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BUILDING MATERIALS CORPORATION OF AMERICA
8 5/8% Senior Notes due 2006
and
Series B 8 5/8% Senior Notes due 2006
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INDENTURE
Dated as of December 9, 1996
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THE BANK OF NEW YORK
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Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
----------- -----------------
310(a)(1)-------------------------------------------- 7.10
(a)(2)-------------------------------------------- 7.10
(a)(3)-------------------------------------------- N.A.
(a)(4)-------------------------------------------- N.A.
(a)(5)-------------------------------------------- 7.08
(b)----------------------------------------------- 7.08; 7.10; 10.02
(c)----------------------------------------------- N.A.
311(a)----------------------------------------------- 7.11
(b)----------------------------------------------- 7.11
(c)----------------------------------------------- N.A.
312(a)-------------------------------------------- 2.05
(b)----------------------------------------------- 10.03
(c)----------------------------------------------- 10.03
313(a)----------------------------------------------- 7.06
(b)(1)-------------------------------------------- N.A.
(b)(2)-------------------------------------------- 7.06
(c)----------------------------------------------- 7.06; 10.02
(d)----------------------------------------------- 7.06
314(a)----------------------------------------------- 4.05; 4.06; 10.02
(b)----------------------------------------------- N.A.
(c)(1)-------------------------------------------- 10.04
(c)(2)-------------------------------------------- 10.04
(c)(3)-------------------------------------------- N.A.
(d)----------------------------------------------- N.A.
(e)----------------------------------------------- 10.05
(f)----------------------------------------------- N.A.
315(a)----------------------------------------------- 7.12(b)
(b)----------------------------------------------- 7.05; 10.02
(c)----------------------------------------------- 7.12(a)
(d)----------------------------------------------- 7.12(c)
(e)----------------------------------------------- 6.11
316(a)(last sentence)-------------------------------- 2.09
(a)(1)(A)----------------------------------------- 6.05
(a)(1)(B)----------------------------------------- 6.04
(a)(2)-------------------------------------------- N.A.
(b)----------------------------------------------- 6.07
(c)----------------------------------------------- 9.04
317(a)(1)-------------------------------------------- 6.08
(a)(2)-------------------------------------------- 6.09
(b)----------------------------------------------- 2.04
318(a)----------------------------------------------- 10.01
N.A. means "not applicable."
*This Cross-Reference Table shall not, for any purpose, be deemed to be a part
of this Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .............................................. 1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act ........ 22
SECTION 1.03. Rules of Construction .................................... 23
ARTICLE II THE SECURITIES
SECTION 2.01. Form and Dating .......................................... 23
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount . 24
SECTION 2.03. Registrar and Paying Agent ...............................
SECTION 2.04. Paying Agent To Hold Money in Trust ...................... 26
SECTION 2.05. Securityholder Lists ..................................... 26
SECTION 2.06. Transfer and Exchange .................................... 26
SECTION 2.07. Replacement Securities ................................... 28
SECTION 2.08. Outstanding Securities ................................... 29
SECTION 2.09. Treasury Securities ...................................... 29
SECTION 2.10. Temporary Securities ..................................... 29
SECTION 2.11. Cancellation ............................................. 30
SECTION 2.12. Defaulted Interest ....................................... 30
SECTION 2.13. CUSIP Number ............................................. 30
SECTION 2.14. Deposit of Moneys ........................................ 30
ARTICLE III REDEMPTION
SECTION 3.01. Notices to Trustee ....................................... 31
SECTION 3.02. Selection of Securities To Be Redeemed ................... 31
SECTION 3.03. Notice of Redemption ..................................... 32
SECTION 3.04. Effect of Notice of Redemption ........................... 32
SECTION 3.05. Deposit of Redemption Price .............................. 33
SECTION 3.06. Securities Redeemed in Part .............................. 33
ARTICLE IV COVENANTS
SECTION 4.01. Payment of Securities .................................... 33
SECTION 4.02. Maintenance of Office or Agency .......................... 33
SECTION 4.03. Corporate Existence ...................................... 34
SECTION 4.04. Payment of Taxes and Other Claims ........................ 34
SECTION 4.05. Compliance Certificates .................................. 35
SECTION 4.06. Securities and Exchange Commission Reports ............... 36
SECTION 4.07. Waiver of Stay, Extension or Usury Laws .................. 37
SECTION 4.08. Maintenance of Properties ................................ 37
SECTION 4.09. Limitation on Debt and Preferred Stock of the Company
and its Subsidiaries ................................... 37
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SECTION 4.10. Limitation on Restricted Payments and Restricted
Investments ............................................ 40
SECTION 4.11. Limitation on Liens ...................................... 42
SECTION 4.12. Limitation on Transactions with Affiliates ............... 43
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries ................................. 46
SECTION 4.14. Change of Control ........................................ 47
SECTION 4.15. Limitation on Asset Sales ................................ 49
SECTION 4.16. Restriction on Transfer of Certain Assets to
Subsidiaries ........................................... 52
SECTION 4.17. Investment Company Act .................................... 52
SECTION 4.18. Consents, etc ............................................. 52
ARTICLE V SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge, etc .......................... 53
SECTION 5.02. Successor Corporation Substituted ........................ 54
ARTICLE VI DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default ........................................ 54
SECTION 6.02. Acceleration ............................................. 56
SECTION 6.03. Other Remedies 56
SECTION 6.04. Waiver of Past Defaults .................................. 57
SECTION 6.05. Control by Majority ...................................... 57
SECTION 6.06. Limitation on Remedies ................................... 57
SECTION 6.07. Rights of Holders To Receive Payment ..................... 58
SECTION 6.08. Collection Suit by Trustee ............................... 58
SECTION 6.09. Trustee May File Proofs of Claim ......................... 58
SECTION 6.10. Priorities ............................................... 59
SECTION 6.11. Undertaking for Costs .................................... 60
SECTION 6.12. Restoration of Rights and Remedies ....................... 60
ARTICLE VII TRUSTEE ........................................................ 60
SECTION 7.01. Rights of Trustee ........................................ 60
SECTION 7.02. Individual Rights of Trustee ............................. 61
SECTION 7.03. Money Held in Trust ...................................... 61
SECTION 7.04. Trustee's Disclaimer ..................................... 61
SECTION 7.05. Notice of Defaults ....................................... 62
SECTION 7.06. Reports by Trustee to Holders ............................ 62
SECTION 7.07. Compensation and Indemnity ............................... 62
SECTION 7.08. Replacement of Trustee ................................... 63
SECTION 7.09. Successor Trustee by Merger, etc ......................... 65
SECTION 7.10. Eligibility; Disqualification ............................ 65
SECTION 7.11. Preferential Collection of Claims Against the Company .... 65
SECTION 7.12. Duties of Trustee ........................................ 65
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ARTICLE VIII DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Securities; Defeasance ......... 67
SECTION 8.02. Conditions to Defeasance ................................. 68
SECTION 8.03. Application of Trust Money ............................... 69
SECTION 8.04. Repayment to Company ..................................... 69
SECTION 8.05. Indemnity for Government Obligations ..................... 70
SECTION 8.06. Reinstatement ............................................ 70
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders ............................... 70
SECTION 9.02. With Consent of Holders .................................. 71
SECTION 9.03. Revocation and Effect of Consents ........................ 71
SECTION 9.04. Record Date .............................................. 71
SECTION 9.05. Notation on or Exchange of Securities .................... 71
SECTION 9.06. Trustee May Sign Amendments, etc ......................... 72
SECTION 9.07. Compliance with TIA ...................................... 72
ARTICLE X MISCELLANEOUS .................................................... 72
SECTION 10.01. Trust Indenture Act of 1939 .............................. 72
SECTION 10.02. Notices .................................................. 72
SECTION 10.03. Communication by Holders with Other Holders .............. 73
SECTION 10.04. Certificate and Opinion as to Conditions Precedent ....... 73
SECTION 10.05. Statements Required in Certificate or Opinion ............ 74
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar ................ 74
SECTION 10.07. Governing Law ............................................ 74
SECTION 10.08. No Interpretation of Other Agreements .................... 75
SECTION 10.09. No Recourse Against Others ............................... 75
SECTION 10.10. Legal Holidays ........................................... 75
SECTION 10.11. Successors ............................................... 75
SECTION 10.12. Duplicate Originals ...................................... 75
SECTION 10.13. Separability ............................................. 75
SECTION 10.14. Table of Contents, Headings, etc ......................... 75
SECTION 10.15. Benefits of Indenture .................................... 75
SIGNATURES ................................................................. 76
EXHIBIT A -- Form of Initial Note .......................................... A-1
EXHIBIT B -- Form of Exchange Note ......................................... B-1
EXHIBIT C -- Form of Legend for Book-Entry Securities ...................... C-1
EXHIBIT D -- Form of Accredited Investor Letter ............................ D-1
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INDENTURE, dated as of December 9, 1996, between BUILDING MATERIALS
CORPORATION OF AMERICA, a Delaware corporation, and THE BANK OF NEW YORK, a New
York banking corporation (the "Trustee"), having its Corporate Trust Office at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
The parties agree as follows for the benefit of each other and for
the equal and ratable benefit of the Holders of the Company's 8 5/8% Senior
Notes due 2006 (the "Initial Securities") and the Company's Series B 8 5/8%
Senior Notes due 2006 (the "Exchange Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accredited Investor" has the meaning set forth in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act.
"Acquired Debt", with respect to any Person, means (i) Debt
(including any then unutilized commitment under any revolving working capital
facility) of an entity, which entity is acquired by such Person or any of its
Subsidiaries after the Issue Date; provided that such Debt (including any such
facility) is outstanding at the time of the acquisition of such entity, is not
created in contemplation of such acquisition and is not, directly or indirectly,
recourse (including by way of set-off) to such Person or its Subsidiaries or any
of their respective assets other than to the entity and its Subsidiaries so
acquired and the assets of the entity and its Subsidiaries so acquired, (ii)
Debt of such Person that is not, directly or indirectly, recourse (including by
way of set-off) to such Person and its Subsidiaries or any of their respective
assets other than to specified assets acquired by such Person or its
Subsidiaries after the Issue Date, which Debt is outstanding at the time of the
acquisition of such assets and is not created in contemplation of such
acquisition, or (iii) Refinancings of Debt described in clause (i) or (ii),
provided that the recourse with respect to such Refinancing Debt is limited to
the same extent as the Debt so Refinanced.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when
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used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" having meanings correlative to the foregoing. For the avoidance of
doubt, ISP Holdings Inc. and its Affiliates (so long as they are under common
control with the Company) shall, both before and after the Spin Off, be deemed
Affiliates of the Company.
"Agent" means any Registrar, Paying Agent or co-Registrar of the
Securities.
"Applicable Premium" means, with respect to any Security, the greater
of (x) 1.0% of the principal amount of such Security and (y) the excess, if any,
of (a) the present value of the remaining interest payments, principal and
future optional redemption premium (if applicable) of such security, discounted
on a semi-annual bond equivalent basis from either December 15, 2006 or the
optional redemption date to the applicable redemption date at a per annum
interest rate equal to the Treasury Yield for such redemption date plus 100
basis points, over (b) the sum of the principal amount of such Security plus
accrued and unpaid interest to the redemption date.
"Asset Sale" means, with respect to any Person, the sale, lease,
assignment or other disposition (including, without limitation, dispositions
pursuant to any consolidation, merger or sale and leaseback transaction) by such
Person or any of its Subsidiaries in any single transaction or series of related
transactions which consists of the disposition of (i) any Capital Stock of any
Subsidiary or (ii) all or substantially all of the properties and assets of any
division or line of business of such Person or any Subsidiary of such Person
(other than of a Non-Recourse Subsidiary) to any other Person which is not the
Company or a Subsidiary of the Company. For the purposes of this definition, the
term "Asset Sale" shall not include (A) any sale, lease, assignment or other
disposition of properties or assets that is governed by the provisions of
Article V or (B) any sale, lease, assignment or other disposition by a Person
that has outstanding senior debt securities all of which (I) are rated BBB- or
higher by S&P and have not been placed on credit watch by S&P for a possible
downgrade or (II) are rated Baa3 or higher by Xxxxx'x and have not been placed
on credit watch by Xxxxx'x for a possible downgrade.
"Average Life" means, with respect to any Debt, the quotient obtained
by dividing (i) the sum of the products of (a) the number of years from the date
of the transaction or event
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giving rise to the need to calculate the Average Life of such Debt to the date,
or dates, of each successive scheduled principal payment of such Debt multiplied
by (b) the amount of each such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" of any Person means the Board of Directors or
similar governing body of such Person, or any duly authorized committee of such
Board of Directors or similar governing body.
"Board Resolution" means, with respect to the Board of Directors of
any Person, a copy of a resolution certified by the Secretary or Assistant
Secretary of such Person to have been duly adopted by such Board of Directors
and to be in full force and effect on the date of such certification and
delivered to the Trustee.
"Book-Entry Security" means a Security represented by a Global
Security and registered in the name of the nominee of the Depository.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligation" means any rental obligation that, in
accordance with GAAP, is required to be classified and accounted for as a
capitalized lease and the amount of Debt represented by such obligation shall be
the capitalized amount of such obligation determined in accordance with GAAP;
and the stated maturity thereof shall be the date of the last payment of rent or
any other amount due in respect of such obligation.
"Capital Stock" of any Person means any and all shares, interests
(including partnership interests), warrants, rights, options or other interests,
participations or other equivalents of or interests in (however designated)
equity of such Person, including common or preferred stock, whether now
outstanding or issued after the Issue Date, but excluding any debt securities
convertible into or exchangeable for such equity.
"Cash Equivalents" means (i) marketable direct obligations Issued by,
or unconditionally Guaranteed by, the United States Government or Issued by any
agency thereof and
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backed by the full faith and credit of the United States, in each case maturing
within one year from the date of acquisition thereof, (ii) marketable direct
obligations Issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing
within one year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either S&P or
Xxxxx'x, (iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at least
A-1 from S&P or at least P-1 from Xxxxx'x, (iv) certificates of deposit or
bankers' acceptances maturing within one year from the date of acquisition
thereof Issued by any commercial bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital surplus of not less than $500,000,000, (v) Eurodollar time deposits
maturing within one year from the date of acquisition thereof and issued or
accepted by any commercial bank having at the date of acquisition thereof
combined capital and surplus of not less than $500,000,000, (vi) repurchase
obligations with a term of not more than thirty days for underlying securities
of the types described in clause (i) above entered into with any bank meeting
the qualifications specified in clause (iv) above and (vii) investments in money
market funds having assets in excess of $500,000,000 and which invest
substantially all their assets in securities of the types described in clauses
(i) through (vi) above.
"Change of Control" means the occurrence of any of the following
events:
(i) prior to the time that at least 15% of the then outstanding
Voting Stock of Parent, the Company, or any Subsidiary of Parent of which
the Company is also a Subsidiary is publicly traded on a national
securities exchange or in the NASDAQ (national market system), the
Permitted Holders cease to be the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
majority voting power of the Voting Stock of the Company, whether as a
result of issuance of securities of the Company or any of its Affiliates,
any merger, consolidation, liquidation or dissolution of the Company or
any of its Affiliates, any direct or indirect transfer of securities by
any Permitted Holder or by Parent or any of its Subsidiaries or otherwise
(for purposes of this clause (i) and clause (ii) below, the Permitted
Holders shall be deemed to beneficially
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own any Voting Stock of a corporation (the "specified corporation") held
by any other corporation (the "parent corporation") so long as the
Permitted Holders beneficially own (as so defined), directly or
indirectly, a majority of the Voting Stock of the parent corporation);
(ii) any "Person" (as such term is used in sections 13(d) and 14(d)
of the Exchange Act), other than one or more Permitted Holders, is or
becomes the beneficial owner (as defined in clause (i) above, except that
a Person shall be deemed to have "beneficial ownership" of all shares that
any such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of more than 35% of the Voting Stock of Parent or the Company;
provided that the Permitted Holders beneficially own (as defined in clause
(i) above), directly or indirectly, in the aggregate a lesser percentage
of the Voting Stock of Parent or the Company than such other Person and do
not have the right or ability by voting power, contract or otherwise to
elect or designate for election of a majority of the Board of Directors of
Parent or the Company; or
(iii) cease for any reason to constitute a majority of the Board of
Directors of the Company then in office.
