EXHIBIT 4.3
MTL INC.,
as Issuer,
the NEW GUARANTORS named herein,
as Guarantors
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 28, 1998
to
INDENTURE
Dated as of June 9,1998
between
MTL INC., as Issuer
the GUARANTORS named therein, as Guarantors
and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
up to $275,000,000
$100,000,000
10% Senior Subordinated Notes due 2006
$40,000,000
Floating Interest Rate Subordinated Term Securities ("FIRSTS")(SM)/*/ due 2006
________________________________________________________________________________
_______________________
*FIRSTS(SM) is a service xxxx of BT Xxxx. Xxxxx Incorporated
FIRST SUPPLEMENTAL INDENTURE, dated as of August 28, 1998, by and between
MTL Inc., a Florida corporation (the "Company"), Chemical Xxxxxx Corporation, a
Pennsylvania corporation ("Chemical Xxxxxx"), the subsidiaries of Chemical
Xxxxxx listed on the signature page hereof (the "CLC Subsidiaries" and, together
with Chemical Xxxxxx, the "New Guarantors"), and United States Trust Company of
New York, a New York banking corporation, as Trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the Trustee
an Indenture dated as of June 9, 1998 (the "Indenture"), providing for the
issuance of its 10% Senior Subordinated Notes due 2006 and Floating Interest
Rate Subordinated Term Securities ("FIRSTS")(SM) due 2006 (the "Initial Notes")
and, when and if issued as provided in the Registration Rights Agreement, Series
B Senior Subordinated Notes due 2006 and Series B Floating Interest Rate
Subordinated Term Securities due 2006 (the "Exchange Notes" and, together with
the Initial Notes, the "Securities"); and
WHEREAS, the Company, through its wholly-owned subsidiary, Palestra
Acquisition Corp., a Delaware corporation, Chemical Xxxxxx and the shareholders
of Chemical Xxxxxx have entered into an Agreement and Plan of Merger dated as of
June 23,1998, as amended, which contemplates the purchase by the Company of all
of the outstanding capital stock of Chemical Xxxxxx; and
WHEREAS, the Company desires to have Chemical Xxxxxx and the CLC
Subsidiaries become Restricted Subsidiaries under the Indenture; and
WHEREAS, domestic Restricted Subsidiaries are required to become Guarantors
pursuant to Section 4.18 of the Indenture prior to guaranteeing Indebtedness of
the Company; and
WHEREAS, each of Chemical Xxxxxx and the CLC Subsidiaries desires to become
a Guarantor by guaranteeing the obligations of the Company under the Indenture
in accordance with the terms thereof; and
WHEREAS, Chemical Xxxxxx and the CLC Subsidiaries have been duly authorized
by each of their respective Board of Directors to enter into, execute and
deliver this First Supplemental Indenture; and
NOW THEREFORE, for and in consideration of the premises and covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company, the New
Guarantors and the Trustee agree as follows:
------------------------
* FIRSTS(SM) is a service xxxx of BT Xxxx. Xxxxx Incorporated.
ADDITIONAL GUARANTORS
SECTION 1. Simultaneously with the execution of this First Supplemental
Indenture, each of the New Guarantors shall be deemed to be a "Guarantor" under
and as defined in the Indenture, shall assume all the obligations of a Guarantor
under the Securities and the Indenture as described in the Indenture, and
hereby, jointly and severally, unconditionally and irrevocably guarantees, as
principal obligor and not only as a surety, to each Holder of the Securities
the cash payments in United States dollars of principal of, premium, if any, and
interest on the Securities in the amounts and at the times when due and interest
on the overdue principal and (to the extent permitted by law) interest, if any,
on the Securities and all other obligations of the Company or the Guarantors to
the Holders or the Trustee under the Indenture or the Securities and all other
obligations shall be promptly paid in full or performed, all in accordance with
the terms of the Securities and the Indenture.
SECTION 2. Except as expressly supplemented by this First Supplemental
Indenture, the Indenture and the Securities issued thereunder are in all
respects ratified and confirmed and all of the rights, remedies, terms,
conditions, covenants and agreements of the Indenture and Securities issued
thereunder shall remain in full force and effect. Capitalized terms used herein
but not defined herein shall have the meaning provided in the Indenture.
