Exhibit 4.4
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G-I HOLDINGS INC.
AND
THE BANK OF NEW YORK,
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of October 18, 1996
TO
INDENTURE
Dated as of February 14, 1996
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10% Senior Notes due 2006
and
Series B 10% Senior Notes due 2006
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 18, 1996,
between G-I HOLDINGS INC., a Delaware corporation (the "Company"), and
THE BANK OF NEW YORK, a New York banking corporation (the "Trustee"),
having its Corporate Trust Office at 101 Barclay Street, New York, New
York 10286.
RECITALS
WHEREAS, the Company and the Trustee have executed and
delivered the Indenture, dated as of February 14, 1996 (the "Original
Indenture" and capitalized terms used herein without definition have
the respective meanings specified therein), governing the terms of the
Company's Series B 10% Senior Notes due 2006 (the "Notes"); and
WHEREAS, ISP Holdings Inc. ("ISP Holdings") has solicited
the consent of the holders of the Notes to certain amendments (the
"Amendments") to the Original Indenture pursuant to that certain
Exchange Offer Circular and Consent Solicitation Statement of ISP
Holdings, dated September 13, 1996, as amended (the "Exchange Offer
Circular"); and
WHEREAS, Holders representing a majority in aggregate
principal amount of the Notes have delivered their consent to the
Amendments; and
WHEREAS, Section 9.02 of the Original Indenture permits the
Company, when authorized by resolution of its Board of Directors, and
the Trustee, to amend the Original Indenture with the written consent
of the Holders of a majority in aggregate principal amount of the
Notes then outstanding; and
WHEREAS, the Board of Directors of the Company has adopted
such a resolution in order to reflect the Amendments pursuant to this
First Supplemental Indenture; and
WHEREAS, the Company desires to enter into this First
Supplemental Indenture in order to amend the Original Indenture as of
the Effective Time (as defined herein);
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, it is mutually covenanted and
agreed for the equal and ratable benefit of all Holders of the Notes
as follows:
ARTICLE ONE
AMENDMENTS TO ORIGINAL INDENTURE
At the Effective Time, each of the following sections of the
Original Indenture shall be modified as follows:
A. Definitions.
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(i) Section 1.01 shall be amended by adding the following
definitions in their appropriate alphabetical location:
"ISP Holdings Transactions" means the consummation of a
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tender offer, exchange offer and senior note offering of ISP
Holdings Inc., on substantially the terms described in that
certain Exchange Offer Circular and Consent Solicitation
Statement, dated September 13, 1996, as amended, of ISP
Holdings Inc.
"Spin Off Transactions" means the consummation of a series
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of transactions involving GAF's subsidiaries on
substantially the terms described in that certain Exchange
Offer Circular and Consent Solicitation Statement, dated
September 13, 1996, as amended, of ISP Holdings Inc. that
will, among other things, result in the capital stock of ISP
Holdings Inc. being distributed to the stockholders of GAF.
(ii) Section 1.01 shall be amended further by deleting each
of the following definitions in its entirety:
"Linden Dividend"
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"Linden Property"
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"Permitted Lien"
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"Restricted Investment"
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"Restricted Payment"
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"Tax Sharing Agreements"
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"Unrestricted Affiliate"
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B. Covenants.
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(i) The text of each of the following Sections shall be
deleted in its entirety and replaced, in each case, by the words
"Intentionally Omitted":
Section 4.12. Limitation on Restricted Payments and
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Restricted Investments.
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Section 4.13. Limitation on Liens.
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Section 4.14. Limitation on Transactions with Affiliates.
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Section 4.15. Limitation on Investments in Non-Recourse
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Subsidiaries by ISP Subsidiaries and BMC Subsidiaries.
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Section 4.16. Limitation on Dividend and Other Payment
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Restrictions Affecting Subsidiaries.
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Section 4.20. Consents, etc.