"Change of Control Payment Date" has the meaning set forth in Section
4.14.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Commencement Date" means April 3, 1994.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Stock" of any Person means any and all shares, interests,
participations, or other equivalents (however designated) of such Person's
common stock whether now outstanding or issued after the Issue Date.
"Company" means Building Materials Corporation of America, a Delaware
corporation, and its successors.
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"Consolidated EBITDA Coverage Ratio" with respect to any Person for
any period means the ratio of (i) the aggregate amount of EBITDA of such Person
for such period to (ii) Consolidated Interest Expense of such Person for such
period; provided that (A) if such Person or any Subsidiary of such Person has
Issued any Debt or Capital Stock since the beginning of such period that remains
outstanding on the date such calculation is made or if the transaction giving
rise to the need to calculate the Consolidated EBITDA Coverage Ratio is an
Issuance of Debt or Capital Stock, or both, EBITDA and Consolidated Interest
Expense for such period shall be calculated after giving effect, on a pro forma
basis, to the issuance of such Debt or Capital Stock as if such Debt or Capital
Stock had been Issued on the first day of such period and the discharge of any
other Debt or Capital Stock Refinanced or otherwise discharged with the proceeds
of such new Debt or Capital Stock as if such discharge had occurred on the first
day of such period, (B) if since the beginning of such period such Person or any
Subsidiary of such Person shall have made any asset sales out of the ordinary
course of business, EBITDA for such period shall be reduced by an amount equal
to the EBITDA (if positive) directly attributable to the assets which are the
subject of such asset sale for such period, or increased by an amount equal to
the EBITDA (if negative), directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an amount
equal to the Consolidated Interest Expense directly attributable to any Debt or
Capital Stock of such Person or any Subsidiary of such Person Refinanced or
otherwise discharged with respect to such Person and its continuing Subsidiaries
(including as a result of the assumption of such Debt or Capital Stock by the
purchaser of such assets, provided that such Person or any of its Subsidiaries
is no longer liable therefor) in connection with such asset sales for such
period (or if the Capital Stock of any Subsidiary of such Person is sold, the
Consolidated Interest Expense for such period directly attributable to the Debt
of such Subsidiary to the extent such Person and its continuing Subsidiaries are
no longer liable for such Debt after such sale) and (C) if since the beginning
of the period such Person or any Subsidiary of such Person (by merger or
otherwise) shall have made an Investment in any Subsidiary of such Person (or
any Person which becomes a Subsidiary of such Person) or an acquisition of
assets, including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which constitutes all of
an operating unit of a business, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto, as if
such Investment or acquisition occurred on the first day of such period. For
purposes of this definition, pro forma calculations shall be
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determined in good faith by a responsible financial or accounting officer of the
Person with respect to which the calculation is being made. If any Debt or
Capital Stock bears a floating rate of interest and is being given pro forma
effect, the interest on such Debt and the dividends on such Capital Stock shall
be calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period.
"Consolidated Interest Expense" means, with respect to any Person,
for any period, the sum of (a) the interest expense of such Person and its
consolidated Subsidiaries (other than (x) interest expense related to
Non-Recourse Debt and (y) interest expense resulting from any discount of the
asbestos reserve reflected on the Company's financial statements as of September
29, 1996) for such period as determined in accordance with GAAP consistently
applied, plus the amount of all dividends paid or accrued on any series of
Preferred Stock (other than non-Redeemable Stock) of such Person and its
Subsidiaries (other than Non-Recourse Subsidiaries).
"Consolidated Net Income (Loss)" means, with respect to any Person,
for any period, the consolidated net income (or loss) of such Person and its
consolidated Subsidiaries for such period as determined in accordance with GAAP,
adjusted to the extent included in calculating such net income (or loss), by
excluding (i) all extraordinary gains in such period net of all extraordinary
losses in such period; (ii) net income (or loss) of any other Person
attributable to any period prior to the date of combination of such other Person
with such Person or any of its Subsidiaries on a "pooling of interests" basis;
(iii) net gains or losses in respect of dispositions of assets by such Person or
any of its Subsidiaries (including pursuant to a sale-and-leaseback arrangement)
other than in the ordinary course of business; (iv) the net income (loss) of any
Subsidiary of such Person to the extent that the declaration of dividends or
distributions by that Subsidiary of that income is not at the time permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulations applicable to that Subsidiary or its shareholders; (v) the net
income (or net loss) of any other Person that is not a Subsidiary of the first
Person with respect to which Consolidated Net Income is being calculated (the
"first Person") and in which any other Person (other than such first Person
and/or any of its Subsidiaries) has an equity interest or of a Non-Recourse
Subsidiary of such first Person, except to the extent of the amount of dividends
or other distributions actually paid or made to such first Person or any of its
Subsidiaries by such other Person during such period
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(subject, in the case of a dividend or distribution received by a Subsidiary of
such first Person, to the limitations contained in clause (iv) above); (vi) any
interest income resulting from loans or investments in Affiliates, other than
cash interest income actually received; (vii) any reserve established at the
time the Company's Affiliates first acquired USI; and (viii) the cumulative
effect of a change in accounting principles. In determining Consolidated Net
Income (Loss), gains or losses resulting from the early retirement,
extinguishment or refinancing of indebtedness for money borrowed, including any
fees and expenses associated therewith, shall be deducted or added back,
respectively.
"Consolidated Net Worth" of any Person means, at any date, all
amounts that would, in conformity with GAAP, be included under shareholders'
equity on a consolidated balance sheet of such Person as at such date less (to
the extent otherwise included therein) any amounts attributable to Redeemable
Stock.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
principally administered, which on the date hereof is located at 000 Xxxxxxx
Xxxxxx, Xxxxx 21 West, New York, New York 10286, except that, with respect to
presentation of Securities for payment or registration of transfer and exchange
and the location of the Securities register, such term means the office or
agency of the Trustee at which at any particular time its corporate agency
business shall be conducted, which is, on the date hereof, located at 000
Xxxxxxx Xxxxxx, Xxxxxxxxx Trust Services Window, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Agreements" mean (i) the credit agreement, dated as of
December 9, 1994, between the Company and The Chase Manhattan Bank, as amended
by amendments dated as of July 1, 1995, June 28, 1996 and November 21, 1996,
(ii) the credit agreement, dated as of September 24, 1993, between the Company
and NationsBank of North Carolina, N.A., as amended by amendments dated as of
June 30, 1994, December 31, 1994, June 22, 1995, June 26, 1996 and December 3,
1996 and (iii) the credit agreement dated as of June 29, 1995, as amended by
amendments dated June 28, 1996 and November 15, 1996 between the Company and The
Bank of New York, each amended as and supplemented from time to time.
-9-
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debt" of any Person means, without duplication, (i) the principal in
respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable (other than those
payable to government agencies to defer the payment of workers' compensation
liabilities, taxes, assessments or other obligations, and provided in the
ordinary course of business of such Person); (ii) all Capital Lease Obligations
of such Person; (iii) all obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable and other accrued current liabilities
arising in the ordinary course of business); (iv) all obligations of such Person
for the reimbursement of any obligor on any letter of credit, bankers'
acceptance or similar credit transaction (other than obligations with respect to
letters of credit securing obligations (other than obligations described in (i)
through (iii) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the third Business
Day following receipt by such Person of a demand for reimbursement following
payment on the letter of credit); (v) the amount of all obligations of such
Person with respect to the redemption, repayment or other repurchase of any
Preferred Stock (but excluding any accrued dividends); (vi) all obligations of
the type referred to in clauses (i) through (v) of other Persons and all
dividends of other Persons for the payment of which, in either case, such Person
is responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including guarantees of such obligations and dividends; and (vii) all
obligations of the type referred to in clauses (i) through (vi) of other Persons
secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person), the amount of such obligation being
deemed to be the lesser of the value of such property or assets or the amount of
the obligation so secured. For purposes of Section 4.15, Debt of the Company or
any of its Subsidiaries shall include the provision for existing or future
asbestos-related bodily injury claims, as set forth in the then most recent
consolidated financial statement of the Company.
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"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Deferred Coupon Notes" means the Company's 11 3/4% Senior Deferred
Coupon Notes due 2004.
"Depository" means, with respect to the Securities issued in the form
of one or more Book-Entry Securities, The Depository Trust Company or another
person designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"EBITDA" with respect to any Person for any period means the
Consolidated Net Income of such Person for such period, adjusted to the extent
deducted in calculating such Consolidated Net Income by adding back (without
duplication): (i) income tax expense of such Person and its Subsidiaries accrued
in accordance with GAAP for such period (other than income taxes attributable to
extraordinary items or other items excluded from the definition of Consolidated
Net Income), (ii) Consolidated Interest Expense of such Person for such period,
(iii) depreciation expense of such Person for such period, (iv) amortization
expense of such Person for such period, and (v) minority interest in any Non
Wholly-Owned Recourse Subsidiary that is otherwise consolidated in the financial
statements of such Person, but only so long as such Subsidiary is consolidated
with such Person for such period for U.S. federal income tax purposes.
"Events of Default" has the meaning set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the registration by the Company under the
Securities Act pursuant to a registration statement of the offer by the Company
to each Holder of the Initial Securities to exchange all the Initial Securities
held by such Holder for the Exchange Securities in an aggregate principal amount
equal to the aggregate principal amount of the Initial Securities held by such
Holder, all in accordance with the terms and conditions of the Registration
Rights Agreement.
"Exchange Securities" has the meaning assigned to that term in the
preambles to this Indenture.
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"GAF" means GAF Corporation, a Delaware corporation, and its
successors.
"GCC" means GAF Chemicals Corporation, a Delaware corporation, and
its successors.
"Generally Accepted Accounting Principles" or "GAAP" means generally
acceptable accounting principles set forth in the opinions and pronouncements of
the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board as of the date of the Indenture.
"G-I Holdings" means G-I Holdings Inc., a Delaware corporation, and
its successors.
"Glass Fiber Contract" means the supply agreement effective as of the
Spin Off Date between GCC and the Company.
"Global Security" means a Security evidencing all or a part of the
Securities to be issued as Book-Entry Securities, issued to the Depository in
accordance with Section 2.02 and bearing the legend prescribed in Exhibit C.
"Granules Contracts" means (i) the supply agreement, dated as of
January 1, 1995, between ISP Technologies, Inc. and the Company, as amended by
amendment dated as of December 31, 1995 and (ii) after the Spin Off Date, the
letter dated November 9, 1995 from ISP Mineral Products Inc. to USI.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation, contingent or otherwise, of any other Person and, without limiting
the generality of the foregoing, any obligation, direct or indirect, contingent
or otherwise, of such Person (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation of such other
Person (whether arising by virtue of participation arrangements, by agreement to
keep well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring the obligee of such Debt or other obligation in any
other manner of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the term "guarantee" shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
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"Holder" or "Securityholder" means the Person in whose name a
Security is registered on the Registrar's books.
"Incur" means incur, create, assume, Guarantee or otherwise become
liable; and the terms "incurred" and "incurrence" having meanings correlative to
the foregoing.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Initial Purchasers" means Bear, Xxxxxxx & Co. Inc., Chase Securities
Inc. and Salomon Brothers Inc
"Initial Securities" has the meaning assigned to that term in the
preambles to this Indenture.
"Interest Payment Dates" means December 15 and June 15, commencing
June 15, 1997.
"Investment" means any direct or indirect advance, loan (other than
advances or loans to customers in the ordinary course of business, which are
recorded, in accordance with GAAP, at the time made as accounts receivable on
the balance sheet of the Person making such advance or loan) or other extension
of credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, bonds, notes,
debentures or other securities Issued by, any other Person.
"ISP" means International Specialty Products Inc., a Delaware
corporation, and its successors.
"Issue" means issue, assume, Guarantee, incur or otherwise become
liable for; provided that any Debt or Capital Stock of a Person existing at the
time such Person becomes a Subsidiary of another Person (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Issued by such
Subsidiary at the time it becomes a Subsidiary of such other Person.
"Issue Date" means the date of original issuance of the Securities.
"Legal Holiday" has the meaning set forth in Section 10.10.
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"Lien" means any lien, mortgage, charge, pledge, security interest,
or other encumbrance of any kind (including any conditional sale or other title
retention agreement and any lease in the nature thereof).
"Management Agreement" means the amended and restated management
agreement, dated as of March 3, 1992, between the Company and ISP, as amended
through the Issue Date.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Assets" means assets, singly or in the aggregate, the book
or fair market value of which equals 5% or more of the consolidated tangible
assets of the Company, as set forth on its most recently publicly available
balance sheet.
"Moody's" means Xxxxx'x Investors Service, Inc. or its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents received by the Company or any of its Subsidiaries from such Asset
Sale net of (a) reasonable out-of-pocket expenses and fees relating to such
Asset Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions), (b) taxes paid or payable ((1) including,
without limitation, income taxes reasonably estimated to be actually payable as
a result of any disposition of property within two years of the date of
disposition, including under any tax sharing arrangements, and (2) after taking
into account any reduction in tax liability due to available tax credits or
deductions applicable to the transaction), (c) a reasonable reserve for the
after-tax cost of any indemnification obligations (fixed and/or contingent)
attributable to seller's indemnities to the purchaser undertaken by the Company
or any of its Subsidiaries in connection with such Asset Sale and (d) repayment
of Debt that is required to be repaid in connection with such Asset Sale, under
the agreements governing such Debt or Asset Sale.
"Net Proceeds Offer" shall have the meaning provided in Section 4.15.
"Non-Recourse Debt" of any Person means Debt or the portion of Debt
(i) as to which neither Parent nor any of its Subsidiaries (other than a
Non-Recourse Subsidiary) (A) provides
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credit support (including any undertaking, agreement or instrument which would
constitute Debt), (B) is directly or indirectly liable or (C) constitutes the
lender and (ii) no default with respect to which (including any rights which the
holders thereof may have to take enforcement action against the assets of a
Non-Recourse Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Debt of such Person or its Subsidiaries (other than
Non-Recourse Subsidiaries) to declare a default on such other Debt or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity.
"Non-Recourse Subsidiary" of any Person means a Subsidiary (A) which
has been designated as such by such Person, (B) which has not acquired any
assets directly or indirectly from Parent or any of its Subsidiaries other than
at fair market value, including by the receipt of Capital Stock of such
Non-Recourse Subsidiary, provided that, if any such acquisition or series of
related acquisitions involves assets having a value in excess of $2,000,000,
such acquisition or series of related acquisitions shall be approved by a
majority of the members of the Board of Directors of the Company in a Board
Resolution which shall set forth that such acquisitions are being, or have been,
made at fair market value, and (C) which has no Debt other than Non-Recourse
Debt.
"Obligations" means (a) the full and punctual payment of the
principal and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of
the Company under this Indenture and the Securities and (b) the full and
punctual performance of all other obligations of the Company under this
Indenture and the Securities.
"Offering" means the Company's offering of the Initial Securities.
"Offering Memorandum" means the Offering Memorandum dated December ,
1996, pursuant to which the Initial Securities were offered.
"Officer" of any corporation means the Chairman of the Board, the
President, any Vice President, the Chief Financial Officer, the Treasurer, the
Secretary, the Controller or the Assistant Secretary of such corporation.
"Officers' Certificate" of any corporation means a certificate signed
by two Officers or by an Officer and an
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Assistant Treasurer or Assistant Secretary of such corporation and delivered to
the Trustee and which complies with Section 10.05.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee and which complies with Section 10.05.
Such legal counsel may be an employee of or counsel to the Company or its
Affiliates.
"Parent" means GAF so long as it owns, and any other Person which
acquires or owns, directly or indirectly, 80% or more of the Voting Stock of the
Company.
"Paying Agent" has the meaning set forth in Section 2.03, except
that, for the purposes of Article VIII and Sections 4.14 and 4.15, the Paying
Agent shall not be the Company or a Subsidiary of the Company or an Affiliate of
any thereof.
"Permitted Holders" means (i) Xxxxxx X. Xxxxxx, his heirs,
administrators, executors and entities of which a majority of the Voting Stock
is owned by Xxxxxx X. Xxxxxx, his heirs, administrators or executors and (ii)
any Person controlled, directly or indirectly, by Xxxxxx X. Xxxxxx or his heirs,
administrators or executors.