SECTION 3. This First Supplemental Indenture is executed and shall
constitute an indenture supplemental to the Indenture and shall be construed in
connection with and as part of the Indenture. This First Supplemental Indenture
shall be governed by and construed in accordance with the laws of the
jurisdiction that governs the Indenture and its construction.
SECTION 4. This First Supplemental Indenture may be executed in any number
of counterparts, each of which shall be deemed to be an original for all
purposes; but such counterparts shall together be deemed to constitute but one
and the same instrument.
SECTION 5. Any and all notices, requests, certificates and other instrument
executed and delivered after the execution and delivery of this First
Supplemental Indenture may refer to the Indenture without making specific
reference to this First Supplemental Indenture, but nevertheless all such
references shall include this First Supplemental Indenture unless the context
otherwise requires.
SECTION 6. This First Supplemental Indenture shall be deemed to have become
effective upon the date first above written.
SECTION 7. In the event of a conflict between the terms of this First
Supplemental Indenture and the Indenture, this First Supplemental Indenture
shall control.
SECTION 8. 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
2
respect of the recitals contained herein, all of which recitals are made solely
by the Company and the New Guarantors.
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed, and their respective corporate seals, if any, to
be hereunto affixed and attested, all as of the day and year first above
written.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:________________________
Name:
Title:
CHEMICAL XXXXXX CORPORATION
By:______________________________________
Name:
Title:
CHEMICAL PROPERTIES, INC.
By:______________________________________
Name:
Title:
CAPACITY MANAGEMENT SYSTEMS, INC.
By:______________________________________
Name:
Title:
CORE LOGISTICS MANAGEMENT, INC.
By:______________________________________
Name:
Title:
ENVIROPOWER, INC.
By:______________________________________
Name:
Title:
3
XXXXXX AIR SERVICES, INC.
By:______________________________________
Name:
Title:
XXXXXXXXX WAY FUNDING CORP.
By:______________________________________
Name:
Title:
POWER PURCHASING, INC.
By:______________________________________
Name: :
Title:
AMERICAN TRANSINSURANCE
GROUP, INC.
By:______________________________________
Name:
Title:
CHEMICAL XXXXXX TANK LINES, INC.
By:______________________________________
Name:
Title:
FLEET TRANSPORT COMPANY, INC.
By:______________________________________
Name:
Title:
QUALA SYSTEMS, INC.
By:______________________________________
Name:
Title:
4
CLT SERVICES, INC.
By:______________________________________
Name:
Title:
QSI SERVICES, INC.
By:______________________________________
Name:
Title:
XXXXXX LOGISTICS, INC.
By:______________________________________
Name:
Title:
TRANSPLASTICS, INC.
By:______________________________________
Name:
Title:
MTL INC.,
as Issuer
By:______________________________________
Name:
Title:
5
OFFICERS' CERTIFICATE
FIRST SUPPLEMENTAL INDENTURE
The undersigned, Xxxxxxx X. X'Xxxxx, the President and Chief Executive
Officer, and Xxxxxx Xxxxx, the Secretary of MTL Inc. (the "Company"), are
-------
furnishing this Certificate in connection with the Company's execution and
delivery of the First Supplemental Indenture dated the date hereof (the "First
-----
Supplemental Indenture") by and among the Company, Chemical Xxxxxx Corporation,
----------------------
a Florida corporation, and the subsidiaries of Chemical Xxxxxx listed therein
and you, as Trustee (the "Trustee"). The First Supplemental Indenture amends
-------
the Company's existing indenture dated as of June 9, 1998 (the "Indenture")
---------
providing for the issuance of its 10% Senior Subordinated Notes due 2006 and
Floating Interest Rate Subordinated Term Securities due 2006 (the "Initial
Notes") and, when and if issued as provided in the Registration Rights
Agreement, Series B Senior Subordinated Notes due 2006 and Series B Floating
Interest Rate Subordinated Term Securities due 2006 (the "Exchange Notes" and,
together with the Initial Notes, the "Securities"). This letter is delivered to
you pursuant to Section 13.04 of the Indenture. Capitalized terms used herein
and not defined herein have the meanings given to such terms in the Indenture,
as amended.
