EXHIBIT 4.12
EXECUTION VERSION
THIRD SUPPLEMENTAL INDENTURE
among
EAGLEPICHER INCORPORATED
f/k/a Eagle-Picher Industries Inc.,
as successor to E-P Acquisition, Inc.
and
THE GUARANTORS PARTY HERETO
and
THE BANK OF NEW YORK,
as Trustee
dated as of
July 22, 2003
supplementing that certain
INDENTURE
dated as of February 24, 1998
as amended on February 24, 1998 and December 14, 2001
regarding
$220,000,000
9 3/8% Senior Subordinated Notes due March 1, 2008
of
E-P Acquisition, Inc.
THIS THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of July 22, 2003, is among EaglePicher Incorporated, an Ohio
corporation (f/k/a Eagle-Picher Industries, Inc.), as successor to E-P
Acquisitions, Inc. (the "Company"), the Guarantors party hereto and The Bank of
New York, a New York banking corporation, as trustee, (the "Trustee") under the
Indenture (as defined below). Capitalized terms used herein and not defined
herein will have the meaning ascribed to them in the Indenture.
W I T N E S S E T H
WHEREAS, the Company and the Guarantors have heretofore
executed and delivered to the Trustee an indenture, dated as of February 24,
1998, providing for the issuance of an aggregate amount of $220,000,000 of 9?%
Senior Subordinated Notes due 2008 (the "Notes"), as previously supplemented by
the First Supplemental Indenture dated as of February 24, 1998 and the Second
Supplemental Indenture dated as of December 14, 2001 (together, the
"Indenture");
WHEREAS, the Company has made an offer to the Holders of the
Notes to purchase any and all of such Notes for cash upon the terms and subject
to the conditions set forth in the Offer to Purchase and Consent Solicitation
Statement dated July 9, 2003 and the Consent and Letter of Transmittal
(together, the "Offer to Purchase");
WHEREAS, pursuant to the terms of the Offer to Purchase,
Holders that tender Notes in accordance with the terms of the Offer to Purchase
are deemed to have consented to certain amendments to the Indenture that would
permanently eliminate or modify certain restrictive covenants, event of default
provisions and other provisions of the Indenture (the "Proposed Amendments"), as
set forth herein;
WHEREAS, pursuant to Article 9 of the Indenture, the Trustee
is authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Company having been duly authorized by a Board
Resolution, and the Trustee (i) having received an Opinion of Counsel pursuant
to Sections 9.06, 12.04 and 12.05 of the Indenture stating that the conditions
precedent provided for in the Indenture have been complied with and (ii) having
received an Officers' Certificate of the Company pursuant to Sections 9.06,
12.04 and 12.05 of the Indenture certifying that the conditions precedent
provided for in the Indenture have been complied with, are authorized to execute
and deliver this Supplemental Indenture pursuant to Article 9 of the Indenture;
WHEREAS, all of the conditions and requirements necessary to
make this Supplemental Indenture, when duly executed and delivered, a valid and
binding agreement, enforceable in accordance with its terms (subject to becoming
effective as provided in paragraph 3 below), have been performed and fulfilled;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Company, the
1 THIRD SUPPLEMENTAL INDENTURE
Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein
without definitions will have the meanings assigned to them in the Indenture.
2. AMENDMENTS TO THE INDENTURE. Subject to Sections 3, 9
and 10 hereof, the Indenture is hereby amended as follows:
(i) All definitions set forth in Section 1.01 of the
Indenture and all references throughout the Indenture
that relate to defined terms used solely in covenants
or sections deleted hereby, including references to
section headings, are deleted in their entirety and
the following provision is substituted in their
place: "Intentionally omitted."
(ii) The Section entitled "Mandatory Offers," set forth in
Section 3.08 of the Indenture, is deleted in its
entirety and the following provision is substituted
in its place: "Intentionally omitted."
(iii) The covenant entitled "Reports," set forth in Section
4.02 of the Indenture, is deleted in its entirety and
the following provision is substituted in its place:
"Intentionally omitted."
(iv) The covenant entitled "Compliance Certificate," set
forth in Section 4.03 of the Indenture, is deleted in
its entirety and the following provision is
substituted in its place: "Intentionally omitted."
(v) The covenant entitled "Stay, Extension and Usury
Laws," set forth in Section 4.04 of the Indenture, is
deleted in its entirety and the following provision
is substituted in its place: "Intentionally omitted."
(vi) The covenant entitled "Limitation on Restricted
Payments," set forth in Section 4.05 of the
Indenture, is deleted in its entirety and the
following provision is substituted in its place:
"Intentionally omitted."
(vii) The covenant entitled "Corporate Existence," set
forth in Section 4.06 of the Indenture, is deleted in
its entirety and the following provision is
substituted in its place: "Intentionally omitted."