"Permitted Lien" means:
(1) Liens for taxes, assessments and governmental charges to the
extent not required to be paid under this Indenture;
(2) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising
in the ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by an appropriate process of
law, and for which a reserve or other appropriate provision, if any, as
shall be required by GAAP shall have been made;
(3) pledges or deposits in the ordinary course of business to secure
lease obligations or non-delinquent obligations under workers'
compensation, unemployment insurance or similar legislation;
(4) Liens to secure the performance of public statutory obligations
that are not delinquent, appeal bonds,
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performance bonds or other obligations of a like nature (other than for
borrowed money);
(5) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business of the Company and
its Subsidiaries, taken as a whole;
(6) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of nondelinquent customs duties in
connection with the importation of goods;
(7) judgment and attachment Liens not giving rise to a Default or
Event of Default;
(8) leases or subleases granted to others not interfering in any
material respect with the business of the Company and its Subsidiaries,
taken as a whole;
(9) Liens encumbering deposits made in the ordinary course of
business to secure nondelinquent obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of
its Subsidiaries for which a reserve or other appropriate provision, if
any, as shall be required by GAAP shall have been made;
(10) any interest or title of a lessor in the property subject to any
lease, whether characterized as capitalized or operating other than any
such interest or title resulting from or arising out of default by the
Company or any of its Subsidiaries of its obligations under any such lease
which is material;
(11) Liens arising from filing UCC financing statements for
precautionary purposes in connection with true leases or conditional sales
of personal property that are otherwise permitted under this Indenture and
under which the Company or any of its Subsidiaries is lessee;
(12) broker's Liens securing the payment of commissions and
management fees in the ordinary course of business;
(13) Liens on cash and Cash Equivalents posted as margin pursuant to
the requirements of any bona fide hedge agreement relating to interest
rates, foreign exchange or
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commodities listed on public exchanges, but only to the extent such Liens
are required from customers generally regardless of creditworthiness) in
accordance with customary market practice;
(14) Liens on cash collateralizing reimbursement obligations in
respect of letters of credit issued for the account of the Company or any
of its Subsidiaries in the ordinary course of business (other than letters
of credit issued as credit support for any Debt);
(15) Liens arising in respect of accounts receivable arising as a
result of non-recourse sales thereof; and
(16) Liens on stock or assets of any Non-Recourse Subsidiary securing
Debt owing by such Non-Recourse Subsidiary.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation. Preferred Stock of any Person shall include Redeemable Stock of
such Person.
"Principal" of a debt security, including the Securities, means the
principal of such security plus, when appropriate, the premium, if any, on such
security.
"Private Exchange Notes" has the meaning assigned to such term in the
Registration Rights Agreement.
"Proceeds Purchase Date" shall have the meaning provided in Section
4.15.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
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"Receivables" means accounts receivables, and related documentation,
contract rights, related proceeds and general intangibles.
"Receivables Financing Agreement" means the Pooling and Servicing
Agreement, dated as of November 1, 1996, among the Company, BMCA Receivables
Corporation and The Bank of New York, as Trustee, and related agreements, as
amended or supplemented.
"Recourse Subsidiaries" of any Person means all Subsidiaries of such
Person other than Non-Recourse Subsidiaries of such Person.
"Redeemable Stock" means, with respect to any Person, Capital Stock
of such Person that by its terms or otherwise (x) is required, directly or
indirectly, to be redeemed on or prior to the ninetieth day after the Stated
Maturity of the Securities, (y) is redeemable or puttable, directly or
indirectly, at the option of the holder thereof at any time on or prior to the
ninetieth day after the Stated Maturity of the Securities, or (z) is
exchangeable or convertible into another security (other than a security that is
not itself Redeemable Stock).
"Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue Debt in
exchange or replacement for, such Debt. "Refinanced" and "Refinancing" shall
have correlative meanings.
"Registrar" has the meaning set forth in Section 2.03.
"Registration Rights Agreement" means the registration rights
agreement dated December 9, 1996, between the Company and the Initial
Purchasers.
"Restricted Investment" means, with respect to the Company or any of
its Subsidiaries, an Investment by such Person in an Affiliate of the Company;
provided that the following shall not be Restricted Investments: (i) Investments
in the Company or any of its Recourse Subsidiaries; (ii) Investments in
Unrestricted Affiliates; and (iii) Investments in Affiliates that become, as a
result of such Investment, Recourse Subsidiaries.
"Restricted Payment" means (i) the declaration or making of any
dividend or of any other payment or distribution (other than dividends, payments
or distributions payable solely in shares of the Company's Capital Stock other
than Redeemable
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Stock) on or with respect to the Company's Capital Stock (other than Redeemable
Stock) and (ii) any payment on account of the purchase, redemption, retirement
or other acquisition for value of the Company's Capital Stock (other than
Redeemable Stock).
"Restricted Security" has the meaning set forth in Rule 144(a)(3)
under the Securities Act.
"S&P" means Standard & Poor's Rating Services or its successors.
"Securities" means the Initial Securities, the Exchange Securities
and the Private Exchange Notes treated as a single class of securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Commission thereunder.
"Shelf Registration Statement" means the shelf registration
statement, which the Company will use its best efforts to cause to become
effective with respect to the resale of the Initial Securities in the event that
the Exchange Offer is not completed, pursuant to the terms of the Registration
Rights Agreement.
"Significant Subsidiary" means (i) any Subsidiary (other than a
Non-Recourse Subsidiary) of the Company which at the time of determination
either (A) had assets which, as of the date of the Company's most recent
quarterly consolidated balance sheet, constituted at least 5% of the Company's
total assets on a consolidated basis as of such date, in each case determined in
accordance with GAAP, or (B) had revenues for the 12-month period ending on the
date of the Company's most recent quarterly consolidated statement of income
which constituted at least 5% of the Company's total revenues on a consolidated
basis for such period, or (ii) any Subsidiary of the Company (other than a
Non-Recourse Subsidiary) which, if merged with all Defaulting Subsidiaries (as
defined below) of the Company, would at the time of determination either (A)
have had assets which, as of the date of the Company's most recent quarterly
consolidated balance sheet, would have constituted at least 10% of the Company's
total assets on a consolidated basis as of such date or (B) have had revenues
for the 12-month period ending on the date of the Company's most recent
quarterly consolidated statement of income which would have constituted at least
10% of the Company's total revenues on a consolidated basis for such period
(each such determination being made in accordance with GAAP). "Defaulting
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Subsidiary" means any Subsidiary of the Company (other than a Non-Recourse
Subsidiary) with respect to which an event described under clause (6), (7) or
(8) of Section 6.01 has occurred and is continuing.
"Spin Off" means the consummation of the Spin Off Transactions (as
defined in the Offering Memorandum).
"Spin Off Date" means the date on which the Spin Off is consummated.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the dates specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable, and when used with respect to any other Debt, means
the date specified in the instrument governing such Debt as the fixed date on
which the principal of such Debt or any installment of interest is due and
payable.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose Capital Stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such Person,
by one or more Subsidiaries of such Person or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries thereof or such Person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof has at least majority ownership interest and the power to direct the
policies, management and affairs thereof. For purposes of this definition, any
director's qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
"Tax Sharing Agreement" means the tax sharing agreement, dated as of
January 31, 1994, among the Company, G-I Holdings and GAF.
"TIA" means, except as otherwise provided in Section 9.07, the Trust
Indenture Act of 1939, as amended, as in effect on the date hereof.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two Business Days prior
to the
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applicable redemption date (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) most nearly equal to
the then remaining Average Life of the Securities; provided that, if the Average
Life of the Securities is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Yield
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that, if the average life of the
Securities is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used.
"Trustee" means the party named as such in this Indenture until a
successor replaces such party in accordance with the provisions of this
Indenture, and thereafter means such successor.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"Unrestricted Affiliate" means a Person (other than a Subsidiary of
the Company except a Non-Recourse Subsidiary) controlled by, or under common
control with, the Company in which no Affiliate of the Company (other than (i)
the Company or a Wholly-Owned Recourse Subsidiary, (ii) any director or officer
of the Company or any of its Subsidiaries whose primary employment is by the
Company or any of its Subsidiaries other than a Non-Recourse Subsidiary, except
for Permitted Holders or members of their immediate family, and (iii) another
Unrestricted Affiliate) has an Investment.
"U.S. Government Obligations" means money or direct non-callable
obligations of the United States of America for the payment of which the full
faith and credit of the United States is pledged.
"USI" means U.S. Intec, Inc., a Texas corporation, and its
successors.
"Voting Stock" means, with respect to any Person, Capital Stock of
any class or kind normally entitled to vote in the election of the board of
directors or other governing body of such Person.
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"Wholly-Owned Recourse Subsidiary" means a Subsidiary of a Person
(other than a Non-Recourse Subsidiary) all the Capital Stock of which (other
than directors' qualifying shares) is owned by such Person or another
Wholly-Owned Recourse Subsidiary of such Person.
"Wholly-Owned Subsidiary" means a Subsidiary all the Capital Stock of
which (other than directors' qualifying shares) is owned by the applicable
corporation or another Wholly-Owned Subsidiary of the applicable corporation.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means Holder or a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and words in the plural
include the singular;
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(4) provisions apply to successive events and transactions;
(5) herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subdivision; and
(6) all calculations made for the purpose of determining compliance
with the terms of the covenants set forth in Article IV and other
provisions of this Indenture shall utilize GAAP in effect at the time of
preparation of, and in conformity with those used to prepare, the
historical consolidated financial statements of the Company at and for the
fiscal year ended December 31, 1995.
ARTICLE II
THE SECURITIES
SECTION 2.01. Form and Dating. The Initial Securities and the
Trustee's certificate of authentication thereon shall be substantially in the
form of Exhibit A hereto. The Exchange Securities and the Private Exchange Notes
and the Trustee's certificate of authentication thereon shall be substantially
in the form of Exhibit B. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or agreements to which the
Company is subject, if any, or usage. The Company shall approve the form of the
Securities and any notation, legend or endorsement on them, and such approval
shall be evidenced by the execution of such Securities by two Officers of the
Company. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of the Securities,
annexed hereto as Exhibits A and B, shall constitute, and are hereby expressly
made, a part of this Indenture.
SECTION 2.02. Execution and Authentication; Aggregate Principal
Amount. Two Officers shall sign the Securities for the Company by facsimile or
manual signature. The Company's seal may be reproduced or imprinted on the
Securities, by facsimile or otherwise.
If a Person whose signature is on a Security as an Officer no longer
holds that office or position at the time the
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Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery (i)
Initial Securities for original issue in an aggregate principal amount of
$100,000,000, and (ii) Exchange Securities or Private Exchange Notes from time
to time for issue only in exchange for a like principal amount of Initial
Securities in accordance with the Registration Rights Agreement, in each case
upon a written order Registrar of the Company signed by an Officer of the
Company to a Trust Officer. The order shall specify the amount of Securities to
be authenticated, the date on which the Securities are to be authenticated and
whether the Securities are to be Initial Securities, Exchange Securities or
Private Exchange Notes. The aggregate principal amount of Securities outstanding
at any time may not exceed $100,000,000, except as provided in Section 2.07.
The Securities shall be issuable only in registered form and only in
denominations of $1,000 and any integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Securities, which authenticating agent shall be
compensated by the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so,
except with regard to the original issuance of the Securities and pursuant to
Section 2.06. Except as provided in the preceding sentence, each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Agent.
If the Securities are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall authenticate
and deliver one or more Global Securities that (i) shall represent and shall be
in minimum denominations of $1,000 or in the approximate equivalent amount, (ii)
shall be registered in the name of the Depository for such Global Security or
Securities or the nominee of such Depository, (iii) shall be delivered by the
Trustee to such Depository or pursuant to such Depository's instructions and
(iv) shall bear the legend set forth in Exhibit C.
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SECTION 2.03. Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency where Securities
may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Securities and of their transfer and exchange. The Company may
have one or more co-Registrars and one or more additional Paying Agents. The
term "Paying Agent" includes any additional Paying Agent.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture. Each such agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and address
of any such Agent and any change in the address of such Agent. The Company may
change an Agent without prior notice to the Holders. In the event that there is
a change in the address of an Agent or if the Company changes an Agent, the
Company shall promptly notify the Holders in writing. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar and Paying
Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of Securityholders all money
held by the Paying Agent for the payment of principal of or interest on the
Securities, and such Paying Agent shall notify the Trustee of any default by the
Company in making any such payment. If the Company or any of its Subsidiaries
acts as Paying Agent, it shall segregate the money and hold it as a separate
trust fund. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee and account for any funds disbursed, and the Trustee
may at any time during the continuance of any payment default, upon written
request to a Paying Agent, require such Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed. Upon doing so, the Paying
Agent shall have no further liability for the money so paid over to the Trustee.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders and shall otherwise comply with
TIA ss. 312(a). If the Trustee is not the Registrar, the Company
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shall furnish to the Trustee at least ten Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders, and the Company shall otherwise
comply with TIA ss. 312(a).
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as to the
names and addresses of the Securityholders and the principal amounts and serial
numbers of the Securities.
SECTION 2.06. Transfer and Exchange. The Securities shall be issued
in registered form and shall be transferable only upon the surrender of such
Securities for registration or transfer. When Securities are presented to the
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transactions are met; provided that every
Security presented or surrendered for registration of transfer or exchange shall
be duly endorsed, or be accompanied by a written instrument or transfer in a
form satisfactory to the Company and the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit registrations of
transfer and exchanges, the Company shall execute the Securities, and the
Trustee shall authenticate the Securities at the Registrar's request. No service
charge to the Securityholder shall be made for any registration of transfer or
exchange, but the Company or the Trustee may require from the transferring or
exchanging Securityholder payment of a sum sufficient to cover any transfer tax
or similar governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon exchanges
pursuant to Sections 2.10, 4.14, 4.15 or 9.05). The Registrar or co-Registrar
shall not be required to register the transfer of or exchange of any Security
(i) during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities and ending at the close of
business on the day of such mailing and (ii) selected for redemption in whole or
in part pursuant to Article III, except the unredeemed portion of any Security
being redeemed in part.
If a Security is a Restricted Security in certificated form, then as
provided in this Indenture and subject to the limitations herein set forth, the
Holder, provided it is a Qualified
-27-
Institutional Buyer or an Accredited Investor, may exchange such Security for a
Book-Entry Security by instructing the Trustee to arrange for such Security to
be represented by a beneficial interest in a Global Security in accordance with
the customary procedures of the Depository.
In accordance with the provisions of this Indenture and subject to
certain limitations herein set forth, an owner of a beneficial interest in a
Global Security which has not been exchanged for an Exchange Security may
request a Security in certificated form, in exchange in whole or in part, as the
case may be, for such beneficial owner's interest in the Global Security.
Upon any exchange provided for in the preceding paragraph, the
Company shall execute and the Trustee shall authenticate and deliver to the
person specified by the Depository a new Security or Securities registered in
such names and in such authorized denominations as the Depository, pursuant to
the instructions of the beneficial owner of the Securities requesting the
exchange, shall instruct the Trustee. Thereupon, the beneficial ownership of
such Global Security shown on the records maintained by the Depository or its
nominee shall be reduced by the amounts so exchanged and an appropriate
endorsement shall be made by or on behalf of the Trustee on the Global Security.
Any such exchange shall be effected through the Depository in accordance with
the procedures of the Depository therefor.
Notwithstanding the foregoing, no Global Security shall be registered
for transfer or exchange, or authenticated and delivered, whether pursuant to
this Section, Section 2.07, 2.10 or 3.06 or otherwise, in the name of a person
other than the Depository for such Global Security or its nominee until (i) the
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time the Depository ceases to
be a clearing agency registered under the Exchange Act, and a successor
depository is not appointed by the Company within 30 days, (ii) the Company
executes and delivers to the Trustee a Company order that all such Global
Securities shall be exchangeable or (iii) there shall have occurred and be
continuing an Event of Default. Upon the occurrence in respect of any Global
Security representing the Securities of any one or more of the conditions
specified in clause (i), (ii) or (iii) of the preceding sentence, such Global
Security may be registered for transfer or exchange for Securities registered in
the names of, authenticated and delivered to, such persons as the Trustee or the
Depository, as the case may be, shall direct.
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Except as provided above, any Security authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, any Global
Security, whether pursuant to this Section, Section 2.07, 2.10 or 3.06 or
otherwise, shall also be a Global Security and bear the legend specified in
Exhibit C.