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(ii) Each of the following Sections shall be amended to
read in its entirety as follows:
Section 4.04. Payments of Taxes and Other Claims. G-I
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Holdings shall, and shall cause each of its Subsidiaries (other than
Non-Recourse Subsidiaries) to, pay or discharge or cause to be paid or
discharged, before any penalty accrues from the failure to so pay or
discharge, 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,
provided that there shall not be required to be paid or discharged any
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such tax, assessment or charge if the amount, applicability or
validity thereof is being contested in good faith by appropriate
proceedings and adequate provision therefor has been made.
Section 5.01. When G-I Holdings May Merge, etc. G-I
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Holdings 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 series of
related transactions) to any Person, unless G-I Holdings shall be the
continuing Person, or the resulting, surviving or transferee Person
(if other than G-I Holdings) 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 G-I
Holdings under the Securities and this Indenture, and this Indenture
shall remain in full force and effect.
In connection with any consolidation, merger, sale,
assignment, transfer or lease contemplated by this Section 5.01, G-I
Holdings 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 6.01. Events of Default. An "Event of Default"
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occurs if:
(1) G-I Holdings 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) G-I Holdings defaults in the payment of
the principal of any Security when the same becomes due
and payable at maturity or otherwise or (ii) G-I
Holdings fails to redeem or repurchase Securities when
required pursuant to this Indenture or the Securities;
(3) G-I Holdings fails to comply with Section
5.01;
(4) G-I Holdings fails to comply for 30 days
after notice with any of its obligations under
Sections 4.03, 4.06, 4.09, 4.10, 4.11 and 4.17;
(5) G-I Holdings 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); or
(6) G-I Holdings 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.
A Default under clauses (4) or (5) 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 G-I Holdings in
writing of the Default, and G-I Holdings does not cure the Default
with 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) or (5) is
cured or remedied within the specified period, it ceases to exist.
(iii) Each of Sections 4.09, 4.10 and 4.11 shall be amended
by modifying the ratio set forth in subparagraph (a) of each such
Section to read "at least 1.00 to 1.00." Section 4.09 shall further
be amended by deleting subparagraph (e) therein in its entirety. Each
of Sections 6.02 and 7.07 shall be amended by changing each reference
therein to clause (7) of Section 6.01 to be a reference to clause (6)
of Section 6.01.
(iv) Subparagraph (a) of Section 4.06 shall be amended to
read in its entirety as follows:
(a) G-I Holdings will file with the Trustee and provide
Securityholders, within 15 days after it files them with the
Commission (and only to the extent that it files them with the
Commission), copies of its annual report and the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe)
which the Company is required to file with the Commission pursuant to
Section 13 of 15(d) of the Exchange Act, without exhibits in the case
of Securityholders, unless G-I
Holdings is requested in writing by the Securityholders. G-I Holdings
also will comply with the TIA Section 314(a).
