EXHIBIT 4.2(e)
------------------------------------
U.S. INDUSTRIES, INC.
USI GLOBAL CORP.
USI AMERICAN HOLDINGS, INC.
AS ISSUERS
USI ATLANTIC CORP.
AS GUARANTOR
AND
XXXXX FARGO BANK MINNESOTA, N.A.
AS TRUSTEE
------------------------------------
FOURTH SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 25, 2002
TO
INDENTURE
DATED AS OF
DECEMBER 12, 1996
FOURTH SUPPLEMENTAL INDENTURE ("FOURTH SUPPLEMENTAL INDENTURE"), dated
as of November 25, 2002, among U.S. Industries, Inc., a Delaware corporation
("USI"), USI Global Corp., a Delaware corporation ("USIGC"), and USI American
Holdings, Inc., a Delaware Corporation ("USIAH" and together with USI and USIGC,
the "ISSUERS"), as Issuers, USI Atlantic Corp., a Delaware corporation, as
Guarantor (the "GUARANTOR"), and Xxxxx Fargo Bank Minnesota, N.A. (successor in
interest to PNC Bank, National Association), a national banking association
incorporated and existing under the laws of the United States of America, as
Trustee (the "TRUSTEE").
Capitalized terms used herein and not otherwise defined herein have the
meaning assigned to those terms in the Indenture.
WITNESSETH
WHEREAS, the Issuers, the Guarantor and the Trustee executed and
delivered an Indenture, dated as of December 12, 1996, as amended by the First
Supplemental Indenture dated as of June 11, 1998, the Second Supplemental
Indenture dated as of April 30, 1999 and the Third Supplemental Indenture dated
as of March 27, 2001 (the "INDENTURE"), to provide for the issuance of the 7
1/4% Senior Notes due 2006 of the Issuers (the "2006 NOTES") and the related
Guaranty of the Guarantor;
WHEREAS, Section 902 of the Indenture permits the Issuers and the
Guarantor, when authorized by or pursuant to a Board Resolution, and the
Trustee, to enter into one or more indentures supplemental to the Indenture, for
the purpose of changing or eliminating certain of the provisions of the
Indenture or modifying the rights of the Holders of Securities including Section
1007 of the Indenture upon receipt of the consents of not less than a majority
in principal amount of all Outstanding Securities (the "REQUIRED CONSENTS");
WHEREAS, the Required Consents have been delivered in order to amend
the Indenture as set forth in this Fourth Supplemental Indenture;
WHEREAS, the board of directors of each of the Issuers and the
Guarantor has duly adopted resolutions authorizing it to execute and deliver
this Fourth Supplemental Indenture; and
WHEREAS, the Issuers and the Guarantor have requested that the Trustee
execute and deliver this Fourth Supplemental Indenture pursuant to Section 902
of the Indenture, and all requirements necessary to make this Fourth
Supplemental Indenture a valid instrument in accordance with its terms have been
performed and the execution and delivery of this Fourth Supplemental Indenture
have been duly authorized in all respects by each of the Issuers and the
Guarantor.
1
NOW, THEREFORE, the Issuers and the Guarantor covenant and agree with
the Trustee as follows:
ARTICLE 1
AMENDMENTS
Subject to Section 2.01 of this Fourth Supplemental Indenture,
Section 1.01 . DEFINITIONS. Section 101 of the Indenture is hereby
amended by inserting the following definitions in the appropriate alphabetical
order:
"AVAILABLE CASH" means cash on deposit in the Notes Escrow Account to
the extent that the proposed use of such cash hereunder is not the subject of an
injunction, stay or other legally effective restraining order.
"NOTES ESCROW ACCOUNT" shall have the meaning ascribed to it in the
Amended and Restated Amendment, Restatement, General Provisions and
Intercreditor Agreement dated as of September 23, 2002, (the "MASTER AGREEMENT")
among U.S. Industries, Inc., USI Global Corp., USI American Holdings, Inc., USI
Atlantic Corp., Rexair Holdings, Inc., Rexair Inc., and the other USI
subsidiaries party thereto, Wilmington Trust Company, Xxxxx X. Xxxxxxxx, Bank of
America, N.A., and the lenders party thereto or in any amendment thereof and to
the extent the Issuers refinance their credit facilities, any similar collateral
account that has been or may be established for the benefit of the Holders of
Securities in order to comply with Section 1007 of the Indenture and terms of
such credit facilities.