SECTION 2.07. Replacement Securities. If a mutilated Security is
surrendered to the Trustee or if the Holder of a Security claims that such
Security has been lost, destroyed or wrongfully taken, the Company shall issue a
replacement Security, and the Trustee shall authenticate such replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, an indemnity bond must be provided by the Securityholder that is
sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced. The Company or the Trustee may charge such Holder for
its expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee, except for
those cancelled by it, those delivered to it for cancellation and those
described in this Section 2.08 as not outstanding. A Security does not cease to
be outstanding because the Company or one of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds (or, if the Company or a Subsidiary is the
Paying Agent, segregates and holds in trust), in accordance with this Indenture,
on the maturity or redemption date, money sufficient to pay Securities payable
on that date, then on and after that date such Securities shall be deemed to be
no longer outstanding and interest on them shall cease to accrue.
SECTION 2.09. Treasury Securities. In determining whether the Holders
of the required principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or any of its Affiliates
shall be disregarded, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direc-
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tion, waiver or consent, only Securities which the Trustee actually knows are so
owned shall be so disregarded.
SECTION 2.10. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare, and the Trustee shall authenticate
upon written order of the Company signed by an Officer thereof, temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare, and the Trustee shall authenticate, definitive Securities in
exchange for temporary Securities.
Until such exchange, such temporary Securities shall be entitled to
the same rights, benefits and privileges as the definitive Securities.
SECTION 2.11. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation. The Company may not issue new Securities to replace Securities it
has paid or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay the defaulted interest,
plus, to the extent permitted by law, any interest payable on the defaulted
interest, to the Persons who are Securityholders on a subsequent special record
date. Such special record date shall be the fifteenth day next preceding the
date fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before the special record date, the
Company shall mail or cause to be mailed to each Securityholder and the Trustee
a notice that states the special record date, the payment date and the amount of
defaulted interest to be paid.
SECTION 2.13. CUSIP Number. The Company in issuing the Securities may
use a "CUSIP" number. If so, the Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Securityholders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be
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placed only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the CUSIP
number.
SECTION 2.14. Deposit of Moneys. On or before 11:00 A.M., New York
City time, on each payment date, the Company shall deposit with the Trustee or
Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such payment date. The principal amount and interest
due on Book-Entry Securities shall be payable to the Depository or its nominee,
as the case may be, as the sole registered owner and the sole holder of the
Book-Entry Securities represented thereby. The principal amount and interest on
Securities in certificated form shall be payable at the office of the Paying
Agent; provided however that the Company, at its option, may pay interest by
check by mailing such check to the Holder's registered address.
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 5(a) of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give the notice to the Trustee provided for in this
Section at least 45 days before the redemption date, unless the Trustee consents
in writing to a shorter notice period. Such notice shall be accompanied by an
Officers' Certificate and an Opinion of Counsel to the effect that such
redemption will comply with the conditions contained in this Indenture and will
set forth the redemption price. If fewer than all the Securities are to be
redeemed, the record date relating to such redemption shall be selected by the
Company and given to the Trustee together with the 45-day notice, which record
date shall not be prior to the date of such notice nor more than 15 days after
the date of notice to the Trustee.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a method that complies with applicable
legal
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and securities exchange requirements, if any. The Trustee shall make the
selection from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the principal amount at maturity
of Securities that have denominations larger than $1,000, subject to the
restriction that Securities and portions of Securities which the Trustee selects
shall be in amounts of $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities (or, if applicable, at
such other time as is provided by paragraph 5(a) of the Securities), the Company
shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(A) the redemption date;
(B) the redemption price;
(C) the name and address of the Paying Agent;
(D) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(E) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amount of the particular Securities to be
redeemed;
(F) that, unless the Company defaults in making such redemption
payment, interest on Securities called for redemption ceases to accrue on
and after such redemption date; and
(G) the CUSIP number, if any, and that no representation is made as
to the correctness or accuracy of the CUSIP number, if any, listed in such
notice or printed on the Securities.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by clauses
(A), (B), (C) and (E) at least 45 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, subject to the Company's compliance with Section
3.05 herein, such Securities shall be paid at the redemption price stated in the
notice, plus accrued and unpaid interest, if any, to the redemption date.
SECTION 3.05. Deposit of Redemption Price. On or prior to the
redemption date, the Company shall deposit with the Paying Agent in immediately
available funds (or, if the Company or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of and
accrued and unpaid interest, if any, on all Securities to be redeemed on that
date other than Securities or portions of Securities called for redemption which
have been delivered by the Company to the Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay, or cause
to be paid, the principal of and interest on the Securities on the dates and in
the manner provided herein and in the Securities. Principal or interest shall be
considered paid on the date due if the Trustee or Paying Agent holds on that
date money designated for and sufficient to pay all principal and interest
payable in cash in each case as then due. The Company shall pay interest on
overdue principal, as the case may be, at the rate specified therefor in the
Securities.
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SECTION 4.02. Maintenance of Office or Agency. The Company shall
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
fails to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee as set forth in
Section 10.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any matter relieve the
Company of its obligation to maintain an office or agency pursuant to this
Section 4.02. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the office of the Trustee or
its agent located in the Borough of Manhattan, The City of New York, as such
office of the Company in accordance with Section 2.03.
SECTION 4.03. Corporate Existence. The Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
(i) corporate existence and the corporate existence of each of its Subsidiaries
(other than Non-Recourse Subsidiaries) in accordance with their respective
organizational documents and (ii) the material rights (charter and statutory),
licenses and franchises of the Company and each of its Subsidiaries; provided
that (i) neither the Company nor any of its Subsidiaries shall be required to
preserve any such right or franchise, or corporate existence, if the Board of
Directors of the Company or such Subsidiary shall determine that the loss
thereof is not, and will not be, adverse in any material respect to the Company
or the Holders and (ii) nothing in this Section 4.03 shall prevent the Company
from taking any action that complies with the provisions of Section 5.01.
SECTION 4.04. Payment of Taxes and Other Claims. The Company shall,
and shall cause each of its Subsidiaries
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(other than Non-Recourse Subsidiaries) to, pay or discharge or cause to be paid
or discharged, before any penalty accrues from the failure to so pay or
discharge, (1) all material taxes, assessments and governmental charges levied
or imposed upon it or any of such Subsidiaries or upon the income, profits or
property of it or any of such Subsidiaries, and (2) all material, lawful claims
for labor, materials and supplies which, if unpaid, might by law become a Lien
upon its property or the property of any Subsidiary; provided that there shall
not be required to be paid or discharged any such tax, assessment, charge or
claim if the amount, applicability or validity thereof is being contested in
good faith by appropriate proceedings and adequate provision therefor has been
made.
SECTION 4.05. Compliance Certificates. (a) The Company shall deliver
to the Trustee within 60 days after the end of each of the Company's fiscal
quarters (120 days after the end of the Company's last fiscal quarter of its
fiscal year) an Officers' Certificate, stating whether or not the signers, after
due inquiry, know of any Default or Event of Default which occurred during such
fiscal quarter. An Officers' Certificate delivered within 120 days after the end
of the Company's fiscal year shall also contain a certification from the
principal executive officer, principal financial officer or principal accounting
officer of the Company as to such officer's knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 4.05(a), such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Indenture. If
the officer does know of such a Default or Event of Default, the certificate
shall describe any such Default or Event of Default, and its status. The first
certificate to be delivered pursuant to this Section 4.05(a) shall be for the
first fiscal quarter beginning after the execution of this Indenture.
(b) The Company shall deliver to the Trustee, as soon as possible and
in any event within 10 days after the Company becomes aware of the occurrence of
each Default or Event of Default which is continuing, an Officers' Certificate
setting forth the details of such Default or Event of Default, and the action
which the Company has taken and proposes to take with respect thereto. Following
receipt of such Officers' Certificate, the Trustee shall send the notice called
for by Section 7.05, except as provided therein.
SECTION 4.06. Securities and Exchange Commission Reports. (a) The
Company shall file with the Trustee and provide
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Holders of record, within 15 days after it files them with the Commission,
copies of its annual report and the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, without exhibits
in the case of each Holder, unless the Company is requested in writing by such
Holder. Notwithstanding that the Company may not be required to remain subject
to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will continue to file with the Commission and provide the Trustee and
Holders with such annual reports and information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may by
rules and regulations prescribe) which are specified in Sections 13 and 15(d) of
the Exchange Act, without exhibits in the case of Holders, unless the Company is
requested in writing by the Holders. The Company also will comply with the other
provisions of TIA ss. 314(a).
(b) So long as any of the Securities remain outstanding, the Company
shall cause each annual, quarterly and other financial report mailed or
otherwise furnished by it generally to public securityholders to be filed with
the Trustee and mailed to the Holders of record at their addresses appearing in
the register of Securities maintained by the Registrar, in each case at the time
of such mailing or furnishing to stockholders. The Company shall provide to any
Holder or any beneficial owner of Notes any information reasonably requested by
such holder or such beneficial owner concerning the Company and its Subsidiaries
(including financial statements) necessary in order to permit such holder or
such beneficial owner to sell or transfer Notes in compliance with Rule 144A
under the Securities Act or any similar rule or regulation adopted by he
Commission.
(c) Delivery of such reports to the Trustee is for informational
purposes only and the Trustee's receipt of such reports shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
SECTION 4.07. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the full extent permitted by applicable law) that it will not at
any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or
-36-
advantage of, and will actively resist any attempts to claim the benefit of any
stay or extension law or any usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal or Accreted
Value of or interest on the Securities as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the full extent permitted by applicable
law) the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 4.08. Maintenance of Properties. Subject to this Article IV,
the Company shall cause all material properties owned by or leased to it or any
of its Subsidiaries (other than Non-Recourse Subsidiaries) and used or useful in
the conduct of its business or the business of such Subsidiaries to be
maintained and kept in normal condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company or such Subsidiary may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided that nothing in this Section 4.08 shall prevent the
Company or any of its Subsidiaries from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is not, in the judgment of the Board of Directors of
the Company or such Subsidiary, adverse in any material respect, to the Company
or the Holders.
SECTION 4.09. Limitation on Debt and Preferred Stock of the Company
and its Subsidiaries. (a) The Company shall not, and shall not permit any of its
Subsidiaries to, Issue, directly or indirectly, any Debt unless, at the time of
such Issuance and after giving effect thereto, (i) no Default or Event of
Default shall have occurred and be continuing and (ii) the Consolidated EBITDA
Coverage Ratio of the Company for the period of its most recently completed four
consecutive fiscal quarters ending at least 45 days prior to the date such Debt
is Issued is at least 2.00 to 1.00.
(b) Notwithstanding the foregoing, there may be issued the following
Debt:
(1) The Securities;
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(2) Debt the proceeds of which are used to acquire assets of the
Company and its Subsidiaries and such Debt is secured by purchase money
Liens on such assets or improvements or additions thereto, or replacements
thereof; provided that, after giving effect to the Issuance of any such
Debt that otherwise complies with this clause (3), the aggregate amount of
all Debt then outstanding at any time under this clause (3), including all
Refinancings thereof then outstanding, shall not at any time exceed
$50,000,000;
(3) Acquired Debt;
(4) (x) Debt outstanding on the Issue Date (including the Deferred
Coupon Notes) and (y) Debt Issued to Refinance any Debt permitted by
clause (a), this clause (5) or by clauses (1) and (3) of this Section
4.09(b); provided that, in the case of a Refinancing, (i) the amount of
the Debt so Issued shall not exceed the principal amount or the accreted
value (in the case of Debt Issued at a discount) of the Debt so Refinanced
plus, in each case, the reasonable costs incurred by the issuer in
connection with such Refinancing, (ii) the Average Life and Stated
Maturity of the Debt so Issued shall equal or exceed that of the Debt so
Refinanced, (iii) the Debt so Issued shall not rank senior in right of
payment to the Debt being Refinanced, (iv) if the Debt being Refinanced
does not bear interest in cash prior to a specified date, the Refinancing
Debt shall not bear interest in cash prior to such specified date, (v) if
the Debt being Refinanced is Debt permitted by clause (3), such
Refinancing Debt is not secured by any assets not securing the Debt so
Refinanced or improvements or additions thereto, or replacements thereof,
and (vi) the obligors with respect to the Refinancing Debt shall not
include any Persons who were not obligors (including predecessors thereof)
with respect to the Debt being Refinanced;
(5) Non-Recourse Debt of a Non-Recourse Subsidiary of the Company and
Guarantees of Non-Recourse Debt of Non-Recourse Subsidiaries which
Guarantees are recourse only to the stock of the Non-Recourse
Subsidiaries;
(6) Debt under the Credit Agreements or any Refinancing thereof;
provided that the aggregate outstanding amount thereunder does not at any
time exceed $75,000,000;
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(7) Debt secured by Receivables, including to Refinance the
Receivables Financing Agreement, provided that the amount of such Debt
does not exceed 85% of the face amount of the Receivables; and
(8) Debt (other than Debt identified in clauses (1) through (8)
above) in an aggregate principal amount outstanding at any one time not to
exceed $50,000,000.
(c) The Company shall not, and shall not permit any of its
Subsidiaries to, Issue any Preferred Stock; provided that there may be issued
the following Preferred Stock:
(1) Preferred Stock of the Company or any Subsidiary of the Company
issued to and held by the Company or a Wholly-Owned Recourse Subsidiary of
the Company; provided that any subsequent transfer of such Preferred Stock
(other than to the Company or to a Wholly-Owned Recourse Subsidiary of the
Company) or such Wholly-Owned Recourse Subsidiary of the Company ceasing
to be a Wholly-Owned Recourse Subsidiary of the Company shall be deemed,
in each case, to constitute the Issuance of such Preferred Stock by the
Company or such Subsidiary;
(2) Preferred Stock (other than Preferred Stock described in clause
(1) but including the Preferred Stock referred to in the proviso to clause
(1) above); provided that the liquidation value of any Preferred Stock
issued pursuant to this clause (2) shall constitute Debt for purposes of
this Section 4.09 and dividends on such Preferred Stock shall be included
in determining Consolidated Interest Expense of the Company for purposes
of calculating the Consolidated EBITDA Coverage Ratio of the Company under
paragraph (a) of this Section 4.09; and
(3) Preferred Stock (other than Redeemable Stock) of the Company.
(d) To the extent the Company or any of its Subsidiaries Guarantees
any Debt of the Company or any other Subsidiary, such Guarantee and such Debt
will be deemed to be the same Debt and only the amount of the Debt will be
deemed to be outstanding. If the Company or any of its Subsidiaries Guarantees
any Debt of a Person that, subsequent to the Issuance of such Guarantee, becomes
a Subsidiary of the Company, such Guarantee and the Debt so Guaranteed shall be
deemed to be the same Debt, which shall be deemed to have been Issued when the
Guarantee
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was Issued and shall be deemed to be permitted to the extent the Guarantee was
permitted when Issued.
SECTION 4.10. Limitation on Restricted Payments and Restricted
Investments. (a) So long as no Default or an Event of Default shall have
occurred and be continuing, the Company may make, and may permit any of its
Subsidiaries to make, directly or indirectly, a Restricted Payment or Restricted
Investment so long as, at the time of such Restricted Payment or Restricted
Investment and immediately after giving effect thereto, the aggregate amount of
Restricted Payments made since the Issue Date and the aggregate amount of
Restricted Investments made since the Issue Date and then outstanding (the
amount expended for such purposes, if other than in cash, shall be the fair
market value of such property as determined by the Board of Directors of the
Company in good faith as of the date of payment or investment) shall not exceed
the sum of:
(i) 50% of the cumulative Consolidated Net Income (or minus 100% of
the cumulative Consolidated Net Loss) of the Company accrued during the
period beginning on the Commencement Date and ending on the last day of
the fiscal quarter for which financial information has been made publicly
available by the Company but ending no more than 135 days prior to the
date of such Restricted Payment or Restricted Investment (treating such
period as a single accounting period);
(ii) 100% of the net cash proceeds, including the fair market value
of property other than cash as determined by the Board of Directors of the
Company in good faith, as evidenced by a Board Resolution, received by the
Company from any Person (other than a Subsidiary of the Company) from the
Issuance and sale subsequent to the Commencement Date of Capital Stock of
the Company (other than Redeemable Stock) or as a capital contribution;
provided that, if the value of the non-cash contribution is in excess of
$10,000,000 the Company shall have received the written opinion of a
nationally recognized investment banking firm that the terms thereof, from
a financial point of view, are fair to the shareholders of the Company or
such Subsidiary, in their capacity as such (the determination as to the
value of any non-cash consideration referred to in this clause (ii) to be
made by such investment banking firm), and such opinion shall have been
delivered to the Trustee;
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(iii) 100% of the net cash proceeds received by the Company from the
exercise of options or warrants on Capital Stock of the Company (other
than Redeemable Stock) since the Commencement Date;
(iv) 100% of the net cash proceeds received by the Company from the
conversion into Capital Stock (other than Redeemable Stock) of convertible
Debt or convertible Preferred Stock issued and sold (other than to a
Subsidiary of the Company) since the Commencement Date; and
(v) $30,000,000.
