EXECUTION COPY
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BUILDING MATERIALS CORPORATION OF AMERICA
8% Senior Notes due 2008
and
Series B 8% Senior Notes due 2008
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INDENTURE
Dated as of December 3, 1998
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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)(l)........................................................................... 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.
TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
SECTION 1.01. DEFINITIONS.........................................................................................1
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..................................................17
SECTION 1.03. RULES OF CONSTRUCTION..............................................................................18
ARTICLE II. THE SECURITIES.......................................................................................18
SECTION 2.01. FORM AND DATING....................................................................................18
SECTION 2.02. EXECUTION AND AUTHENTICATION; AGGREGATE PRINCIPAL AMOUNT...........................................19
SECTION 2.03. REGISTRAR AND PAYING AGENT.........................................................................20
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST................................................................20
SECTION 2.05. SECURITYHOLDER LISTS...............................................................................20
SECTION 2.06. TRANSFER AND EXCHANGE..............................................................................21
SECTION 2.07. REPLACEMENT SECURITIES.............................................................................22
SECTION 2.08. OUTSTANDING SECURITIES.............................................................................23
SECTION 2.09. TREASURY SECURITIES................................................................................23
SECTION 2.10. TEMPORARY SECURITIES...............................................................................23
SECTION 2.11. CANCELLATION.......................................................................................23
SECTION 2.12. DEFAULTED INTEREST.................................................................................24
SECTION 2.13. CUSIP NUMBER.......................................................................................24
SECTION 2.14. DEPOSIT OF MONEYS..................................................................................24
ARTICLE III. REDEMPTION..........................................................................................24
SECTION 3.01. NOTICES TO TRUSTEE.................................................................................24
SECTION 3.02. [RESERVED].........................................................................................24
SECTION 3.03. NOTICE OF REDEMPTION...............................................................................25
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.....................................................................25
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE........................................................................25
SECTION 3.06. SECURITIES REDEEMED IN PART........................................................................25
ARTICLE IV. COVENANTS............................................................................................26
SECTION 4.01. PAYMENT OF SECURITIES..............................................................................26
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY....................................................................26
SECTION 4.03. CORPORATE EXISTENCE................................................................................26
SECTION 4.04. PAYMENT OF TAXES AND OTHER CLAIMS..................................................................26
SECTION 4.05. COMPLIANCE CERTIFICATES............................................................................27
SECTION 4.06. SECURITIES AND EXCHANGE COMMISSION REPORTS.........................................................27
SECTION 4.07. WAIVER OF STAY, EXTENSION OR USURY LAWS............................................................28
SECTION 4.08. MAINTENANCE OF PROPERTIES..........................................................................28
SECTION 4.09. LIMITATION ON DEBT AND PREFERRED STOCK OF THE COMPANY AND ITS SUBSIDIARIES.........................28
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS AND RESTRICTED INVESTMENTS.......................................30
SECTION 4.11. LIMITATION ON LIENS................................................................................32
SECTION 4.12. LIMITATION ON TRANSACTIONS WITH AFFILIATES.........................................................33
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.......................35
SECTION 4.14. CHANGE OF CONTROL..................................................................................36
SECTION 4.15. LIMITATION ON ASSET SALES..........................................................................38
SECTION 4.16. RESTRICTION ON TRANSFER OF CERTAIN ASSETS TO SUBSIDIARIES..........................................40
SECTION 4.17. INVESTMENT COMPANY ACT.............................................................................40
SECTION 4.18. CONSENTS, ETC......................................................................................40
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ARTICLE V. SUCCESSOR CORPORATION.................................................................................41
SECTION 5.01. WHEN THE COMPANY MAY MERGE, ETC....................................................................41
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED..................................................................41
ARTICLE VI. DEFAULTS AND REMEDIES................................................................................42
SECTION 6.01. EVENTS OF DEFAULT..................................................................................42
SECTION 6.02. ACCELERATION.......................................................................................43
SECTION 6.03. OTHER REMEDIES.....................................................................................43
SECTION 6.04. WAIVER OF PAST DEFAULTS............................................................................44
SECTION 6.05. CONTROL BY MAJORITY................................................................................44
SECTION 6.06. LIMITATION ON REMEDIES.............................................................................44
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT...............................................................44
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.........................................................................45
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM...................................................................45
SECTION 6.10. PRIORITIES.........................................................................................45
SECTION 6.11. UNDERTAKING FOR COSTS..............................................................................45
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES.................................................................46
ARTICLE VII. TRUSTEE.............................................................................................46
SECTION 7.01. RIGHTS OF TRUSTEE..................................................................................46
SECTION 7.02. INDIVIDUAL RIGHTS OF TRUSTEE.......................................................................47