We have reviewed Sections 4.18, 9.01, 9.06, 13.04 and 13.05 of the
Indenture, including each of the conditions and the definitions relating thereto
included in the Indenture, and have made such examinations and investigations
which, in our opinion, are reasonably necessary to enable us to express an
informed opinion regarding the matters set forth herein.
Based on the foregoing, we are of the opinion that all conditions precedent
required under the Indenture in connection with the Trustee's acceptance and
execution of the First Supplemental Indenture have been complied with.
SIGNATURES APPEAR ON NEXT PAGE
IN WITNESS WHEREOF, we have hereunto set our hands as of the 28th day of
August, 1998.
By:_______________________________________
Name: Xxxxxxx X. X'Xxxxx
Title: President and Chief
Executive Officer
By:_______________________________________
Name: Xxxxxx Xxxxx
Title: Xxxxxxxxx
0
Xxxxxx Xxxxxx Trust Company of New York, as Trustee
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust
Re: First Supplemental Indenture of MTL Inc.
----------------------------------------
Ladies and Gentlemen:
We have acted as counsel for MTL Inc., a Florida corporation (the
"Company"), Chemical Xxxxxx Corporation, a Pennsylvania corporation and a wholly
-------
owned subsidiary of the Company ("Chemical Xxxxxx"), and each of the Chemical
---------------
Xxxxxx subsidiaries listed on Annex A hereto (the "CLC Subsidiaries"), in
----------------
connection with the negotiation, execution and delivery of the First
Supplemental Indenture dated the date hereof (the "First Supplemental
------------------
Indenture") by and among the Company, Chemical Xxxxxx, the CLC Subsidiaries and
---------
you, as Trustee (the "Trustee"). The First Supplemental Indenture amends the
-------
Company's existing indenture dated as of June 9, 1998 (the "Indenture")
---------
providing for the issuance of its 10% Senior Subordinated Notes due 2006 and
Floating Interest Rate Subordinated Term Securities due 2006 (the "Initial
Notes") and, when and if issued as provided in the Registration Rights
Agreement, Series B Senior Subordinated Notes due 2006 and Series B Floating
Interest Rate Subordinated Term Securities due 2006 (the "Exchange Notes" and,
together with the Initial Notes, the "Securities"). This letter is delivered to
you pursuant to Section 13.04 of the Indenture. Capitalized terms used herein
without definition shall have the meanings ascribed thereto in the Indenture.
As counsel to the Company, we have reviewed Sections 4.18, 9.01, 9.06,
13.04 and 13.05 of the Indenture, including each of the conditions and the
definitions relating thereto included in the Indenture, and have made such
examinations and investigations which, in our opinion, are necessary to enable
us to express an option regarding the matters set forth herein.
Based on the foregoing, we are of the opinion that (i) the execution of the
First Supplemental Indenture is authorized or permitted by the Indenture and all
conditions required under the Indenture in connection with the Trustee's
acceptance and execution of the First Supplemental Indenture have been
satisfied, (ii) the First Supplemental Indenture complies in all material
respects to the Trust Indenture Act of 1939, as amended and in effect on the
date hereof and (iii) the First Supplemental Indenture has been duly authorized,
executed and delivered by Chemical Xxxxxx and the CLC Subsidiaries and
constitutes a legal, valid, binding and enforceable obligation of each of them.
In rendering the foregoing opinion, we express no opinion, either directly
or indirectly, as to laws other than the laws of the State of New York, the
Federal Laws of the United States of America and the General Corporation Law of
the State of Delaware.
This letter is provided to you solely in connection with the transactions
referred to herein. This letter may not be relied by you for any other purpose
or relied upon or furnished to any other person without, in each instance, our
prior written consent.