The designation by the Company or any of its Subsidiaries of a
Subsidiary as a Non-Recourse Subsidiary shall be deemed to be the making of a
Restricted Investment by the Company in an amount equal to the outstanding
Investments made by the Company and its Subsidiaries in such Person being
designated a Non-Recourse Subsidiary at the time of such designation.
(b) Section 4.10(a) shall not prevent the following, as long as no
Default or Event of Default shall have occurred and be continuing (or would
result therefrom other than pursuant to Section 4.10(a)):
(1) the making of any Restricted Payment or Restricted Investment
within 60 days after (x) the date of declaration thereof or (y) the making
of a binding commitment in respect thereof; provided that at such date of
declaration or commitment such Restricted Payment or Restricted Investment
complied with Section 4.10(a);
(2) any Restricted Payment or Restricted Investment made out of the
net cash proceeds received by the Company from the substantially
concurrent sale of its Common Stock (other than to a Subsidiary of the
Company); provided that such net cash proceeds so utilized shall not be
included in paragraph (a) in determining the amount of Restricted Payments
or Restricted Investments the Company could make under Section 4.10(a);
(3) cumulative Investments in Non-Recourse Subsidiaries not in
excess of $50,000,000 in the aggregate determined as of the date of
Investment (the amount so expended, if other than cash, to be determined
by the Company's Board of Directors, as evidenced by a Board Resolution);
and
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(4) repurchases of Capital Stock of the Company, in each case from
employees of the Company or any of its Subsidiaries (other than any
Permitted Holder); provided, however, that the aggregate amount of
Restricted payments made under this clause shall not exceed $1,500,000 in
any fiscal year.
Restricted Payments or Restricted Investments made pursuant to clauses (2), (3)
or (4) shall not be deducted in determining the amount of Restricted Payments or
Restricted Investments made or then outstanding under Section 4.10(a).
SECTION 4.11. Limitation on Liens. The Company shall not, and shall
not permit any of its Subsidiaries to, directly or indirectly, incur or suffer
to exist any Liens upon their respective property or assets whether owned on the
Issue Date or acquired after such date, or on any income or profits therefrom,
other than the following:
(1) Liens existing on the Issue Date;
(2) Permitted Liens;
(3) Purchase money Liens on assets of the Company and its
Subsidiaries or improvements or additions thereto existing or created
within 180 days after the time of acquisition of or improvement or
addition to such assets, or replacements thereof; provided that (i) such
acquisition, improvement or addition is otherwise permitted by this
Indenture, (ii) the principal amount of Debt (including Debt in respect of
Capitalized Lease Obligations) secured by each such Lien in each asset
shall not exceed the cost (including all such Debt secured thereby,
whether or not assumed) of the item subject thereto, and such Liens shall
attach solely to the particular item of property so acquired, improved or
added and any additions or accessions thereto, or replacements thereof,
and (iii) the aggregate amount of Debt secured by Liens permitted by this
clause (3) shall not at any time exceed $30,000,000;
(4) Liens to secure Refinancing of any Debt secured by Liens
described in clauses (1)-(3) above and (5) below; provided that (i)
Refinancing does not increase the principal amount of Debt being so
Refinanced and (ii) the Lien of the Refinancing Debt does not extend to
any asset not securing the Debt being Refinanced or improvements or
additions thereto, or replacements thereof;
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(5) Liens securing Acquired Debt; provided that (i) any such Lien
secured the Acquired Debt at the time of the incurrence of such Acquired
Debt by the Company or by one of its Subsidiaries and such Lien and
Acquired Debt were not incurred by the Company or any of its Subsidiaries
or by the Person being acquired or from whom the assets were acquired in
connection with, or in anticipation of, the incurrence of such Acquired
Debt by the Company or by one of its Subsidiaries and (ii) any such Lien
does not extend to or cover any property or assets of the Company or of
any of its Subsidiaries other than the property or assets that secured the
Acquired Debt prior to the time such Debt became Acquired Debt of the
Company or of one of its Subsidiaries;
(6) Liens on Receivables securing Debt permitted by Section
4.09(b)(8);
(7) Liens securing intercompany Debt permitted by Section
4.09(b)(2); and
(8) Liens on assets of the Company and its Subsidiaries in addition
to those referred to in clauses (1)-(7), provided that such Liens only
secure Debt of the Company and its Subsidiaries in an aggregate amount not
to exceed at any one time outstanding $50,000,000.
SECTION 4.12. Limitation on Transactions with Affiliates. (a) The
Company shall not enter, and shall not permit any of its Subsidiaries to enter,
directly or indirectly, into any transaction or series of related transactions
with any Affiliate of the Company (other than (x) the making of a Restricted
Payment or Restricted Investment otherwise permitted by Section 4.10 or those
transactions specifically permitted by Section 4.10(b), (y) transactions between
or among Non-Recourse Subsidiaries of the Company or (z) transactions between or
among the Company and its Subsidiaries (other than Non-Recourse Subsidiaries))
including, without limitation, any loan, advance or investment or any purchase,
sale, lease or exchange of property or the rendering of any service, unless the
terms of such transaction or series of transactions are set forth in writing and
at least as favorable as those available in a comparable transaction in
arms-length dealings from an unrelated Person; provided that (i) if any such
transaction or series of related transactions (other than any purchase or sale
of inventory in the ordinary course of business, but including entering into any
long-term arrangement involving the purchase of granules or glass fiber from, or
the provision of management services of
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the type currently provided under the Management Agreement by, an Affiliate of
the Company, including ISP or a Subsidiary thereof) involves aggregate payments
or other consideration in excess of $5,000,000, such transaction or series of
related transactions shall be approved (and the value of any non-cash
consideration shall be determined) by a majority of those members of the Board
of Directors of the Company or such Subsidiary, as the case may be, having no
personal stake in such business, transaction or transactions; and (ii) in the
event that such transaction or series of related transactions (other than any
purchase or sale of inventory in the ordinary course of business or other than
purchases of granules or glass fiber from an Affiliate of the Company, including
ISP or a Subsidiary thereof) involves aggregate payments or other consideration
in excess of $20,000,000 (with the value of any noncash consideration being
determined by a majority of those members of the Board of Directors of the
Company or such Subsidiary, as the case may be, having no personal stake in such
business, transaction or transactions), the Company or such Subsidiary, as the
case may be, shall have also received a written opinion from a nationally
recognized investment banking firm that such transaction or series of related
transactions is fair to the shareholders, in their capacity as such, of the
Company or such Subsidiary from a financial point of view and such opinion has
been delivered to the Trustee; provided further, in the event that the Board of
Directors of the Company or the Subsidiary, as the case may be, proposing to
engage in a transaction or series of related transactions described in the
preceding proviso does not have any members having no personal stake in such
business, transaction or transactions, the Company or such Subsidiary may enter
into such transaction or series of transactions if the Company or such
Subsidiary, as the case may be, shall have received the written opinion of a
nationally recognized investment banking firm that the terms thereof, from a
financial point of view, are fair to the shareholders of the Company or such
Subsidiary, in their capacity as such (the determination as to the value of any
non-cash consideration referred to in the preceding proviso to be made by such
investment banking firm), and such opinion shall have been delivered to the
Trustee.
(b) Section 4.12(a) shall not prevent the following:
(1) the purchase of granules from an Affiliate of the Company,
including ISP or a Subsidiary of ISP, provided that (a) subject to Section
4.12(c), the price and other terms shall not be less favorable to the
Company than those set forth in the Granules Contracts or (b) a
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nationally recognized investment banking firm or accounting firm has
delivered a written opinion to the Company to the effect that either the
terms thereof are fair to the Company from a financial point of view or
are on terms at least as favorable to the Company as those available in
comparable transactions in arms-length dealings from an unrelated third
party;
(2) the continuance of the Management Agreement (including with an
Affiliate of the Company other than ISP) (a) in accordance with its terms
or on terms no less favorable to the Company than those contained in the
Management Agreement or (b) on other terms provided that the Company shall
have received the written opinion of a nationally recognized investment
banking firm or accounting firm that either the terms thereof, from a
financial point of view, are fair to the Company or are on terms at least
as favorable to the Company as those available in comparable transactions
in arms-length dealings from an unrelated Person;
(3) any transaction between the Company or a Subsidiary thereof and
its own employee stock ownership or benefit plan;
(4) any transaction with an officer or director of the Company or
any Subsidiary of the Company entered into in the ordinary course of
business (including compensation or employee benefit arrangements with any
such officer or director);
(5) any business or transaction with an Unrestricted Affiliate;
(6) borrowings by the Company or its Subsidiaries from Affiliates of
the Company; provided that such loans are unsecured, are prepayable at any
time without penalty, contain no restrictive covenants and the effective
cost of borrowings thereunder do not exceed the interest rate then in
effect from time to time under the Credit Agreements or any Refinancings
thereof (or, if none of such agreements is outstanding, under unsecured
bank Debt of the Company);
(7) payments made pursuant to the Tax Sharing Agreement; or
(8) purchases made pursuant to the Glass Fiber Contract; provided
that the terms of such contract are set
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forth in writing and are at least as favorable to the Company as those
available at the Spin Off Date in a comparable transaction in arms-length
dealings with an unrelated Person.
(c) The Company shall not, and shall not permit any of its
Subsidiaries to, amend, modify or waive any provision of the Tax Sharing
Agreement, the Granules Contracts or the Glass Fiber Contract in any manner
which is significantly adverse to the Company or the holders of the Notes (it
being understood that an extension or modification of any of the Granules
Contracts (or any similar granules purchase contract) or the Glass Fiber
Contract on terms at least as favorable to the Company as those available at the
time of the extension or modification (or any such new agreement) in a
comparable transaction in arms-length dealings with an unrelated Person shall
not be deemed significantly adverse to the Company or the Holders).
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. The Company shall not, and shall not permit any of its
Subsidiaries (other than Non-Recourse Subsidiaries) to, directly or indirectly,
create or otherwise cause to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (a) pay dividends or make any
other distributions on its Capital Stock or pay any Debt owed to the Company or
any of its Subsidiaries, (b) make loans or advances to the Company or any of its
Subsidiaries, (c) transfer any of its properties or assets to the Company or (d)
incur or suffer to exist Liens in favor of the Holders, except for such
encumbrances or restrictions existing under or by reason of any of the
following:
(1) applicable law;
(2) this Indenture and the indenture governing the Deferred Coupon
Notes;
(3) customary provisions restricting subletting or assignment of any
lease or license or other commercial agreement;
(4) any instrument governing Acquired Debt of any Person, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than such Person and its
Subsidiaries, or the property or assets of such Person and its
Subsidiaries, so acquired;
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(5) the Liens specifically permitted by Section 4.11; provided that
such Liens and the terms governing such Liens do not, directly or
indirectly, restrict the Company or its Subsidiaries from granting other
Liens, except as to the assets subject to such Liens;
(6) the Credit Agreements, the Receivables Financing Agreement or
other Debt existing on the Issue Date; and
(7) any Refinancing of the Credit Agreements, the Receivables
Financing Agreement or any such other Debt existing on the Issue Date;
provided that the terms and conditions of any such Refinancing agreements
relating to the terms described under clauses (a)-(d) above are no less
favorable to the Company than those contained in the agreements governing
the Debt being Refinanced.
SECTION 4.14. Change of Control. (a) In the event of any Change of
Control, each Holder shall have the right, at such Holder's option, to require
the Company to purchase all or any portion (in integral multiples of $1,000) of
such Holder's Securities on the date (the "Change of Control Payment Date")
which is 25 Business Days after the date the Change of Control Notice (as
defined below) is mailed or is required to be mailed (or such later date as is
required by applicable law) at 101% of the principal amount thereof (or, if
lower, the redemption price then in effect under paragraph 5(a) of the
Securities), plus accrued interest to the Change of Control Payment Date (the
"Put Amount").
(b) The Company or, at the request of the Company, the Trustee shall
send, by first-class mail, postage prepaid, to all Holders, within ten Business
Days after the occurrence of each Change of Control, a notice of the occurrence
of such Change of Control (the "Change of Control Notice"), specifying a date by
which a Holder must notify the Company of such Holder's intention to exercise
the repurchase right and describing the procedure that such Holder must follow
to exercise such right. The Company is required to deliver a copy of such notice
to the Trustee and to cause a copy of such notice to be published in a daily
newspaper of national circulation.
Each Change of Control Notice shall state:
(1) that a Change of Control has occurred, that each Holder has the
right to require the Company to repurchase all or any part of such
Holder's Security at a purchase price in cash equal to their Put Amount,
that the change
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of control offer is being made pursuant to this Section 4.15 and that all
Securities tendered will be accepted for payment;
(2) the purchase price and the Change of Control Payment Date;
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the change of control offer
shall cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Security purchased pursuant to a
change of control offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent at the address specified in
the notice prior to the close of business on the Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than five Business Days prior to the
Change of Control Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Securities the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered;
(8) the circumstances and relevant facts regarding such Change of
Control, including but not limited to the identity of the purchaser and
pro forma financial information; and
(9) that the Company has the right, pursuant to the provision
described in paragraph 5(a) of the Securities, to redeem any securities
not tendered as provided therein.
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No failure of the Company to give the foregoing notice shall limit
any Holder's right to exercise a repurchase right. The Company shall comply with
all applicable Federal and state securities laws in connection with each Change
of Control Notice.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
change of control offer, (ii) deposit with the Paying Agent money sufficient to
pay the purchase price of all Securities so tendered and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail to such Holders new Securities equal in principal amount to any
unpurchased portion of the Securities surrendered. Any Securities not so
purchased shall be promptly mailed by the Company to the Holder thereof. For
purposes of this Section 4.14, the Trustee shall act as the Paying Agent.
SECTION 4.15. Limitation on Asset Sales. (a) The Company shall not,
and shall not permit any of its Subsidiaries, directly or indirectly, to,
consummate an Asset Sale unless:
(1) the Company or such Subsidiary, as the case may be, receives
consideration (including non-cash consideration, whose fair market value
shall be determined in good faith by the Board of Directors of the Company
or such Subsidiary, as evidenced by a Board Resolution) at the time of
such Asset Sale at least equal to the fair market value of the assets sold
or otherwise disposed of (as determined in good faith by its Board of
Directors, as evidenced by a Board Resolution);
(2) at least 75% of the consideration received by the Company or
such Subsidiary, as the case may be, shall be cash or Cash Equivalents;
provided that this clause (2) shall not prohibit any Asset Sale for which
the Company or such Subsidiary, as the case may be, receives 100% of the
consideration, directly or through the acquisition of Capital Stock of a
Person, in operating assets; and
(3) in the case of an Asset Sale by the Company or any of its
Subsidiaries, the Company shall commit to apply the Net Cash Proceeds of
such Asset Sale within 300 days of the consummation of such Asset Sale,
and shall apply
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such Net Cash Proceeds within 360 days of receipt thereof (i) to invest in
the businesses that the Company and its Recourse Subsidiaries are engaged
in at the time of such Asset Sale or any like or related business, (ii) to
pay or satisfy any Debt of the Company or any of its Subsidiaries (other
than Debt which is subordinated by its terms to the Securities) or
Preferred Stock of a Subsidiary, including the Debt referred to in the
last sentence of the definition thereof or make provision for the payment
thereof, through an escrow or other fund, and/or (iii) to offer to
purchase the Securities in a tender offer (a "Net Proceeds Offer") at a
redemption price equal to 100% of the principal amount thereof plus
accrued interest thereon to the date of purchase; provided, however, that
the Company shall, to the extent required under the indenture governing
the Deferred Coupon Notes, first offer to purchase any outstanding
Deferred Coupon Notes in a tender offer at a redemption price equal to
100% of the accreted value thereof to the date of redemption, provided,
further, however, that the Company may defer making a Net Proceeds Offer
until the aggregate Net Cash Proceeds from Asset Sales to be applied
pursuant to this clause (3)(iii) equal or exceed $20,000,000;
provided that (i) the Company and its Subsidiaries may retain up to $5,000,000
of Net Cash Proceeds from Asset Sales in any twelve-month period (without
complying with clause (3)), and (ii) any Asset Sale that would result in a
Change of Control shall not be governed by this Section 4.15 but shall be
governed by the provisions described under Section 4.14 and paragraph 5(a) of
the Securities.