SECTION 7.03. MONEY HELD IN TRUST................................................................................47
SECTION 7.04. TRUSTEE'S DISCLAIMER...............................................................................47
SECTION 7.05. NOTICE OF DEFAULTS.................................................................................47
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS......................................................................47
SECTION 7.07. COMPENSATION AND INDEMNITY.........................................................................47
SECTION 7.08. REPLACEMENT OF TRUSTEE.............................................................................48
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC...................................................................49
SECTION 7.10. ELIGIBILITY: DISQUALIFICATION......................................................................49
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE COMPANY..............................................49
SECTION 7.12. DUTIES OF TRUSTEE..................................................................................50
SECTION 7.13. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY............................................50
ARTICLE VIII. DISCHARGE OF INDENTURE; DEFEASANCE.................................................................51
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES DEFEASANCE....................................................51
SECTION 8.02. CONDITIONS TO DEFEASANCE...........................................................................52
SECTION 8.03. APPLICATION OF TRUST MONEY.........................................................................53
SECTION 8.04. REPAYMENT TO COMPANY...............................................................................53
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS...............................................................53
SECTION 8.06. REINSTATEMENT......................................................................................53
ARTICLE IX. AMENDMENTS, SUPPLEMENTS AND WAIVERS..................................................................54
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.........................................................................54
SECTION 9.02. WITH CONSENT OF HOLDERS............................................................................54
SECTION 9.03. REVOCATION AND EFFECT OF CONSENTS..................................................................55
SECTION 9.04. RECORD DATE........................................................................................56
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES..............................................................56
SECTION 9.06. TRUSTEE MAY SIGN AMENDMENTS, ETC...................................................................56
SECTION 9.07. COMPLIANCE WITH TIA................................................................................56
ARTICLE X. MISCELLANEOUS.........................................................................................57
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SECTION 10.01. TRUST INDENTURE ACT OF 1939.......................................................................57
SECTION 10.02. NOTICES...........................................................................................57
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.......................................................57
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT................................................58
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.....................................................58
SECTION 10.06. RULES BY TRUSTEE, PAYING AGENT, REGISTRAR.........................................................58
SECTION 10.07. GOVERNING LAW.....................................................................................58
SECTION 10.08. NO INTERPRETATION OF OTHER AGREEMENTS.............................................................58
SECTION 10.09. NO RECOURSE AGAINST OTHERS........................................................................59
SECTION 10.10. LEGAL HOLIDAYS....................................................................................59
SECTION 10.11. SUCCESSORS........................................................................................59
SECTION 10.12. DUPLICATE ORIGINALS...............................................................................59
SECTION 10.13. SEPARABILITY......................................................................................59
SECTION 10.14. TABLE OF CONTENTS, HEADINGS, ETC..................................................................59
SECTION 10.15. BENEFITS OF INDENTURE.............................................................................59
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INDENTURE, dated as of December 3, 1998, 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%
Senior Notes due 2008 (the "Initial Securities") and the Company's Series B 8%
Senior Notes due 2008 (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)(l), (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 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" have meanings correlative to the
foregoing. For the avoidance of doubt, ISP and its Affiliates (so long as they
are under common control with the Company) shall be deemed to be 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 the
maturity date of the Security to the applicable date of purchase 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 purchase 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 Moody's and have not been placed
on credit watch by Moody's 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 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
2
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 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.
"Cedel" means Cedel Bank, S.A.
"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 own any Voting Stock of a corporation (the "specified
3
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 a majority of the Board of Directors of
Parent or the Company; or
(iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the
shareholders of the Company including predecessors, was approved by a
vote of a majority of the directors of the Company then still in
office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved)
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.
"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
4
(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 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 interest expense related to
Non-Recourse Debt) 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).
5
"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 or 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 (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 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000, 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 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Credit Agreement" means the credit agreement, dated as of
August 29, 1997, among the Company, the Lenders party thereto and The Bank of
New York, as administrative agent, as amended and supplemented from time to
time.
6
"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.
"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 Series B 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
7
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.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"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.
"GAF" means GAF 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.
"GFC" means GAF Fiberglass Corporation, a Delaware
corporation, and its successors.
"G-I Holdings" means G-I Holdings Inc., a Delaware
corporation, and its successors.