(viii) The covenant entitled "Limitations on Additional
Indebtedness," set forth in Section 4.07 of the
Indenture, is deleted in its entirety and the
following provision is substituted in its place:
"Intentionally omitted."
(ix) The covenant entitled "Limitation on the Issuance of
Capital Stock of Restricted Subsidiaries," set forth
in Section 4.08 of the Indenture, is
2 THIRD SUPPLEMENTAL INDENTURE
deleted in its entirety and the following provision
is substituted in its place: "Intentionally omitted."
(x) The covenant entitled "Limitations on Layering Debt,"
set forth in Section 4.09 of the Indenture, is
deleted in its entirety and the following provision
is substituted in its place: "Intentionally omitted."
(xi) The covenant entitled "Limitation on Transactions
with Affiliates," set forth in Section 4.10 of the
Indenture, is deleted in its entirety and the
following provision is substituted in its place:
"Intentionally omitted."
(xii) The covenant entitled "Limitations on Liens," set
forth in Section 4.11 of the Indenture, is deleted in
its entirety and the following provision is
substituted in its place: "Intentionally omitted."
(xiii) The covenant entitled "Taxes," set forth in Section
4.12 of the Indenture, is deleted in its entirety and
the following provision is substituted in its place:
"Intentionally omitted."
(xiv) The covenant entitled "Limitations on Restrictions on
Distributions from Restricted Subsidiaries," set
forth in Section 4.13 of the Indenture, is deleted in
its entirety and the following provision is
substituted in its place: "Intentionally omitted."
(xv) The covenant entitled "Change of Control," set forth
in Section 4.15 of the Indenture, is deleted in it
entirety and the following provision is substituted
in its place: "Intentionally omitted."
(xvi) The covenant entitled "Limitations on Asset Sales,"
set forth in Section 4.16 of the Indenture, is
deleted in its entirety and the following provision
is substituted in its place: "Intentionally omitted."
(xvii) The covenant entitled "Additional Note Guarantees,"
set forth in Section 4.17 of the Indenture, is
deleted in its entirety and the following provision
is substituted in its place: "Intentionally omitted."
(xviii) Subsection (a) of the Section entitled "Limitation on
Mergers and Certain Other Transactions," set forth in
Section 5.01 of the Indenture, is amended and
restated in its entirety as follows: "(a) The Company
will not, in a single transaction or a series of
related transactions, (i) consolidate or merge with
or into (other than a merger with a Wholly-Owned
Restricted Subsidiary solely for the purpose of
changing the Company's jurisdiction of incorporation
to another State of the United States), or sell,
lease, transfer, convey or otherwise dispose of or
assign all or substantially all of the assets of the
Company or the Company and its Subsidiaries (taken as
a whole), or assign any of its obligations under the
Notes and this Indenture, to any
3 THIRD SUPPLEMENTAL INDENTURE
Person or (ii) adopt a Plan of Liquidation unless, in
either case: (w) the Person formed by or surviving
such consolidation or merger (if other than the
Company) or to which such sale, lease, conveyance or
other disposition or assignment shall be made (or, in
the case of a Plan of Liquidation, any Person to
which assets are transferred) (collectively, the
"SUCCESSOR"), is a corporation organized and existing
under the laws of any State of the United States of
America or the District of Columbia, and the
Successor assumes by supplemental indenture in a form
satisfactory to the Trustee all of the obligations of
the Company under the Notes and this Indenture; (x)
immediately prior to and immediately after giving
effect to such transaction and the assumption of the
obligations as set forth in clause (w) above and the
incurrence of any Indebtedness to be incurred in
connection therewith, no Default or Event of Default
shall have occurred and be continuing; and (y) each
Subsidiary Guarantor, unless it is the other party to
the transactions described above, shall have by
amendment to its guarantee confirmed that its
guarantee of the Notes shall apply to the obligations
of the Company or the Successor under the Notes and
this Indenture. For purposes of this covenant, any
Indebtedness of the Successor which was not
Indebtedness of the Company immediately prior to the
transaction shall be deemed to have been incurred in
connection with such transaction."
(xix) Subsections (a)(iii) through (a)(vi) of the Section
entitled "Events of Default," set forth in Section
6.01 of the Indenture, are deleted in their entirety
and the following provision is substituted in their
place: "Sub-sections (iii)-(vi) intentionally
omitted."
(xx) The Section entitled "Senior Subordinated Debt of
Guarantor," set forth in Section 11.04 of the
Indenture, is deleted in its entirety and the
following provision is substituted in its place:
"Intentionally omitted."
3. EFFECTIVENESS AND OPERATIVENESS. This Supplemental
Indenture will become effective upon the signing hereof and operative only upon
the acceptance by the Company of, and payment for, Notes that are properly
tendered and not withdrawn pursuant to the Offer to Purchase. If the Notes that
are properly tendered and not withdrawn pursuant to the Offer to Purchase are
not accepted for payment and are not paid, this Supplemental Indenture will not
become operative and will forthwith cease to be effective. The restrictive
covenants and other provisions affected by this Supplemental Indenture will be
revived and reinstated as though this Supplemental Indenture had not been
executed.