(b) Notice of a Net Proceeds Offer shall be mailed or caused to be
mailed, by first class mail, by the Company, within 300 days after the relevant
Asset Sale to all Holders at their last registered addresses as of a date within
15 days prior to the mailing of such notice, with a copy to the Trustee. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Net Proceeds Offer and shall state
the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.15 and that all Securities tendered will be accepted for
payment; provided that, if the aggregate principal amount of Securities
tendered in a Net Proceeds Offer exceeds the aggregate amount available
for the Net Proceeds Offer, the Company shall select the Securities to be
purchased on a pro rata basis (with such ad-
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justments as may be deemed appropriate by the Company, so that only
Securities in denominations of $1,000 or multiples thereof shall be
purchased);
(2) the purchase price and the purchase date (which shall be
determined in accordance with Section 4.15(a)) (the "Proceeds Purchase
Date");
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless there is a default in making payment therefor, any
Security accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Proceeds Purchase Date;
(5) that Holders electing to have a Security purchased pursuant to a
Net Proceeds Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, to the Paying Agent at the address specified in the
notice prior to the close of business on the Business Day prior to the
Proceeds Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than two Business Days prior to the
Proceeds Purchase Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities the Holder
delivered for purchase and a statement that such Holder is withdrawing his
or her election to have such Securities purchased; and
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered.
The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Net Proceeds Offer.
On or before the Proceeds Purchase Date, the Company or such
Subsidiary of the Company, as the case may be, shall (i) accept for payment
Securities or portions thereof tendered pursuant to the Net Proceeds Offer which
are to be purchased in
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accordance with item (b)(1) above, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Securities to be purchased and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders of Securities so
accepted payment in an amount equal to the purchase price. For purposes of this
Section 4.15, the Trustee shall act as the Paying Agent.
SECTION 4.16. Restriction on Transfer of Certain Assets to
Subsidiaries. If the Company transfers or causes to be transferred, in one or a
series of related transactions, Material Assets to any one or more Subsidiaries
of the Company, the Company shall cause such transferee Subsidiary to (i)
execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such transferee Subsidiary shall
unconditionally Guarantee, on a senior basis, all of the Company's obligations
under the Securities and (ii) deliver to the Trustee an Opinion of Counsel that
such supplemental indenture has been duly executed and delivered by such
transferee Subsidiary.
SECTION 4.17. Investment Company Act. The Company shall not take any
action that would require it or any of its Subsidiaries to register as an
investment company under the Investment Company Act of 1940.
SECTION 4.18. Consents, etc. The Company shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly, pay or cause to be
paid any fee, interest or other amount to any Holders in connection with any
consent, waiver or amendment to this Indenture or the Securities, unless such
fee, interest or other amount is offered or agreed to be paid to all Holders who
are given the same opportunity to so consent, waive or agree to amend and who,
in fact, so consent, waive or agree to amend.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge, etc. The Company shall not
consolidate with or merge with or into or sell, assign, transfer or lease all or
substantially all of its
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properties and assets (either in one transaction or series of related
transactions) to any Person, unless:
(1) the Company shall be the continuing Person, or the resulting,
surviving or transferee Person (if other than the Company) shall be a
corporation organized and existing under the laws of the United States or
any State thereof or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the
Trustee, in form reasonably satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture, and
this Indenture shall remain in full force and effect;
(2) immediately before and immediately after giving effect to such
transaction (and treating any Debt which becomes an obligation of the
resulting, surviving or transferee Person or any of its Subsidiaries as a
result of such transaction as having been issued by such Person or such
Subsidiary at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing;
(3) immediately before and after giving effect to such transaction,
the resulting, surviving or transferee Person could incur at least $1.00
of additional Debt under Section 4.09(a); and
(4) immediately after giving effect to such transaction, the
resulting, surviving or transferee Person shall have a Consolidated Net
Worth in an amount which is not less than the Consolidated Net Worth of
the Company immediately prior to such transaction.
In connection with any consolidation, merger, sale, assignment,
transfer or lease contemplated by this Section 5.01, the Company shall deliver,
or cause to be delivered, to the Trustee, in form and substance reasonably
satisfactory to the Trustee, an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale, assignment, transfer or
lease and the supplemental indenture in respect thereto comply with this Article
V and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 5.02. Successor Corporation Substituted. Upon any
consolidation or merger or any sale, assignment, transfer or lease of all or
substantially all of the assets of
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the Company in accordance with Section 5.01, the successor corporation formed by
such consolidation or into which the Company is merged or to which such sale,
assignment, transfer or lease is made, shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture,
with the same effect as if such successor corporation had been named as the
Company herein, and, except in the case of a lease, the Company will be
discharged from all obligations and covenants under this Indenture and the
Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the default continues for a
period of 30 days;
(2) (i) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at maturity or otherwise or
(ii) the Company fails to redeem or repurchase Securities when required
pursuant to this Indenture or the Securities;
(3) the Company fails to comply with the provisions of Article V;
(4) the Company fails to comply for 30 days after notice with any of
its obligations under Sections 4.03, 4.06 and 4.09 through 4.14,
inclusive;
(5) the Company fails to comply for 60 days after notice with its
other agreements contained in this Indenture or the Securities (other than
those referred to in clauses (1)-(4) above);
(6) principal of or interest on Debt of the Company or any of its
Significant Subsidiaries is not paid within any applicable grace period or
is accelerated by the holders thereof because of a default and the total
amount that is unpaid or accelerated exceeds $15,000,000 or its foreign
currency equivalent and such default continues for five days after notice;
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(7) the Company or any of its Significant Subsidiaries (A) admits in
writing its inability to pay its debts generally as they become due, (B)
commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (C) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a Custodian of it or
for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(F) makes a general assignment for the benefit of its creditors, or (G)
takes any corporate action to authorize or effect any of the foregoing;
and
(8) any judgment or order for the payment of money in excess of
$15,000,000 in the aggregate is rendered against the Company or any of its
Significant Subsidiaries and (i) there is a period of 60 days following
the entry of such judgment or order during which such judgment or order is
not discharged, waived or the execution thereof stayed and such default
continues for 10 days after the notice specified below or (ii) foreclosure
proceedings therefor have begun and have not been stayed within five days
of the commencement of such foreclosure proceeding.
A Default under clauses (4), (5), (6) or (8) is not an Event of
Default until the Trustee or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities notify the Company in writing of the
Default, and the Company does not cure the Default within the time specified in
such clause after receipt of such notice. Such notice shall be given by the
Trustee if so requested in writing by the Holders of at least 25% in aggregate
principal amount of the outstanding Securities. When a Default under clause (4),
(5), (6) or (8) is cured or remedied within the specified period, it ceases to
exist.
SECTION 6.02. Acceleration. If an Event of Default (other than an
Event of Default with respect to the Company specified in Section 6.01(7))
occurs and is continuing, the Trustee, by written notice to the Company, or the
Holders of at least 25% in aggregate principal amount of the outstanding
Securities, by written notice to the Company and the Trustee, may declare all
unpaid principal of and accrued interest on the Securities then outstanding to
be due and payable (the "Default Amount"). Upon a declaration of acceleration,
such amount shall be due and payable immediately.
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If an Event of Default with respect to the Company specified in
Section 6.01(7) occurs, the Default Amount shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholder.
The Holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Trustee and the Company,
may rescind an acceleration with respect to the Securities and its consequences
if (i) all existing Defaults and Events of Default, other than the non-payment
of the principal of the Securities which has become due solely by such
declaration of acceleration, have been cured or waived, (ii) to the extent the
payment of such interest is lawful, interest on overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid and
(iii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction.
SECTION 6.03. Other Remedies. Notwithstanding any other provision of
this Indenture, if an Event of Default occurs and is continuing and the Holders
are entitled to payment as a result of acceleration, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of and/or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. Subject only to the
provisions of Sections 6.07 and 9.02, the Holders of a majority in aggregate
principal amount of the outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default or Event of Default in payment of principal or interest on any Security
as specified in clauses (1) and (2) of Section 6.01. When a Default or Event of
Default is waived, it is cured and ceases to exist.
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SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate principal amount of the outstanding Securities may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines may be unduly prejudicial to the rights
of another Securityholder as such, or that may subject the Trustee to personal
liability. The Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.06. Limitation on Remedies. Except as provided in Section
6.07, a Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and provide to the Trustee
reasonable indemnity or security satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with such request within 60 days
after receipt of the request and the offer of security or indemnity; and
(5) during such 60-day period, the Holders of a majority in
aggregate principal amount of the outstanding Securities do not give the
Trustee a direction which, in the opinion of the Trustee, is inconsistent
with the request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of the principal amount of and interest on the Security, on or
after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such
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respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of the principal amount, together with, to the extent that payment of such
interest is lawful, interest on overdue principal, at the rate per annum
specified in the Securities, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Securityholders allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Securities),
its creditors or its property. The Trustee shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceedings is hereby authorized by each Securityholder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Securityholders, to pay to the Trustee any amount
due to the Trustee for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
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Second: to Securityholders for amounts due and unpaid on the
Securities ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities for the principal amount
and interest, respectively; and
Third: to the Company or any other obligors on the Securities, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by any Holder or
a group of Holders of more than 10% in principal amount of the outstanding
Securities.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE VII
TRUSTEE
SECTION 7.01. Rights of Trustee. Subject to TIA ss. 315(a) through
(d):
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(A) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(B) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, which shall conform to
Section 10.05. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel.
(C) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(D) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers; provided that the Trustee's conduct does not constitute
negligence.
(E) The Trustee may consult with counsel of its own choosing and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(F) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
SECTION 7.02. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or any of its Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to TIA xx.xx. 310(b) and 311.
SECTION 7.03. Money Held in Trust. The Trustee shall not be liable
for interest on any money received by it except as the Trustee may agree in
writing with the Company.
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Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the legality or validity or adequacy of this Indenture or
the Securities, it shall not be accountable for the Company's use of the
proceeds from the Securities, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
it shall not be responsible for any statement in the Securities other than its
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default in the payment of the principal of or interest on any
Security, the Trustee may withhold notice if and so long as a committee of its
Trust Officers in good faith determines that the withholding of such notice is
in the interests of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each May 15 beginning with the May 15 following the Issue Date, the Trustee
shall mail to each Securityholder a report dated as of May 15 as to the matters
set forth in TIA ss. 313(a) if required by TIA ss. 313(a). The Trustee also
shall comply with TIA xx.xx. 313(b) and 313(c).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the Commission and each stock exchange, if
any, on which the Securities are listed.
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any national securities exchange or of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company agrees that it
shall pay to the Trustee from time to time such compensation as the Company and
the Trustee shall agree in writing for its services. The Trustee's compensation
shall not be limited by any law on compensation relating to the trustee of an
express trust. The Company agrees that it shall reimburse the Trustee upon
request for all reasonable disbursements, expenses and advances incurred or made
by it. Such expenses shall include the reasonable compensation, disbursements
and expenses of the Trustee's agents and counsel. Such ex-
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penses shall also include any taxes or other reasonable costs incurred by the
trust created under Section 8.01.
The Company shall indemnify each of the Trustee and any predecessor
Trustee for, and hold it harmless against, any and all loss, damage, claim or
liability or expense, including taxes (other than taxes based on the income of
the Trustee) incurred by it in connection with the administration of this trust
and its duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the acceptance, exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder unless the Company is actually
prejudiced thereby. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
reimburse the Trustee for any expense or indemnify the Trustee against any loss
or liability incurred by the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee except money or property held in trust to pay
principal or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 6.01(7), the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Company's obligations under this Section 7.07 and any Lien
arising hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article VIII and/or the
termination of this Indenture.
SECTION 7.08. Replacement of Trustee. A resignation or removal of
the Trustee and the appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section 7.08. The Trustee may resign by so notifying the Company in writing at
least 30 days prior to the date of the proposed resignation. The Holders of a
majority in aggregate principal
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amount of the outstanding Securities may remove the Trustee by so notifying the
Trustee in writing and may appoint a successor Trustee with the Company's
consent. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. The Trustee shall be entitled to payment of its fees and reimbursement
of its expenses while acting as Trustee, and to the extent such amounts remain
unpaid, the Trustee that has resigned or has been removed shall retain the Lien
afforded by Section 7.07. Within one year after the successor Trustee takes
office, the Holders of a majority in aggregate principal amount at maturity of
the outstanding Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately thereafter,
subject to the Lien provided in Section 7.07, the retiring Trustee shall
transfer all property held by it as Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the retiring
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in aggregate principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If any Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor
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Trustee. Any successor Trustee shall comply with TIA ss. 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee, if
such corporation or association complies with Section 7.10.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1). The
Trustee shall have (or, in the case of a corporation included in a bank holding
company system, the related bank holding company subsidiary shall have) a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee also shall comply with
TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims Against the Company.
The Trustee is subject to TIA ss. 311(a), excluding from the operation of TIA
ss. 311(a) any creditor relationship listed in TIA ss. 311(b). A Trustee who has
resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated therein.
SECTION 7.12. Duties of Trustee. (A) If a Default or an Event of
Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(B) Except during the continuance of a Default or an Event of
Default:
(1) the Trustee need perform only those duties as are specifically
set forth in this Indenture and no others and no implied covenants or
obligation shall be read into this Indenture against the Trustee; and
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(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and which conform to the requirements of this Indenture;
however, in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(C) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (B) of
this Section 7.12;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(D) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(E) Every provision of this Indenture that in any way relates to the
Trustee is subject to Sections 7.12(A), (B), (C) and (D).
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Securities; Defeasance. (a)
When (i) the Company delivers to the Trustee
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all outstanding Securities (other than Securities replaced pursuant to Section
2.07) for cancellation or (ii) all outstanding Securities have become due and
payable, and the Company irrevocably deposits with the Trustee money sufficient
to pay at maturity all outstanding Securities, including interest thereon, if
any, (other than Securities replaced pursuant to Section 2.07) and if in either
case the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Sections 8.01(c) and 8.06, cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel as to the satisfaction of all conditions to such
satisfaction and discharge of this Indenture and at the cost and expense of the
Company.
(b) Subject to Sections 8.01(c), 8.02 and 8.06, the Company may at
any time terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance"), or (ii) its obligations under Sections 4.03,
4.04, 4.06, 4.08 through 4.17, inclusive, and the operation of Section 6.01(3),
6.01(4), 6.01(5), 6.01(6), 6.01(7) (with respect only to Significant
Subsidiaries) and 6.01(8) and the limitations contained in Section 5.01(3) and
(4) ("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option. If the Company exercises
its legal defeasance option, payment of the Securities may not be accelerated
because of an Event of Default with respect thereto.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08, 8.04, 8.05 and
8.06 shall survive until the Securities have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the
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payment of principal on the Securities and interest, if any, to maturity
or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and interest, if any,
when due on all the Securities to maturity or redemption, as the case may
be;
(3) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment
Company Act of 1940;
(6) the Company delivers to the Trustee an Opinion of Counsel
stating that the Securityholders will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit and defeasance
and will be subject to federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred, and, in the case of legal
defeasance only, such Opinion of Counsel shall be based on a ruling
received from or published by the Internal Revenue Service or a change,
since the date of this Indenture, in the applicable federal income tax
law, and
(7) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article
VIII have been complied with.
Notwithstanding the foregoing provisions of this Section, the
conditions set forth in the foregoing paragraphs (2), (3), (4), (5), (6) and (7)
need not be satisfied so long as, at the time the Company makes the deposit
described in paragraph
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(1), (i) no Default under Section 6.01(1), 6.01(2), 6.01(7) or 6.01(8) has
occurred and is continuing on the date of such deposit and after giving effect
thereto and (ii) either (x) a notice of redemption has been mailed pursuant to
Section 3.03 providing for redemption of all the Securities 30 days after such
mailing and the provisions of Section 3.01 with respect to such redemption shall
have been complied with or (y) the Stated Maturity of all of the Securities will
occur within 30 days. If the conditions of the preceding sentence are satisfied
the Company shall be deemed to have exercised its covenant defeasance option.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III (including by utilizing amounts under deposit).
