company issued $175,000,000 aggregate principal amount
of the Notes;
WHEREAS, Section 9.02 of the Indenture provides that the Indenture may
be amended with the consent of the Holders of a majority in aggregate principal
amount of the Notes then outstanding (subject to certain exceptions);
WHEREAS, the Company and the Guarantors desire and have requested the
Trustee to join with them in entering into this Supplemental Indenture for the
purpose of amending the Indenture in certain respects as permitted by Section
9.02 of the Indenture;
WHEREAS, the execution and delivery of this Supplemental Indenture has
been authorized by Board of Directors of the Company and the Guarantors;
WHEREAS, (1) the Company has received the consent of the Holders of a
majority in aggregate principal amount of the outstanding Notes and has
satisfied all other conditions precedent, if any, provided under the Indenture
to enable the Company, the Guarantors and the Trustee to enter into this
Supplemental Indenture, all as certified by an Officers' Certificate, delivered
to the Trustee simultaneously with the execution and delivery of this
Supplemental Indenture as contemplated by Section 7.02 of the Indenture, and (2)
the Company has delivered to the Trustee simultaneously with the execution and
delivery of this Supplemental Indenture an Opinion of Counsel relating to this
Supplemental Indenture as contemplated by Section 7.02 of the Indenture.
NOW, THEREFORE, in consideration of the above premises, each party
hereby agrees, for the benefit of the others and for the equal and ratable
benefit of the Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DELETION OF DEFINITIONS AND RELATED REFERENCES. Section
1.01 of the Indenture is hereby amended to delete in its entirety all terms and
their respective definitions for which all references are eliminated in the
Indenture as a result of the amendments set forth in Article II of this
Supplemental Indenture.
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ARTICLE II
AMENDMENTS TO INDENTURE
SECTION 2.1 AMENDMENTS TO THE INDENTURE. The Indenture is hereby
amended by deleting the following sections of the Indenture and all references
thereto in the Indenture in their entirety:
Section 4.03 Limitation on Restricted Payments
Section 4.04 Limitation on Indebtedness
Section 4.05 Corporate Existence
Section 4.06 Payment of Taxes and Other Claims
Section 4.07 Maintenance of Properties and Insurance
Section 4.08(b) Compliance Certificate; Notice of Default
Section 4.09 Compliance with Laws
Section 4.10 SEC Reports
Section 4.12 Limitation on Transactions with Affiliates
Section 4.13 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries
Section 4.14 Limitation on Liens
Section 4.15 Change of Control
Section 4.16 Limitation on Asset Sales
Section 4.17 Limitation on Preferred Stock of Subsidiaries
Section 4.18 Limitation on Incurrence of Senior Subordinated Debt
Section 4.19 Limitation of Guarantees by Restricted Subsidiaries
Section 5.01 first paragraph (b), (c) Merger, Consolidation and Sale of Assets
Section 6.01(3), (4), (5) Events of Default
Section 8.01(d)(3), (4), (7), (8) Legal Defeasance and Covenant Defeasance
ARTICLE III
MISCELLANEOUS PROVISIONS
SECTION 3.1 DEFINED TERMS. For all purposes of this Supplemental
Indenture, except as otherwise defined or unless the context otherwise requires,
terms used in capitalized form in this Supplemental Indenture and defined in the
Indenture have the meanings specified in the Indenture.
SECTION 3.2 INDENTURE. Except as amended hereby, the Indenture is in
all respects ratified and confirmed and all the terms thereof shall remain in
full force and effect. This Supplemental Indenture shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered under the Indenture shall be bound by the Indenture
as amended hereby. In the case of conflict between the Indenture and this
Supplemental Indenture, the provisions of this Supplemental Indenture shall
control.
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SECTION 3.3 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS SUPPLEMENTAL INDENTURE.
SECTION 3.4 SUCCESSORS. All agreements of the Company, the Guarantors
and the Trustee in this Supplemental Indenture and the Notes shall bind their
respective successors.
SECTION 3.5 DUPLICATE ORIGINALS. All parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together shall represent the same agreement.
SECTION 3.6 SEVERABILITY. In case any one or more of the provisions in
this Supplemental Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 3.7 TRUSTEE DISCLAIMER. The Trustee accepts the amendment of
the Indenture effected by this Supplemental Indenture and agrees to execute the
trust created by the Indenture as hereby amended, but on the terms and
conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee, which
terms and provisions shall in like manner define and limit its liabilities and
responsibilities in the performance of the trust created by the Indenture as
hereby amended, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to
any of the recitals or statements contained herein, all of which recitals or
statements are made solely by the Company, and the Trustee makes no
representation with respect to any such matters. Additionally, the Trustee makes
no representations as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 3.8 EFFECTIVENESS: OPERATIVENESS
(a) This Supplemental Indenture will become effective and binding upon
the Company, the Guarantors, the Trustee and the Holders as of the date on which
the Opinion of Counsel and Officers' Certificate (each as defined in the
Indenture) required by Section 7.02 of the Indenture is delivered to the
Trustee; and
(b) The provisions set forth in Article I and Article II of this
Supplemental Indenture will become operative upon and simultaneously with, and
shall have no force or effect prior to, the delivery by the Company to the
Trustee of an Officers' Certificate to the effect that the Company has accepted
for purchase, and has delivered payment in respect of, at least a majority in
aggregate principal amount of the outstanding Notes.
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SECTION 3.9 ENDORSEMENT AND CHANGE OF FORM OF NOTES. Any Notes
authenticated and delivered after the close of business on the date that this
Supplemental Indenture becomes effective may be stamped, imprinted or otherwise
legended by the Trustee, with a notation as follows:
"Effective as of March 13, 2006, substantially all of the
restrictive covenants of the Company, certain of the Events of
Default provisions and certain defeasance provisions have been
eliminated, as provided in the Supplemental Indenture, dated
as of March 13, 2006. Reference is hereby made to said
Supplemental Indenture, copies of which are on file with the
Trustee, for a description of the amendments made therein."
SECTION 3.10 EFFECT OF HEADINGS. The headings of the Articles and Sections of
this Supplemental Indenture have been inserted for convenience of reference
only, are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provision hereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed as of the day and year written above.
AEARO COMPANY I
as the Issuer
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President,
CFO and Secretary
CABOT SAFETY INTERMEDIATE CORPORATION
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President - Finance,
Treasurer, Secretary
X.X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