Section 1.02. LIMITATION ON LIENS. Section 1007 of the Indenture is
hereby amended by inserting at the end of that Section the following:
"Notwithstanding clause (x) of the first sentence of this Section 1007:
(i) from time to time and at any time, the Issuers may use Available
Cash allocable to the tendering Holders of Securities deposited in the Notes
Escrow Account for the benefit of such Holders to pay consideration in respect
of the Offer made by the Issuers pursuant to the Offer to Purchase and Consent
Solicitation Statement dated October 24, 2002 (the "OFFER"), or any other tender
offer or exchange offer made from time to time; PROVIDED that any such tender
offer or exchange offer shall be made available to all Holders of Securities;
(ii) from time to time and at any time, the Issuers may use Available
Cash deposited in the Notes Escrow Account to pay the redemption price in any
redemption permitted hereby; and
2
(iii) if less than 100% of Holders tender or exchange their Securities
pursuant to any tender offer or exchange offer, the failure of such Holders to
receive Available Cash allocated to them in the Notes Escrow Account shall not
be a breach of this Section 1007 so long as the PRO RATA amount of Available
Cash allocable to such Holders remains in the Notes Escrow Account and continues
to secure the Securities.
No Holder of any Securities shall have any right to claim a breach of
this Section 1007 so long as the Issuers comply with the terms of this Section
1007, as amended by the Fourth Supplemental Indenture."
Section 1.03. OFFER TO PURCHASE. Article Ten is hereby amended by
inserting as Section 1014 the following:
"Section 1014. OFFER TO PURCHASE. Not later than 90 days after the date
on which the Available Cash in the Notes Escrow Account allocable to the
Securities equals or exceeds 10% of the outstanding aggregate principal amount
of such Securities, the Issuers shall make an offer to purchase the principal
amount of outstanding Securities equal to such Available Cash in the Notes
Escrow Account allocable to such Securities on a PRO RATA basis and at a
purchase price equal to 100% of the principal amount to be purchased plus
accrued and unpaid interest to, but not including, the applicable purchase date.
In making such offer to purchase, the Issuers will be required to comply with
all applicable laws including Section 14(e) of the Exchange Act and Rule 14e-1
thereunder."
ARTICLE 2
MISCELLANEOUS
Section 2.01. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution and
delivery of this Fourth Supplemental Indenture by each of the Issuers, the
Guarantor and the Trustee, the Indenture shall be supplemented in accordance
herewith, and this Fourth Supplemental Indenture shall form a part of the
Indenture for all purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture shall be bound
thereby; PROVIDED, HOWEVER, that anything herein to the contrary
notwithstanding, Article 1 hereof shall become operative at the time USI accepts
for payment the Securities pursuant to the terms of the Offer.
Section 2.02. CONFIRMATION OF INDENTURE. The Indenture, as supplemented
and amended by this Fourth Supplemental Indenture, is in all respects ratified
and confirmed, and the Indenture, this Fourth Supplemental Indenture and all
indentures supplemental thereto shall be read, taken and construed as one and
the same instrument.
3
Section 2.03. CONCERNING THE TRUSTEE. The Trustee assumes no duties,
responsibilities or liabilities by reason of this Fourth Supplemental Indenture
other that as set forth in the Indenture.
Section 2.04. GOVERNING LAW. This Fourth 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
Fourth 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 Fourth 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.
4
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested as of the date first written above.
U.S. INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
USI GLOBAL CORP.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
USI AMERICAN HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
USI ATLANTIC CORP.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
General Counsel and Secretary
5
XXXXX FARGO BANK OF
MINNESOTA, N.A.
(Successor in interest to PNC Bank, National
Association)
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
6