4. GOVERNING LAW. This Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York and for all
purposes shall be governed by and construed in accordance with the laws of the
State of New York, without regard to the conflict of laws provisions thereof.
4 THIRD SUPPLEMENTAL INDENTURE
5. COUNTERPARTS. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy will be an original, but
all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are
for convenience only and will not affect the construction hereof.
7. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The Trustee
accepts the amendments of the Indenture effected by this Supplemental Indenture
and agrees to execute the trust created by the Indenture as hereby amended, but
only upon 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 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 makes no representation as to (i) the proper authorization hereof by the
Company and the Guarantors by corporate action or otherwise, (ii) the due
execution hereof by the Company and the Guarantors or (iii) the validity,
accuracy or sufficiency of this Supplemental Indenture. The recitals contained
herein shall be taken as the statements of the Company and the Trustee assumes
no responsibility for their correctness.
8. LEGEND. Pursuant to the Indenture, all Notes
authenticated and delivered after the date hereof in exchange for or in lieu of
any Notes theretofore issued will have imprinted or stamped thereon a legend in
substantially the following form:
"The Indenture has been amended pursuant to a Third
Supplemental Indenture dated as of July 22, 2003, copies of
which are available from the Company or the Trustee."
9. CONFLICT OF PROVISIONS. If and to the extent that any
provision of this Supplemental Indenture limits, qualifies or conflicts with
another provision included in this Supplemental Indenture or in the Indenture
that is required to be included in this Supplemental Indenture or the Indenture
by any of the provisions of Sections 310 to 318, inclusive, of the Trust
Indenture Act of 1939, as amended (the "TIA"), such required provision of the
TIA will control.
10. RATIFICATION AND CONFIRMATION OF INDENTURE. Except as
hereby expressly supplemented and amended, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect.
[Signatures begin on next page]
5 THIRD SUPPLEMENTAL INDENTURE
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
EAGLEPICHER INCORPORATED
By: /s/ Thomas R. Pilholski
_________________________________________________________
Name: Thomas R. Pilholski
_______________________________________________________
Title: Sr. Vice President and CFO
______________________________________________________
DAISY PARTS, INC.
By: /s/ Thomas R. Pilholski
_________________________________________________________
Name: Thomas R. Pilholski
_______________________________________________________
Title: Sr. Vice President and CFO
______________________________________________________
EAGLEPICHER DEVELOPMENT COMPANY, INC.
By: /s/ Thomas R. Pilholski
_________________________________________________________
Name: Thomas R. Pilholski
_______________________________________________________
Title: Sr. Vice President and CFO
______________________________________________________
EAGLEPICHER HOLDINGS, INC.
By: /s/ Thomas R. Pilholski
_________________________________________________________
Name: Thomas R. Pilholski
_______________________________________________________
Title: Sr. Vice President and CFO
______________________________________________________
EAGLEPICHER FAR EAST, INC.
By: /s/ Thomas R. Pilholski
_________________________________________________________
Name: Thomas R. Pilholski
_______________________________________________________
Title: Sr. Vice President and CFO
______________________________________________________
EAGLEPICHER FILTRATION & MINERALS, INC.
By: /s/ Thomas R. Pilholski
_________________________________________________________
Name: Thomas R. Pilholski
_______________________________________________________
Title: Sr. Vice President and CFO
______________________________________________________
THIRD SUPPLEMENTAL INDENTURE
EAGLEPICHER TECHNOLOGIES, INC.
By: /s/ Bradley J. Waters
________________________________________________________
Name: Bradley J. Waters
________________________________________________________
Title: Vice President and Chief Financial Officer
________________________________________________________
HILLSDALE TOOL & MANUFACTURING CO.
By: /s/ Thomas R. Pilholski
________________________________________________________
Name: Thomas R. Pilholski
________________________________________________________
Title: Sr. Vice President and CFO
________________________________________________________
EPMR CORPORATION
By: /s/ Thomas R. Pilholski
________________________________________________________
Name: Thomas R. Pilholski
________________________________________________________
Title: Sr. Vice President and CFO
________________________________________________________
CARPENTER ENTERPRISES LIMITED
By: /s/ Thomas R. Pilholski
________________________________________________________
Name: Thomas R. Pilholski
________________________________________________________
Title: Sr. Vice President and CFO
________________________________________________________
THE BANK OF NEW YORK
as Trustee
By: /s/ Paul J. Schmalzel
________________________________________________________
Name: Paul J. Schmalzel
________________________________________________________
Title: Vice President
________________________________________________________
THIRD SUPPLEMENTAL INDENTURE