Very truly yours,
ANNEX A
Name of Subsidiary Foreign Jurisdiction Qualifications
------------------ -----------------------------------
1. Chemical Properties, Inc., LA, MD, MI, NC, NY, OH, SC, WV, WI
a Pennsylvania corporation
2. Capacity Management Systems, Inc., None
a Pennsylvania corporation
3. Core Logistics Management, Inc., None
a Delaware corporation
4. EnviroPower, Inc., NJ, PA, WV
a Delaware corporation
5. Xxxxxx Air Services, Inc., None
a Delaware corporation
6. Xxxxxxxxx Way Funding Corp., PA
a Delaware corporation
7. Power Purchasing, Inc., IL, OH, PA
a Delaware corporation
8. American Transinsurance Group, Inc., IL, PA, MO
a Delaware corporation
9. Chemical Xxxxxx Tank Lines, Inc., AL, AK, CA, CT, FL, GA, IL, IN, KY, LA,
a Delaware corporation MA, MD, MI, MO, NV, NH, NJ, NY, OH, OK,
OR, PA, RI, SC, TN, TX, VA, WA, WV, WI,
Ontario, Quebec
10. Fleet Transport Company, Inc., CA, GA, IL, IN, KY, LA, MD, MI, MO, NY,
a Delaware corporation NC, OH, PA, SC, TX
11. Quala Systems, Inc., CA, CT, GA, IL, KY, LA, MI, MO, NC, NJ,
a Delaware corporation OH, PA, SC, TX, WV
12. CLT Services, Inc., None
a Delaware corporation
13. Xxxxxx Logistics, Inc., None
a Delaware corporation
14. Transplastics, Inc. AL, CA, CT, FL, GA, IL, IN, KY, LA, ME,
a Delaware corporation MD, MA, MI, MN, MS, MO, NH, NJ, NY, NC,
OH, PA, RI, VT, WV, WI
15. QSI Services, Inc., None
a Delaware corporation
GUARANTEE
---------
For value received, the undersigned hereby unconditionally guarantees, as
principal obligor and not only as a surety, to the Holder of this Security the
cash payments in United States dollars of principal of, premium, if any, and
interest on this Security in the amounts and at the times when due and interest
on the overdue principal, premium, if any, and interest and Additional Interest,
if any, of this Security, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture (as defined below) or the
Securities, to the Holder of this Security and the Trustee, all in accordance
with and subject to the terms and limitations of this Security, Article Eleven
of the Indenture and this Guarantee. This Guarantee will become effective in
accordance with Article Eleven of the Indenture and its terms shall be evidenced
therein. The validity and enforceability of any Guarantee shall not be affected
by the fact that it is not affixed to any particular Security.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture dated as of June 9, 1998, among MTL Inc., a
Florida corporation, as issuer (the "Company"), the Guarantors named therein and
United States Trust Company of New York, as trustee (the "Trustee"), as amended
or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Securities and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article Eleven of the Indenture and reference is hereby made to the Indenture
for the precise terms of this Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS
OF LAW. The undersigned Guarantors hereby agree 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 Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be duly
executed.
Date: August 28, 1998
CHEMICAL XXXXXX CORPORATION
By:__________________________________
Name:
Title:
CHEMICAL PROPERTIES, INC.
By:__________________________________
Name:
Title:
CAPACITY MANAGEMENT SYSTEMS, INC.
By:__________________________________
Name:
Title:
CORE LOGISTICS MANAGEMENT, INC.
By:__________________________________
Name:
Title:
ENVIROPOWER, INC.
By:__________________________________
Name:
Title:
XXXXXX AIR SERVICES, INC.
By:__________________________________
Name:
Title:
XXXXXXXXX WAY FUNDING CORP.
By:__________________________________
Name:
Title:
POWER PURCHASING, INC.
By:__________________________________
Name:
Title:
AMERICAN TRANSINSURANCE
GROUP, INC.
By:__________________________________
Name:
Title:
CHEMICAL XXXXXX TANK LINES, INC.
By:__________________________________
Name:
Title:
FLEET TRANSPORT COMPANY, INC.
By:__________________________________
Name:
Title:
QUALA SYSTEMS, INC.
By:__________________________________
Name:
Title:
CLT SERVICES, INC.
By:__________________________________
Name:
Title:
QSI SERVICES, INC.
By:__________________________________
Name:
Title:
XXXXXX LOGISTICS, INC.
By:__________________________________
Name:
Title:
TRANSPLASTICS, INC.
By:__________________________________
Name:
Title:
