Exhibit 4.1
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE dated as of December 21, 2004, among ATRIUM
COMPANIES, INC., a Delaware corporation (the "Company") , THE GUARANTORS party
hereto and U.S. BANK NATIONAL ASSOCIATION (as successor to State Street Bank and
Trust Company), a New York banking corporation, as trustee (the "Trustee"), to
the Indenture, dated as of May 17, 1999, as amended by the First Supplemental
Indenture, dated as of October 25, 2000, as further amended by the Second
Supplemental Indenture, dated as of January 24, 2003, as further amended by the
Third Supplemental Indenture, dated as of November 18, 2003, and as further
amended by the Fourth Supplemental Indenture, dated as of April 6, 2004
(collectively, the "Indenture"), among the Company, the guarantors party thereto
and the Trustee. Capitalized terms used in this Fifth Supplemental Indenture
(the "Supplemental Indenture") and not otherwise defined herein shall have the
meanings assigned to such terms in the Indenture.
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore executed and
delivered the Indenture providing for the issuance of 10 1/2% Senior
Subordinated Notes due 2009 (the "Notes") of the Company;
WHEREAS, Section 9.02 of the Indenture provides that the Company, the
Guarantors and the Trustee may, with the consent of the Holders of not less than
a majority of the aggregate principal amount of the Notes outstanding, amend the
Indenture;
WHEREAS, the Company has offered to purchase for cash all of the
outstanding Notes upon the terms and subject to the conditions set forth in the
Offer to Purchase and Consent Solicitation Statement, dated December 7, 2004, as
the same may be amended, supplemented or modified (the "Offer");
WHEREAS, the Company will form a new wholly owned subsidiary ("New
Subsidiary 1"), New Subsidiary 1 will then form a new wholly owned subsidiary of
New Subsidiary 1 ("New Subsidiary 2"), the Company will distribute (the
"Distribution") the capital stock of New Subsidiary 1 to the parent of the
Company, Atrium Corporation (the "Parent"), and the Company will subsequently
merge with and into New Subsidiary 2, with the Company being the surviving
entity in such merger (the "Merger"), certain of which transactions require the
amendment and/or waiver of various provisions of the Indenture;
WHEREAS, the Company intends to enter into a new credit facility (the
"New Credit Facility") and to repay in full all borrowings under its existing
credit facility, and
New Subsidiary 1 intends to issue senior discount notes and
contribute the net proceeds therefrom to the Company (these transactions,
together with the Distribution, the Merger and the Offer, are collectively
referred to as the "Refinancing"), certain of which transactions require the
amendment and/or waiver of various provisions of the Indenture;
WHEREAS, the Offer is conditioned upon, among other things, the waivers
(the "Waivers") of certain provisions of the Indenture and the proposed
amendments (the "Proposed Amendments") to the Indenture set forth herein having
been approved by not less than a majority of the aggregate principal amount of
the Notes outstanding, with the effectiveness of such Waivers and Proposed
Amendments with respect to the Indenture and the Notes being subject to the
initial acceptance for payment by the Company pursuant to the Offer of Notes
representing at least a majority in aggregate principal amount of the
outstanding Notes (the "Initial Acceptance");
WHEREAS, the Company has received and delivered to the Trustee the
requisite consents to effect the Waivers and the Proposed Amendments under the
Indenture and the Notes;
WHEREAS, the Company has been authorized by a resolution of its Board of
Directors to enter into this Supplemental Indenture; and
WHEREAS, all other acts and proceedings required by law, by the
Indenture and the certificate of incorporation and by-laws of the Company to
make this Supplemental Indenture a valid and binding agreement of the Company
for the purposes expressed herein, in accordance with its terms, have been duly
done and performed;
NOW THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, and for other good and valuable consideration the
receipt of which is hereby acknowledged, and for the equal and proportionate
benefit of the Holders of the Notes, the Company, the Guarantors and the Trustee
hereby agree as follows:
Article I.
Waiver of Compliance with Indenture and Events of Default
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1.1 The Trustee, with the consent of a majority in aggregate principal
amount of the outstanding Notes, waives (i) compliance with the provisions of
Article VIII of the Indenture, Section 10.02 of the Indenture, Sections 10.04
through 10.20 of the Indenture, inclusive, Section 10.22 of the Indenture,
Section 10.23 of the Indenture and (ii) any defaults or events of default under
Sections 5.01(c) - (k) of the Indenture, in each case arising in connection with
the consummation of the transactions contemplated by the Refinancing, including,
without limitation:
(a) the Distribution;
(b) the Merger;
(c) the entry into the New Credit Facility;
(d) the issuance by New Subsidiary 1 of senior discount notes and the
contribution of the net proceeds therefrom to the Company;
(e) the repayment of all of the Company's outstanding indebtedness under
its existing credit facility; and
(f) any and all actions that are taken by the Company, the Parent, New
Subsidiary 1, New Subsidiary 2 or any of the Company's subsidiaries or
affiliates in connection with the consummation of the transactions contemplated
by the Refinancing.
Article II.
Amendments to the Indenture
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2.1 Amendment of Section 4.01(11). Section 4.01(11) of the Indenture is
hereby deleted in its entirety and is replaced with the following:
"[intentionally omitted]".
2.2 Amendment of Sections 5.01(c) - (h). Sections 5.01(c) through
5.01(h) of the Indenture, inclusive, are hereby deleted in their entirety and
each such Section is replaced with the following: "[intentionally omitted]".
2.3 Amendment of Article VIII. Article VIII of the Indenture is hereby
deleted in its entirety and is replaced with the following: "[intentionally
omitted]".
2.4 Amendment of Section 10.02. Section 10.02 of the Indenture is hereby
deleted in its entirety and is replaced with the following: "[intentionally
omitted]".
2.5 Amendment of Sections 10.04 through 10.20. Sections 10.04 through
10.20 of the Indenture, inclusive, are hereby deleted in their entirety and each
such Section is replaced with the following: "[intentionally omitted]".
2.6 Amendment of Defined Terms. All terms defined in Sections 1.01 and
1.02 of the Indenture and contained in the Articles, Sections and Clauses of the
Indenture and the Notes deleted pursuant to Sections 2.1 through 2.5, inclusive,
of this Supplemental Indenture, but not otherwise used elsewhere in the
Indenture or the Notes, are hereby deleted in their entirety.
2.7 Amendment of Section References. All references in the Indenture and
the Notes to the Articles, Sections and Clauses of the Indenture and the Notes
deleted pursuant to this Article II of this Supplemental Indenture are hereby
deleted in their entirety.
Article III.
Effectiveness
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3.1 Effectiveness of this Supplemental Indenture. This Supplemental
Indenture is entered into pursuant to and consistent with Section 9.02 of the
Indenture, and nothing herein shall constitute a waiver, amendment, modification
or deletion of the Indenture requiring the approval of each Holder of Notes
affected thereby pursuant to clauses (a) through (j) of Section 9.02 of the
Indenture. Upon the execution of this Supplemental Indenture by the Company, the
Guarantors and the Trustee, the Indenture shall be amended and supplemented in
accordance herewith, and this Supplemental Indenture shall form a part of the
Indenture for all purposes and each Holder shall be bound thereby; provided,
however, that (i) the waivers contained in Article I above (such waivers being
referred to as the "Waivers") will not become operative, and the terms of the
Indenture and defaults and events of default which are the subject of such
Waivers will not be waived, in each case, until the Initial Acceptance, and (ii)
the provisions of the Indenture referred to in Article II above (such provisions
being referred to as the "Amended Provisions") will remain in effect in the form
they existed prior to the execution of this Supplemental Indenture, and the
amendments, modifications and deletions to the Amended Provisions will not
become operative, in each case, until the Initial Acceptance.
Article IV.
Miscellaneous
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4.1 Continuing Effect of the Indenture. Except as expressly provided
herein, all of the terms, provisions and conditions of the Indenture and the
Notes outstanding thereunder shall remain in full force and effect.
4.2 Reference and Effect on the Indenture. On and after the Acceptance,
each reference in the Indenture to "the Indenture," "this Indenture,"
"hereunder," "hereof" or "herein" shall mean and be a reference to the Indenture
as supplemented by this Supplemental Indenture, unless the context otherwise
requires.
4.3 Trust Indenture Act Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with another provision of this
Supplemental Indenture or the Indenture that is required to be included by the
Trust
Indenture Act of 1939, as amended, as in force at the date this Supplemental
Indenture is executed, the provision required by said Act shall control.
4.4 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the laws of another jurisdiction would be required thereby.
4.5 Separability. In case any provision of this Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
4.6 Counterparts. This Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
4.7 Trustee. The Trustee makes no representations as to the validity or
sufficiency of this Supplemental Indenture.
Exhibit 4.2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
ATRIUM COMPANIES, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By______________________________________________
Name:
Title:
GUARANTORS:
ATRIUM DOOR AND WINDOW COMPANY - WEST COAST
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM DOOR AND WINDOW COMPANY OF ARIZONA
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM DOOR AND WINDOW COMPANY OF THE NORTHWEST
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM DOOR AND WINDOW COMPANY OF THE NORTHEAST
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM DOOR AND WINDOW COMPANY OF THE ROCKIES
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
R.G. DARBY COMPANY, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM SHUTTERS, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
TOTAL TRIM, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM VINYL, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
THERMAL INDUSTRIES, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ATRIUM EXTRUSION SYSTEMS, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
MD CASTING, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
ALUMINUM SCREEN MANUFACTURERS, INC.
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer
SUPERIOR ENGINEERED PRODUCTS CORPORATION
By______________________________________________
Name: Jeff L. Hull
Title: President and Chief Executive Officer