(v) Subparagraph (a) of Section 4.18 shall be amended to
read in its entirety as follows:
(a) G-I Holdings shall not, and shall not permit any of its
Subsidiaries, directly or indirectly, to consummate an Asset Sale
unless:
(1) in the case of an Asset Sale by G-I Holdings or any
Specified Subsidiary, G-I Holdings 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 G-I Holdings and its Subsidiaries (other than
businesses engaged in through Non-Recourse Subsidiaries) are
engaged in at the time of such Asset Sale or any like or related
business, (ii) to pay 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, (iii) to offer to
purchase the Old Notes in a tender offer pursuant to the Old
Indenture to the extent required by the Old Indenture, and/or
(iv) to offer to purchase the Securities in a tender offer (a
"Net Proceeds Offer") at a redemption price equal to 100% of the
principal thereof plus accrued interest thereon to the date of
redemption; provided that G-I Holdings may defer making a Net
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Proceeds Offer until the aggregate Net Cash Proceeds from Asset
Sales to be applied pursuant to this clause (1)(iv) equal or
exceed $20,000,000; and
(2) in the case of an Asset Sale by any ISP Subsidiary or
any BMC Subsidiary, such ISP Subsidiary or BMC Subsidiary, as the
case may be, shall apply the Net Cash Proceeds of such Asset Sale
within one year of receipt thereof, (i) to invest in the
businesses that G-I Holdings and its Subsidiaries (other than
businesses engaged in through Non-Recourse Subsidiaries) are
engaged in at the time of such Asset Sale or any like or related
business, (ii) to pay 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, (iii) to pay or satisfy
Debt or Preferred Stock of any ISP Subsidiary or any BMC
Subsidiary, as the case may be, (iv) to offer to purchase the Old
Notes in a tender offer pursuant to the Old Indenture to the
extent required by the Old Indenture, and/or (v) to make a Net
Proceeds Offer at a redemption
price equal to 100% of the principal thereof plus accrued
interest thereon to the date of redemption; provided that G-I
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Holdings may defer making a Net Proceeds Offer until the
aggregate Net Cash Proceeds from Asset Sales to be applied
pursuant to clause (2)(v) equal or exceed $20,000,000;
provided that (i) G-I Holdings and its Subsidiaries may retain up to
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$5,000,000 of Net Cash Proceeds from Asset Sales in any twelve-month
period (without complying with clauses (1) or (2)), and (ii) any Asset
Sale that would result in a Change of Control shall not be governed by
this Section 4.18 but shall be governed by the provisions described
under Section 4.17 and paragraph 5(a) of the Securities.
(vi) Subparagraph (b) of Section 8.01 shall be amended to
read in its entirety as follows:
(b) Subject to Sections 8.01(c), 8.02 and 8.06, G-I
Holdings 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 4.11, 4.17
through 4.19 and 4.21 and the operation of Section 6.01(3), 6.01(4),
6.01(5) and 6.01(6) (with respect only to Significant Subsidiaries)
("covenant defeasance").
(vii) The penultimate paragraph of Section 8.02 shall be
amended to read in its entirety as follows:
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 G-I
Holdings makes the deposit described in paragraph (1), (i) no Default
under Section 6.01(1), 6.01(2) or 6.01(6) has occurred and is
continuing on the date of such deposit and after giving effect thereto
and (ii) either (x) a notice of redemption has been mailed pursuant to
Section 3.03 providing for redemption of all the Securities 30 days
after such mailing and the provisions of Section 3.01 with respect to
such redemption shall have been complied with or (y) the Stated
Maturity of all of the Securities will occur within 30 days. If the
conditions of the preceding sentence are satisfied G-I Holdings shall
be deemed to have exercised its covenant defeasance option.
(viii) The following new Section shall be added:
Section 5.03. Spin Off Transactions. Notwithstanding any
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provision in this Indenture to the contrary, the Spin Off
Transactions and the ISP Holdings Transactions may be consummated
under all circumstances and without satisfying any conditions.
ARTICLE TWO
MISCELLANEOUS
A. Governing Law.
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The laws of the State of New York shall govern this First
Supplemental Indenture without regard to the principles of conflict of
laws.
B. Counterparts.
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This First Supplemental Indenture may be executed in
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
C. Survival.
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This First Supplemental Indenture and the Original Indenture
shall henceforth be read together. Except as expressly set forth
herein, the Original Indenture shall remain unchanged and in full
force and effect in accordance with its terms.
D. Effective Time.
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For purposes of this First Supplemental Indenture, the
"Effective Time" shall mean such time as is immediately prior to ISP
Holdings accepting for exchange all Notes validly tendered (and not
withdrawn) pursuant to the terms of the Exchange Offer Circular.
IN WITNESS WHEREOF, the parties hereto have caused this
First Supplemental Indenture to be executed and delivered as of the
date first above written.
G-I HOLDINGS INC.
By: /s/: James P. Rogers
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Name: James P. Rogers
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/: Walter N. Gitlin
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Name: Walter N. Gitlin
Title: Vice President