"Glass Fiber Contract" means the supply agreement effective
as of January 1, 1997 between GFC and the Company.
"Global Security" means a Security evidencing all or a part
of the Securities to be issued as Book-Entry Securities, including a
Regulation S Global Security, issued to the Depository in accordance with
Section 2.02 and bearing the legend prescribed in Exhibit C.
8
"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) 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.
"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. and
Chase Securities Inc.
"Initial Securities" has the meaning assigned to that term
in the preambles to this Indenture.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"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.
9
"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 December 3, 1998.
"Legal Holiday" has the meaning set forth in Section 10.10.
"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 credit support (including any
undertaking, agreement or instrument which would
10
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
November 24, 1998, 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 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.
11
"Participant" means with respect to the Depositary,
Euroclear or Cedel, a Person who has an account with the Depositary, Euroclear
or Cedel, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Cedel).
"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, 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;
12
(9) Liens encumbering deposits made in the ordinary course
of business to secure non-delinquent 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 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.
13
"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.
"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 3, 1998, between the Company and the Initial
Purchasers.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Security" means a global security
substantially in the form of Exhibit A hereto bearing the legend prescribed in
Exhibit C and deposited with or on behalf of the Depository and registered in
the name of the Depository or its nominee and issued in a denomination equal
to the outstanding principal amount of the Securities initially resold by the
Initial Purchasers in reliance on Rule 903 of Regulation S.
14
"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 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 Period" means the 40-day restricted period
referred to in Regulation S.
"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 Statements" 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
15
period (each such determination being made in accordance with GAAP).
"Defaulting 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.
"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 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.
16
"Trust Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of such Person's knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"2005 Notes" means the Company's Series B 7 3/4% Senior
Notes due 2005.
"2006 Notes" means the Company's Series B 8 5/8% Senior
Notes due 2006.
"2007 Notes" means the Company's 8% Senior Notes due 2007
and the Company's Series B 8% Senior Notes due 2007.
"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.
"U.S. Person" means a U.S. Person as defined in Rule 902
under the Securities Act.
"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.
"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
17
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;
(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, 1997.
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
18
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 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 $155,000,000, 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 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 $155,000,000, 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.
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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.
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 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
20
such date as the Trustee may reasonably require of the names and addresses of
Securityholders, and the Company shall otherwise comply with TIA Section 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; and provided further that prior to the expiration of the Restricted
Period, transfers of book-entry interests in the Regulation S Global Security
may not be made to a U.S. Person or for the account or benefit of a U.S.
Person (other than an Initial Purchaser). 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 Institutional Buyer, an
Accredited Investor or a Holder pursuant to Regulation S, 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
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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 Company notifies the Trustee that the Depository 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 90
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.
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.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank
shall be applicable to transfers of book-entry interests in the Regulation S
Global Securities that are held by Participants through Euroclear or Cedel
Bank.
The Company shall not have any liability to any Person
relating to (i) the performance by the Depositary, Euroclear, Cedel or any of
their respective direct or indirect Participants under the rules and
procedures governing, the Depository, Euroclear or Cedel including with
respect to transferring book-entry interests in the Securities, or (ii)
maintaining, supervising or reviewing any records of such entities relating to
the Securities.
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
22
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 canceled 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
direction, waiver or consent, only Securities which a Trust Officer of 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.
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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 one or more "CUSIP" numbers. 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 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 a 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.
Section 3.02. [Reserved]
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Section 3.03. Notice of Redemption. At such 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) 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
(F) 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.
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) and (C) 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.
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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.
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 (other than Non-Recourse
Subsidiaries) to, pay or discharge or
26
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 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
Sections 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 Section 314(a).
27
(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 the 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 conclusively and 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 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 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,
28
(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;
(2) (i) Debt of the Company Issued to and held by a
Wholly-Owned Recourse Subsidiary of the Company and (ii) Debt of a
Recourse 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 Debt (other than to the Company or to
a Wholly-Owned Recourse Subsidiary of the Company) shall be deemed,
in each case, to constitute the Issuance of such Debt by the Company
or such Subsidiary;
(3) Debt the proceeds of which are used to acquire
assets of the Company and its Subsidiaries; 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
$80,000,000;
(4) Acquired Debt;
(5) (x) Debt outstanding on the Issue Date (including
the Deferred Coupon Notes, the 2005 Notes, the 2006 Notes and the
2007 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;
(6) 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;
29
(7) Debt under the Credit Agreement or any
Refinancing thereof; provided that the aggregate outstanding amount
thereunder does not at any time exceed $150,000,000;
(8) 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
(9) Debt (other than Debt identified in clauses (1)
through (8) above) in an aggregate principal amount outstanding at
any one time not to exceed $100,000,000.