SECTION 8.03. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article VIII. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest, if any, on the
Securities.
SECTION 8.04. Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal and interest, if any, that remains unclaimed
for two years, and, thereafter, Securityholders entitled to the money must look
to the Company for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The Company
shall pay and shall indemnify the Trustee against any tax, fee or other charges
imposed on or assessed against U.S. Government Obligations deposited with the
Trustee hereunder or the principal and interest received on such U.S. Government
Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
oth-
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erwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article VIII until such time as the
Trustee or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article VIII; provided that, if the Company
has made any payment of interest, if any, on or principal of any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company, when
authorized by a resolution of its Board of Directors, and the Trustee may amend
or supplement this Indenture or the Securities without notice to or consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to comply with any requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA;
(5) to make any change that would provide any additional benefit or
rights to the Securityholders or that does not adversely affect the rights
of any Securityholder; or
(6) to provide for issuance of the Exchange Securities or Private
Exchange Notes, if applicable, which will have terms substantially
identical in all material respects to the Initial Securities (except that,
with respect to the Exchange Securities, the transfer restrictions
contained in the Initial Securities will be modified or eliminated, as
appropriate), and which will be treated
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together with any outstanding Initial Securities, as a single
issue of securities.
Notwithstanding the above, the Trustee and the Company may not make
any change that adversely affects the rights of any Securityholders hereunder.
SECTION 9.02. With Consent of Holders. Subject to Section 6.07, the
Company, when authorized by resolution of its Board of Directors, and the
Trustee may amend this Indenture or the Securities with the written consent of
the Holders of a majority in aggregate principal amount of the Securities then
outstanding, and the Holders of a majority in aggregate principal amount of the
Securities then outstanding by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the
Securities.
Notwithstanding the provisions of this Section 9.02, without the
consent of each Securityholder affected, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(A) change the stated maturity of the principal of, or any
installment of interest on, any Security or reduce the principal amount
thereof, the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which any Security
or any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the stated
maturity thereof (or, in the case of redemption, on or after the
redemption date);
(B) reduce the percentage in principal amount of the outstanding
Securities, the consent of the Holders of which is required for any
supplemental indenture or the consent of the Holders of which is required
for any waiver of compliance with provisions of this Indenture or Defaults
hereunder and their consequences provided for in this Indenture;
(C) modify any of the provisions relating to supplemental indentures
requiring the consent of Holders or relating to the waiver of past
defaults or relating to the waiver of covenants, except to increase any
such percentage of outstanding Securities required for such actions or to
provide that certain other provisions of this Indenture cannot be modified
or waived without the consent of each Securityholder affected thereby;
-70-
(D) waive a default in the payment of the principal of or interest
on any Security or modify or waive the Company's obligation to repurchase
Securities under Section 4.14 or 4.15;
(E) except as otherwise permitted by the covenants contained in
Article V, consent to the assignment or transfer by the Company of any of
its rights and obligations under this Indenture;
(F) make any change in this Section 9.02 or Section 6.04 or 6.07; or
(G) change the time at which any Security must be redeemed or repaid
in accordance with the terms of this Indenture and the Securities.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof. Any amendment, waiver or consent shall be deemed effective
upon receipt by the Trustee of the necessary consents and shall not require
execution of any supplemental indenture to be effective.
After an amendment or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of each Security affected
thereby, with a copy to the Trustee, a notice briefly describing the amendment
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment, waiver or consent. Except as otherwise provided in this Section
9.02, the Holders of a majority in aggregate principal amount of the Securities
then outstanding may waive compliance in a particular instance by the Company
with any provisions of this Indenture or the Securities.
SECTION 9.03. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by such Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his Security
or portion of a Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective.
-71-
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder; provided that if such amendment, supplement or waiver
makes a change described in any of clauses (A) through (G) of Section 9.02, such
amendment, supplement or waiver shall bind each Holder of a Security who has
consented to it; and provided, further, that if notice of such amendment,
supplement or waiver is reflected on a Security that evidences the same debt as
the consenting Holder's Security, such amendment, supplement or waiver shall
bind every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 9.04. Record Date. The Company shall be permitted to set a
record date for purposes of determining the identity of Securityholders entitled
to vote or consent on any matter arising under this Indenture. In the Company's
sole discretion, the record date shall be either (i) the record date as
determined pursuant to ss. 316(c) of the TIA or (ii) such other record date as
the Company shall select.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment, supplement or waiver changes the terms of a Security, the Trustee may
(and, at the request of the Company, shall) require the Holder of the Security
to deliver it to the Trustee. The Trustee may (and, at the request of the
Company, shall) place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may (and, at the request of
the Company, shall) place an appropriate notation on any Security thereafter
authenticated. Alternatively, if the Company or the Trustee so determines, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
SECTION 9.06. Trustee May Sign Amendments, etc. The Trustee shall
sign any amendment, supplement or waiver authorized pursuant to this Article IX
if the amendment, supplement or waiver does not adversely affect the rights,
duties, liabilities or immunities of the Trustee. If it does, the Trustee may,
but need not, sign it. In signing or refusing to sign such amendment, supplement
or waiver, the Trustee shall be entitled to receive and, subject to TIA ss.
315(a) through (d), shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that such
amendment, supplement or waiver is authorized or permitted by this Indenture,
that it is not inconsistent herewith, and that it will be valid and binding upon
the Company in accordance with its terms.
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SECTION 9.07. Compliance with TIA. Every amendment or supplement to
this Indenture or Securities shall comply with the TIA as then in effect.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture is
subject to the provisions of the TIA that are required to be a part of this
Indenture, and shall, to the extent applicable, be governed by such provisions.
SECTION 10.02. Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person or mailed by first
class mail, postage prepaid, addressed as follows:
If to the Company, to:
Building Materials Corporation of America
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
If to the Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee
Administration
The parties hereto by notice to the other parties may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, postage prepaid, to a
Securityholder shall be mailed by first class mail to him at his address as it
appears on the Securities register maintained by the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed. Copies of any
such communication or notice to a Holder shall also be mailed to the Trustee.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency
-73-
with respect to other Securityholders. Except for a notice to the Trustee or the
Company, which is deemed given only when received, if a notice or communication
is mailed in the manner provided above, it is duly given, whether or not the
addressee receives it.
SECTION 10.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA ss. 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 4.05(b)) shall
include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statement or opinions contained in such
certificate or opinion are based;
(3) a brief statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been com-
-74-
plied with; provided that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar. The
Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 10.07. Governing Law. The laws of the State of New York
shall govern this Indenture and the Securities without regard to principles of
conflicts of law. The Trustee, the Company and the Securityholders 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 Indenture or the Securities.
SECTION 10.08. No Interpretation of Other Agreements. This Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Company or any of its Subsidiaries. No such indenture, loan or debt agreement
may be used to interpret this Indenture.
SECTION 10.09. No Recourse Against Others. No director, officer,
employee, stockholder or Affiliate, as such, of the Company shall have any
liability for any obligations of the Company under the Securities or this
Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability.
SECTION 10.10. Legal Holidays. A "Legal Holiday" is a Saturday,
Sunday or a day on which banking institutions in New York, New York are not
required to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday and interest shall not accrue for the intervening period.
SECTION 10.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 10.12. Duplicate Originals. The parties may sign any number
of copies of this Indenture. Each signed copy shall be an original, but all such
executed copies together represent the same agreement.
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SECTION 10.13. Separability. In case any provision in this Indenture
or in the Securities 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, and a Holder shall have no claim therefor against
any party hereto.
SECTION 10.14. Table of Contents, Headings, etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 10.15. Benefits of Indenture. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder, and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
-76-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
BUILDING MATERIALS CORPORATION
OF AMERICA
By: /s/ Xxxx X. Presto
-----------------------
Name: Xxxx X. Presto
Title: Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxxx X. Xxxx
-----------------------
Name: Xxxxxxx X. Xxxx
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR"); (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT IS
THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE OF THE NOTE EVIDENCED
HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR ANY "AFFILIATE" (AS DEFINED IN
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY WAS THE OWNER OF THE NOTE (THE
"RESTRICTION TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE
UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144
UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW YORK, AS TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF
THE NOTE EVIDENCED HEREBY BEFORE THE RESTRICTION TERMINATION DATE, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE BANK OF NEW YORK, AS
TRUSTEE, IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS
TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE
RESTRICTION TERMINATION DATE.
A-1
No. $________
CUSIP No.
BUILDING MATERIALS CORPORATION OF AMERICA
8 5/8% SENIOR NOTES DUE 2006
BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware corporation
(the "Company"), promises to pay to _____________________________, or registered
assigns, the principal sum of __________ Dollars on December 15, 2006.
Interest Payment Dates: June 15 and December 15, commencing June 15,
1997.
Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
BUILDING MATERIALS CORPORATION
OF AMERICA
By: ____________________________
Name:
Title:
Attest:
By: __________________________
Name:
Title:
Dated: December 9, 1996
Trustee's Certificate of Authentication
This is one of the 8 5/8% Senior
Notes due 2006 described in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Authorized Signatory
A-3
[FORM OF REVERSE SIDE INITIAL SECURITY]
BUILDING MATERIALS CORPORATION OF AMERICA
8 5/8% Senior Notes due 2006
1. Interest. BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware
corporation (the "Company"), promises to pay cash interest on the principal
amount of this Security at a rate of 8 5/8% per annum, payable on June 15 and
December 15 of each year (the "Interest Payment Date"), commencing June 15,
1997. The Company shall pay interest on overdue principal at the rate of 8 5/8%
per annum. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. The Holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts. The
Company, however, may pay principal and interest by a check payable in such
money. The Company may mail an interest check to the Holder's registered
address. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") or its agent will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without prior notice to any
Holder. The Company or any of its Subsidiaries or Affiliates may act in any such
capacity, except in certain circumstances.
4. Indenture. The Company issued the Securities under an Indenture
dated as of December 9, 1996 (the "Indenture") between the Company and the
Trustee. Capitalized terms used in this Security and not defined in this
Security shall have the meaning set forth in the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 as in effect on the
date of the Indenture. The Securities are subject to all such terms, and Holders
of Securities are referred to the Indenture and said Act for a statement of such
terms.
A-4
The Securities are senior unsecured obligations of the Company
limited to $100,000,000 aggregate principal amount. This Security is one of the
Initial Securities referred to in the Indenture. The Securities include the
Initial Securities, any Exchange Securities, as defined below, issued in
exchange for the Initial Securities pursuant to the Indenture, and the Private
Exchange Notes. The Initial Securities, the Exchange Securities, and the Private
Exchange Notes are treated as a single class of securities under the Indenture.
5. Redemption.
(a) Optional Redemption. The Company may redeem the Securities, in
whole or in part, at any time on or after December 15, 2001, on not less than 30
nor more than 60 days' prior notice in principal amounts of $1,000 or any
integral multiple of $1,000 at the following redemption prices (expressed in
percentages of principal amount) plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing:
Optional
Redemption
Period Percentage
------ ----------
December 15, 2001.................................................. 104.3125%
December 15, 2002.................................................. 102.8750%
December 15, 2003.................................................. 101.4375%
and thereafter, beginning December 15, 2004, at 100%.
In the event that, on or prior to the date which is three years
after the Issue Date, the Company consummates a public offering of the Common
Stock of the Company, the Company may, at its option, on not less than 30 nor
more than 60-days' notice, redeem, but only to the extent of such net cash
proceeds actually received by it, up to 50% of the principal amount of the
Securities then outstanding at a redemption price equal to 108.625% of the
principal amount thereof at the date of redemption, provided that no such
redemption may be made if and to the extent that, after giving effect thereto,
less than a majority of the principal amount of the Securities originally issued
would be outstanding. Any such redemption shall be made within 75 days of the
consummation of any such sale.
In the event a Change of Control occurs, the Company shall have the
option to redeem all, but not less than all, of the Securities, at a redemption
price equal to the sum of (x) 100% of the principal amount thereof plus accrued
and unpaid
A-5
interest thereon to the redemption date and (y) the Applicable Premium with
respect to each $1,000 principal amount of Securities so redeemed. Notice of any
redemption to be made pursuant to this paragraph must be given no later than 10
days after the Change of Control Payment Date, and redemption must be made
within 30 days of the date of such notice.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed pro rata, by lot
or by a method that complies with applicable legal and securities exchange
requirements.
(b) Mandatory Redemption. The Securities will not have the benefit
of any sinking fund.
6. Put Provisions. Upon a Change of Control, any Holder of
Securities will have the right to cause the Company to repurchase all or any
part of the Securities (in integral multiples of $1,000) of such Holder at a
repurchase price equal to 101% of the principal amount thereof (or, if lower,
the redemption price then in effect under the provisions described in paragraph
5(a)), plus accrued interest to the date of repurchase as provided in, and
subject to the terms of, the Indenture.
7. Notice of Redemption. Notice of redemptions pursuant to paragraph
5 will be mailed at least 30 days but not more than 60 days before the
applicable redemption date (or, if applicable at such other time as is provided
by paragraph 5(a)) to each Holder of Securities to be redeemed at the Holder's
registered address. If money sufficient to pay the redemption price and accrued
interest on all Securities to be redeemed on the redemption date is deposited
with the Paying Agent on the redemption date, on and after such date interest
will cease to accrue on such Securities or portions of them. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000.
8. Proceeds on Disposition of Assets. As described in Section 4.15
of the Indenture, the Company is required under certain circumstances to apply
the Net Cash Proceeds (or a portion thereof) from Asset Sales to offer to
purchase Securities at a price equal to 100% of the principal amount thereof
plus accrued interest thereon to the date of purchase.
9. Denominations, Transfer, Exchange. The Securities are in
registered form in denominations of $1,000 and integral multiples of $1,000. A
Holder may register the transfer or exchange of Securities as provided in the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture.
A-6
10. Persons Deemed Owners. The Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name the Security is
registered with the Registrar as the owner for all purposes.
11. Unclaimed Money. If money for the payment of interest or
principal remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After such time,
Holders entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
12. Discharge Prior to Maturity. Subject to certain conditions
described in Article VIII of the Indenture, if the Company deposits with the
Trustee money or U.S. Government Obligations sufficient to pay the principal of
and interest on the Securities to maturity, the Company will be discharged (to
the extent provided in the Indenture) from the Indenture and the Securities.
13. Amendments, Supplements and Waivers. Subject to certain
exceptions requiring the consent of each Holder affected as described in Article
IX of the Indenture, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Securities, and any existing Default may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Securities. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for the
assumption of the obligations of the Company to Holders or make any change that
does not adversely affect the rights of any Holder.
14. Restrictive Covenants. The Indenture imposes certain limitations
on, among other things, the ability of the Company to merge or consolidate with
any other Person or sell, lease or otherwise transfer all or substantially all
of its properties or assets, the ability of the Company or certain of its
Subsidiaries to make Restricted Payments and Restricted Investments and the
ability of the Company and certain of its Subsidiaries to incur Debt, create
Liens or engage in transactions with Affiliates or issue Preferred Stock, all
subject to certain limitations and qualifications described in the Indenture.
15. Successor Corporation. When a successor Person or other entity
assumes all the obligations of its predecessor under the Securities and the
Indenture, the predecessor Person will be released from those obligations.
A-7
16. Defaults and Remedies. The Securities have the Events of Default
as set forth in Section 6.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately,
except that in the case of an Event of Default arising from certain events of
bankruptcy, insolvency or reorganization relating to the Company, all
outstanding Securities shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The
Company must furnish quarterly compliance certificates to the Trustee.
17. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or any of its Affiliates,
and may otherwise deal with the Company or any of its Affiliates, as if it were
not the Trustee.
18. No Recourse Against Others. A director, officer, employee,
stockholder or Affiliate, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
19. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or any authenticating
agent.
20. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and has directed the Trustee to
use CUSIP numbers in notices of redemption as a convenience to Securityholders.
No representation is made as to the accuracy of such numbers either as printed
on the Securities or as contained in any notice of re-
A-8
demption and reliance may be placed only on the other identification numbers
placed thereon.
22. Registration Rights. Pursuant to the Registration Rights
Agreement among the Company and the Initial Purchasers of the Initial
Securities, the Company has certain obligations regarding an Exchange Offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for the Company's Series B 8 5/8% Senior Notes Due 2006 (the
"Exchange Securities"), which have been registered under the Securities Act, in
like principal amount and having identical terms as the Initial Securities. The
Holders of the Initial Securities shall be entitled to receive certain
additional interest payments in the event such exchange offer is not consummated
and upon certain other conditions, all pursuant to and in accordance with the
terms of the Registration Rights Agreement. Within five days after the
occurrence of an event so resulting in such additional interest payments, the
Company shall provide the Trustee with an Officers' Certificate describing such
event and providing the Trustee with all necessary details relating to the
payment of such interest, including, without limitation, the interest rate, the
effective date of such interest rate and the method of calculating interest.
A-9
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
Building Materials Corporation of America
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: Secretary
A-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
Date:__________________ Your Signature:_______________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:_______________________________
In connection with any transfer of any of the Securities evidenced
by this certificate occurring prior to the date that is three years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being transferred:
A-11
CHECK ONE BOX BELOW
(1) |_| to the Company or a subsidiary thereof; or
(2) |_| inside the United States to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act of 1933, as
amended; or
(3) |_| to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) that, prior to such transfer, furnishes to the Trustee
a signed letter containing certain representations and agreements
relating to the restrictions on transfer of the note evidenced
thereby (the form of which letter can be obtained from the
Trustee); or
(4) |_| outside the United States in compliance with Rule 903 or Rule
904 of Regulation S under the Securities Act of 1933, as amended; or
(5) |_| pursuant to the exemption from registration under the
Securities Act of 1933, as amended, provided by Rule 144 thereunder
(if available); or
(6) |_| pursuant to a registration statement which has been declared
effective under the Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered Holder thereof; provided that if box (3), (4) or (5) is
checked, the holder must, prior to such transfer, furnish to the Trustee such
certifications, legal opinions, or other information as the Company may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, as amended.
_____________________________
Signature Guarantee: Signature
____________________ _____________________________
Signature
______________________________________________________________________________
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of this Security purchased by the
Company pursuant to Section 4.14 or 4.15 of the Indenture, check the box:
|_|
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.14 or 4.15 of the Indenture, state the
Principal Amount: $
Date:____________________ Your Signature:___________________________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:________________________________________________________
(Signature must be guaranteed)
A-13
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE OR PRIVATE EXCHANGE NOTE(a)]
No.
$________
CUSIP No.
BUILDING MATERIALS CORPORATION OF AMERICA
SERIES B 8 5/8% SENIOR NOTES DUE 2006
BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware corporation
(the "Company"), promises to pay to
, or registered assigns, the principal sum of Dollars on
December 15, 2006.
Interest Payment Dates: June 15 and December 15, commencing June 15,
1997.
Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
----------
(a) If the certificate is a Private Exchange Note issued pursuant to the
Registration Rights Agreement in a Private Exchange (as defined therein),
add the restricted securities legend from Exhibit A to this Indenture and
replace the Assignment Form included in this Exhibit B with the Assignment
Form included in Exhibit A.
B-1
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
BUILDING MATERIALS CORPORATION
OF AMERICA
By: ____________________________
Name:
Title:
Attest:
By: __________________________
Name:
Title:
Dated:
Trustee's Certificate of Authentication
This is one of the Series B 8 5/8%
Senior Notes due 2006 [Private Exchange
8 5/8% Senior Notes due 2006] described
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Authorized Signatory
B-2
[FORM OF REVERSE SIDE EXCHANGE SECURITY AND PRIVATE EXCHANGE NOTE]
BUILDING MATERIALS CORPORATION OF AMERICA
Series B 8 5/8% Senior Notes due 2006
Private Exchange 8 5/8% Senior Notes due 2006
1. Interest. BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware
corporation (the "Company"), promises to pay cash interest on the principal
amount of this Security at a rate of 8 5/8% per annum, payable on June 15 and
December 15 of each year (the "Interest Payment Date"), commencing June 15,
1997. The Company shall pay interest on overdue principal at the rate of 8 5/8%
per annum. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Company shall pay interest on the
Securities (except defaulted interest) to the persons who are the registered
Holders at the close of business on the Record Date immediately preceding the
Interest Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Record Date. The Holder must
surrender this Security to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts. The
Company, however, may pay principal and interest by a check payable in such
money. The Company may mail an interest check to the Holder's registered
address. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar. Initially, The Bank of New York (the
"Trustee") or its agent will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without prior notice to any
Holder. The Company or any of its Subsidiaries or Affiliates may act in any such
capacity, except in certain circumstances.
4. Indenture. The Company issued the Securities under an Indenture
dated as of December 9, 1996 (the "Indenture") between the Company and the
Trustee. Capitalized terms used in this Security and not defined in this
Security shall have the meaning set forth in the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 as in effect on the
date of the Indenture. The Securities are subject
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to all such terms, and Holders of Securities are referred to the Indenture and
said Act for a statement of such terms.
The Securities are senior unsecured obligations of the Company
limited to $100,000,000 aggregate principal amount. This Security is one of the
[Exchange Securities] [Private Exchange Notes] referred to in the Indenture. The
Securities include the Initial Securities, any Exchange Securities, issued in
exchange for the Initial Securities pursuant to the Indenture, and the Private
Exchange Notes. The Initial Securities, the Exchange Securities, and the Private
Exchange Notes are treated as a single class of securities under the Indenture.
5. Redemption.
(a) Optional Redemption. The Company may redeem the Securities, in
whole or in part, at any time on or after December 15, 2001, on not less than 30
nor more than 60 days' prior notice in principal amounts of $1,000 or any
integral multiple of $1,000 at the following redemption prices (expressed in
percentages of principal amount) plus accrued and unpaid interest, if any, to
the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on the relevant interest payment date), if
redeemed during the 12-month period commencing:
Optional
Redemption
Period Percentage
---------- ----------
December 15, 2001........................................ 104.3125%
December 15, 2002........................................ 102.8750%
December 15, 2003........................................ 101.4375%
and thereafter, beginning December 15, 2004, at 100%.
In the event that, on or prior to the date which is three years
after the Issue Date, the Company consummates a public offering of the Common
Stock of the Company, the Company may, at its option, on not less than 30 nor
more than 60-days' notice, redeem, but only to the extent of such net cash
proceeds actually received by it, up to 50% of the principal amount of the
Securities then outstanding at a redemption price equal to 108.625% of the
principal amount thereof at the date of redemption, provided that no such
redemption may be made if and to the extent that, after giving effect thereto,
less than a majority of the principal amount of the Securities originally issued
would be outstanding. Any such redemption shall be made within 75 days of the
consummation of any such sale.
B-4
In the event a Change of Control occurs, the Company shall have the
option to redeem all, but not less than all, of the Securities, at a redemption
price equal to the sum of (x) 100% of the principal amount thereof plus accrued
and unpaid interest thereon to the redemption date and (y) the Applicable
Premium with respect to each $1,000 principal amount of Securities so redeemed.
Notice of any redemption to be made pursuant to this paragraph must be given no
later than 10 days after the Change of Control Payment Date, and redemption must
be made within 30 days of the date of such notice.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities or portions thereof to be redeemed pro rata, by lot
or by a method that complies with applicable legal and securities exchange
requirements.
(b) Mandatory Redemption. The Securities will not have the benefit
of any sinking fund.
6. Put Provisions. Upon a Change of Control, any Holder of
Securities will have the right to cause the Company to repurchase all or any
part of the Securities (in integral multiples of $1,000) of such Holder at a
repurchase price equal to 101% of the principal amount thereof (or, if lower,
the redemption price then in effect under the provisions described in paragraph
5(a)), plus accrued interest to the date of repurchase as provided in, and
subject to the terms of, the Indenture.
7. Notice of Redemption. Notice of redemptions pursuant to paragraph
5 will be mailed at least 30 days but not more than 60 days before the
applicable redemption date (or, if applicable at such other time as is provided
by paragraph 5(a)) to each Holder of Securities to be redeemed at the Holder's
registered address. If money sufficient to pay the redemption price and accrued
interest on all Securities to be redeemed on the redemption date is deposited
with the Paying Agent on the redemption date, on and after such date interest
will cease to accrue on such Securities or portions of them. Securities in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000.
8. Proceeds on Disposition of Assets. As described in Section 4.15
of the Indenture, the Company is required under certain circumstances to apply
the Net Cash Proceeds (or a portion thereof) from Asset Sales to offer to
purchase Securities at a price equal to 100% of the principal amount thereof
plus accrued interest thereon to the date of purchase.
9. Denominations, Transfer, Exchange. The Securities are in
registered form in denominations of $1,000 and integral multiples of $1,000. A
Holder may register the transfer or
B-5
exchange of Securities as provided in the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture.
10. Persons Deemed Owners. The Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name the Security is
registered with the Registrar as the owner for all purposes.
11. Unclaimed Money. If money for the payment of interest or
principal remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After such time,
Holders entitled to the money must look to the Company for payment unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
12. Discharge Prior to Maturity. Subject to certain conditions
described in Article VIII of the Indenture, if the Company deposits with the
Trustee money or U.S. Government Obligations sufficient to pay the principal of
and interest on the Securities to maturity, the Company will be discharged (to
the extent provided in the Indenture) from the Indenture and the Securities.
13. Amendments, Supplements and Waivers. Subject to certain
exceptions requiring the consent of each Holder affected as described in Article
IX of the Indenture, the Indenture or the Securities may be amended or
supplemented with the consent of the Holders of at least a majority in principal
amount of the then outstanding Securities, and any existing Default may be
waived with the consent of the Holders of a majority in principal amount of the
then outstanding Securities. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for the
assumption of the obligations of the Company to Holders or make any change that
does not adversely affect the rights of any Holder.
14. Restrictive Covenants. The Indenture imposes certain limitations
on, among other things, the ability of the Company to merge or consolidate with
any other Person or sell, lease or otherwise transfer all or substantially all
of its properties or assets, the ability of the Company or certain of its
Subsidiaries to make Restricted Payments and Restricted Investments and the
ability of the Company and certain of its Subsidiaries to incur Debt, create
Liens or engage in transactions with Affiliates or issue Preferred Stock, all
subject to certain limitations and qualifications described in the Indenture.
B-6
15. Successor Corporation. When a successor Person or other entity
assumes all the obligations of its predecessor under the Securities and the
Indenture, the predecessor Person will be released from those obligations.
16. Defaults and Remedies. The Securities have the Events of Default
as set forth in Section 6.01 of the Indenture. Subject to certain limitations in
the Indenture, if an Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Securities may declare all the Securities to be due and payable immediately,
except that in the case of an Event of Default arising from certain events of
bankruptcy, insolvency or reorganization relating to the Company, all
outstanding Securities shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity satisfactory to
it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power. The
Company must furnish quarterly compliance certificates to the Trustee.
17. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or any of its Affiliates,
and may otherwise deal with the Company or any of its Affiliates, as if it were
not the Trustee.
18. No Recourse Against Others. A director, officer, employee,
stockholder or Affiliate, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
19. Authentication. This Security shall not be valid until
authenticated by the manual signature of the Trustee or any authenticating
agent.
20. Abbreviations. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification
B-7
Procedures, the Company has caused CUSIP numbers to be printed on the Securities
and has directed the Trustee to use CUSIP numbers in notices of redemption as a
convenience to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in any notice
of Redemption and reliance may be placed only on the other identification
numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Request may be made to:
Building Materials Corporation of America
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: Secretary
B-8
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date:__________________________ Your Signature:_______________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:_________________________
B-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of this Security purchased by the
Company pursuant to Section 4.14 or 4.15 of the Indenture, check the box:
|_|
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.14 or 4.15 of the Indenture, state the
Principal Amount: $____________________
Date:________________ Your Signature:_________________________________
(Sign exactly as your name appears
on the other side of the Security)
Signature Guarantee:____________________________________________________
(Signature must be guaranteed)
B-10
EXHIBIT C
[FORM OF LEGEND FOR BOOK-ENTRY SECURITIES]
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
FORM OF LETTER TO BE DELIVERED BY ACCREDITED INVESTORS
The undersigned is delivering this letter in connection with an
offering of 8 5/8% Senior Notes Due 2006 (the "Notes") of Building Materials
Corporation of America (the "Company"), all as described in the Offering
Memorandum (the "Offering Memorandum") relating to the offering.
The undersigned hereby confirms that:
(i) the undersigned is an "accredited investor" within the meaning
of Rule 501(a)(1), (2) or (3) under the Securities Act of 1933, as amended
(the "Securities Act"), or an entity in which all of the equity owners are
accredited investors within the meaning of Rule 501(a)(1), (2) or (3)
under the Securities Act (an "Institutional Accredited Investor");
(ii) any purchase of Notes by the undersigned will be for the
undersigned's own account or for the account of one or more other
Institutional Accredited Investors or as fiduciary for the account of one
or more trusts, each of which is an "accredited investor" within the
meaning of Rule 501(a)(7) under the Securities Act and for each of which
we exercise sole investment discretion or (B) we are a "bank," within the
meaning of Section 3(a)(2) of the Securities Act, or a "savings and loan
association" or other institution described in Section 3(a)(5)(A) of the
Securities Act that is acquiring Notes as fiduciary for the account of one
or more institutions for which we exercise sole investment discretion;
(iii) in the event that the undersigned purchases any notes, it will
acquire Notes having a minimum principal amount of not less than $250,000
for the undersigned's own account or for any separate account for which
the undersigned is acting;
(iv) the undersigned has such knowledge and experience in financial
and business matters that the undersigned is capable of evaluating the
merits and risks of purchasing Notes;
(v) the undersigned is not acquiring Notes with a view to
distribution thereof or with any present intention of offering or selling
Notes, except as permitted below; provided that the disposition of the
undersigned's property and property of any accounts for which the
undersigned is
D-1
acting as fiduciary shall remain at all times within the undersigned's
control; and
(vi) the undersigned has received a copy of the Offering Memorandum
and acknowledges that the undersigned has had access to such financial and
other information, and has been afforded the opportunity to ask such
questions of representatives of the Company and receive answers thereto,
as the undersigned deems necessary in connection with the undersigned's
decision to purchase Notes.
The undersigned understands that the Notes are being offered in a
transaction not involving any public offering within the United States within
the meaning of the Securities Act and that the Notes have not been registered
under the Securities Act or any applicable state securities laws, and the
undersigned agrees, on the undersigned's own behalf and on behalf of each
account for which the undersigned acquires any Notes, that if in the future the
undersigned decides to resell or otherwise transfer only (a) to the Company or
any subsidiary thereof, (b) to a person who is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (c) to an Institutional Accredited Investor that,
prior to such transfer, furnishes to the trustee (or transfer agent, as the case
may be) for such Notes a signed letter containing certain representations and
agreements relating to the restrictions on transfer of such Notes (the form of
which letter can be obtained from such trustee, or transfer agent, as the case
may be), (d) outside the United States in a transaction meeting the requirements
of Regulation S under the Securities Act, (e) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if applicable) or
(f) pursuant to a registration statement which has been declared effective under
the Securities Act. The undersigned agrees that any such transfer of Notes
referred to in this paragraph shall be in accordance with applicable securities
laws of any State of the United States or any other applicable jurisdiction and
in accordance with the legends set forth on the Notes. The undersigned
understands that the register and transfer agent for the Notes will not be
required to accept for registration or transfer any Notes, except upon
presentation of evidence satisfactory to the Company that the foregoing
restrictions on transfer have been complied with. The undersigned further
understands that any Notes will be in the form of definitive physical
certificates and that such certificates will bear a legend (unless the sale of
the Notes has been registered under the Securities Act) reflecting the substance
of this paragraph.
The undersigned acknowledges that the Company, others and you will
rely upon the undersigned's confirmations, acknowledgements and agreements set
forth herein, and the undersigned
D-2
agrees to notify you promptly in writing if any of the undersigned's
representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
______________________________________
(Name of Purchaser)
By:___________________________________
Name:
Title:
Address:
D-3
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this indenture to
be duly executed, all as of the date first written above.
[ISSUER]
as Issuer
By:_________________________________
Name:
Title:
[TRUSTEE]
as Trustee
By:_________________________________
Name:
Title:
D-4