(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 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
30
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) 75% 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;
(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) $60,000,000.
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.
31
(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
(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
improvements or additions 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
32
(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 $40,000,000;
(4) Liens to secure Refinancing of any Debt secured
by Xxxxx described in clauses (l)-(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;
(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 $60,000,000.
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
33
the provision of management services of 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 $10,000,000, 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 $35,000,000 (with the value of any non-cash 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 each member of 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 has a 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 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
34
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 transactions 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 Agreement or any Refinancings thereof (or, if such
agreement is not outstanding, under the 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 forth in
writing and are at least as favorable to the Company as those
available 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 indentures governing the
Deferred Coupon Notes, the 2005 Notes, the 2006 Notes and the 2007
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;
(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 Agreement, the Receivables Financing
Agreement or other Debt existing on the Issue Date; and
(7) any Refinancing of the Credit Agreement, 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, 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
Xxxxxx'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:
36
(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 of control offer is being made
pursuant to this Section 4.14 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 Xxxxxx 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 purchase
any securities not tendered as provided therein.
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
37
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 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 indentures governing the Deferred Coupon Notes, the 2005
Notes, the 2006 Notes and 2007 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, and then offer to purchase any outstanding 2006 Notes, in
a tender offer at a redemption price equal to 100% of the principal
amount thereof plus accrued interest thereon to the date of purchase,
and then offer to purchase any outstanding 2007 Notes, in a tender
offer at a redemption price equal to 100% of the principal amount
thereof plus accrued interest thereon to the date of repurchase, and
then offer to purchase any outstanding 2005 Notes, in a tender offer
at a redemption price equal to 100% of the
38
principal amount thereof plus accrued interest thereon to the date of
purchase, 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 $25,000,000;
provided that (i) the Company and its Subsidiaries may retain up to $7,000,000
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 adjustments 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
39
of the Securities the Holder delivered for purchase and a statement
that such Xxxxxx 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 accordance with item (b)(l) 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
Non-Recourse 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.
40
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 properties and assets
(either in one transaction or in a 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 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
41
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;
(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
42
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.
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.
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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.
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
respective dates, shall not be impaired or affected without the consent of
such Holder.
44
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;
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.
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
45
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
and expenses, 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):
(A) The Trustee may conclusively rely on any document
whether in its original or facsimile form 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 and/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
and/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 security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
46
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 or
Affiliate (including without limitation Chase Securities Inc., one of the
Initial Purchasers) 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. 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 actually known to a Trust Officer of 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 withholding notice is in the interests of the Holders.
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 Section 313(a) if required by TIA Section
313(a). The Trustee also shall comply with TIA Sections 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 expenses shall also include any taxes or other reasonable
costs incurred by the trust created under Section 8.01.
47
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 amount of the
outstanding Securities may remove the Trustee by so notifying a Trust Officer
of 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.
48
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, at the expense of the Company, 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 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 Xxxxxx, 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)(l). 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.
49
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
(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).
Section 7.13. Trustee's Application for Instructions from
the Company. Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this
50
Indenture and the date on and/or after which such action shall be taken or
such omission shall be effective. The Trustee shall not be liable for any
action taken by, or omission of, the Trustee in accordance with a proposal
included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the
date any officer of the Company actually receives such application, unless any
such officer shall have consented in writing to any earlier date) unless prior
to taking any such action (or the effective date in the case of an omission),
the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
ARTICLE VIII.
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Liability on Securities
Defeasance. (a) When (i) the Company delivers to the Trustee 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.
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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 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 (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
52
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 and paragraph 5(a) of the Securities (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 otherwise 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.
53
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
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
54
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;
(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;
(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
55
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.
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.
Section 9.07. Compliance with TIA. Every amendment or
supplement to this Indenture or Securities shall comply with the TIA as then
in effect.
56
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 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).
57
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 complied 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.
58
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.
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.
59
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:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------------
Name:
Title:
60
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
THE SECURITY (OR ITS PREDECESSORS) EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE 'SECURITIES ACT'), AND THE
SECURITY EVIDENCED HEREBY OR ANY INTEREST OR PARTICIPATION HEREIN MAY NOT BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF AGREES (A) TO OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER
THIS SECURITY ONLY (1) TO THE COMPANY, (2) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (3) TO A
PERSON IT REASONABLY BELIEVES IS A 'QUALIFIED INSTITUTIONAL BUYER' AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, (5) TO AN INSTITUTIONAL
'ACCREDITED INVESTOR' (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT OR (6) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (AND IN THE CASE OF A
TRANSFER PURSUANT TO CLAUSE (4), (5) OR (6), BASED ON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
A-1
No. $_______________
CUSIP No. _______
BUILDING MATERIALS CORPORATION OF AMERICA
8% SENIOR NOTES DUE 2008
BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware
corporation (the "Company"), promises to pay to
, or registered assigns, the principal sum of
Dollars on December 1, 2008.
Interest Payment Dates: June 1 and December 1, commencing
June 1, 1999.
Record Dates: May 15 and November 15.
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:
By:
--------------------------------------
Name:
Title:
Dated: ______________, 1998
Trustee's Certificate of Authentication
This is one of the 8% Senior
Notes due 2008 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% Senior Notes due 2008
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% per annum, payable on June 1
and December 1 of each year (the "Interest Payment Date"), commencing June 1,
1999. The Company shall pay interest on overdue principal at the rate of 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 canceled 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 3, 1998 (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.
The Securities are senior unsecured obligations of the
Company limited to $155,000,000 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.
A-4
5. Redemption.
(a) Optional Redemption.
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.
(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, 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 such 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.
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, provide certain
certifications and legal opinions as described herein 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.
A-5
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.
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
A-6
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
redemption 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% Senior Notes Due 2008 (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-7
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-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:
---------------------------------------
In connection with any transfer of any of the Securities evidenced by this
certificate occurring prior to the date that is two 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-9
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 50l(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 to a non-U.S. Person in
compliance with 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, (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-10
OPTIONS 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-11
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE OR PRIVATE EXCHANGE NOTE*]
No. $_______________
CUSIP No. _______
BUILDING MATERIALS CORPORATION OF AMERICA
SERIES B 8% SENIOR NOTES DUE 2008
BUILDING MATERIALS CORPORATION OF AMERICA, a Delaware
corporation (the "Company"), promises to pay to
, or registered assigns, the principal sum of Dollars
on December 1, 2008.
Interest Payment Dates: June 1 and December 1, commencing
June 1, 1999.
Record Dates: May 15 and November 15.
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.
--------
* 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:
By:
-----------------------------------
Name:
Title:
Dated:
Trustee's Certificate of Authentication
This is one of the Series B 8%
Senior Notes due 2008 [Private Exchange
8% Senior Notes due 2008] 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% Senior Notes due 2008
Private Exchange 8% Senior Notes due 2008
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% per annum, payable on June 1
and December 1 of each year (the "Interest Payment Date"), commencing June 1,
1999. The Company shall pay interest on overdue principal at the rate of 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 canceled 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 3, 1998 (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.
The Securities are senior unsecured obligations of the
Company limited to $155,000,000 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.
B-3
5. Redemption.
(a) Optional Redemption. 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.
(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, 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 such 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.
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, provide certain
certifications and legal opinions as described herein 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
B-4
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.
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
B-5
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
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-6
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-7
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-8
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% Senior Notes Due 2008 (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 50l(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) (A) 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 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
D-1
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 were 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 any Notes (A) such
resale or transfer will be only (1) to the Company, (2) pursuant to a
registration statement which has been declared effective under the Securities
Act, (3) to a person it reasonably believes is a 'Qualified Institutional
Buyer' as defined in Rule 144A under the Securities Act ("Rule 144A") in a
transaction meeting the requirements of Rule 144A, (4) pursuant to offers and
sales to Non-U.S. Persons that occur outside the United States in a
transaction meeting the requirements of Rule 904 under the Securities Act, (5)
to an institutional 'Accredited Investor' (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) in a transaction meeting the requirements
of Rule 144A under the Securities Act or (6) pursuant to any other available
exemption from the registration requirements under the Securities Act (and in
the case of a transfer pursuant to clause (4), (5) or (6), based on an opinion
of counsel if the Company so requests), subject in each of the foregoing cases
to applicable securities laws of any state of the United States or any other
applicable jurisdiction and (B) that it will, and each subsequent holder is
required to, notify any purchaser from it of any Notes of the resale
restrictions set forth in (A) above. 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 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, acknowledgments and
agreements set forth herein, and the undersigned agrees to notify you promptly
in writing if any of the undersigned's representations or warranties herein
ceases to be accurate and complete.
2
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:
3
