Exhibit 4.1
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated as of August 11, 2005, between ACIH, INC.,
a Delaware corporation (the "Company"), and U.S. BANK NATIONAL ASSOCIATION, as
trustee (the "Trustee"), to the Indenture, dated as of December 28, 2004 (the
"Indenture"), between the Company and the Trustee. Capitalized terms used in
this 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 11 1/2% Senior Discount
Notes due 2012 (the "Notes") of the Company;
WHEREAS, Section 10.10 of the Indenture provides that the Company must
furnish to the Holders and file with the Trustee (a) by March 31, 2005, the
Company's audited consolidated financial statements prepared in accordance with
generally accepted accounting principles ("GAAP") and as otherwise described in
the Indenture along with certain results of operations information for the year
ended December 31, 2004, and (b) by May 15, 2005, the Company's unaudited
consolidated financial statements prepared in accordance with GAAP and as
otherwise described in the Indenture along with certain results of operations
information for the quarter ended March 31, 2005 (collectively, the "Prior
Financials");
WHEREAS, the Company did not furnish to the Holders and file with the
Trustee the Prior Financials within the time periods prescribed in Section 10.10
of the Indenture;
WHEREAS, Section 5.13 of the Indenture provides that the Holders of not
less than a majority of the aggregate principal amount at Stated Maturity of the
Outstanding Notes may on behalf of the Holders of all the Notes waive certain
past defaults under the Indenture and their consequences (including, without
limitation, Defaults arising with respect to the obligations set forth in
Section 10.10 of the Indenture);
WHEREAS, Section 10.10 of the Indenture provides that the Company must
furnish to the Holders and file with the Trustee by August 14, 2005, the
Company's unaudited consolidated financial statements prepared in accordance
with GAAP and as otherwise described in the Indenture along with certain results
of operations information for the quarter ended June 30, 2005 (the "Second
Quarter Financials");
WHEREAS, Section 9.02 of the Indenture provides that the Company and
the Trustee may, with the consent of the Holders of not less than a majority of
the aggregate principal amount at Stated Maturity of the Outstanding Notes,
amend certain provisions of the Indenture (including, without limitation,
Section 10.10 of the Indenture);
WHEREAS, the Company has solicited consents from the Holders of the
Notes upon the terms and subject to the conditions set forth in the Consent
Letter, dated August 3, 2005, as the same may be amended, supplemented or
modified (the "Consent Solicitation") to, subject to certain conditions, (a)
waive the past Defaults arising with respect to the Company's obligations to
furnish to the Holders and file with the Trustee the Prior Financials through
and including November 12, 2005 and any Default or Event of Default under the
Indenture arising therefrom (the "Waiver") and (b) amend Section 10.10(2) of the
Indenture to extend the deadline for furnishing to the Holders and filing with
the Trustee the Second Quarter Financials to November 12, 2005 (the "Proposed
Amendment");
WHEREAS, the Company has received and delivered to the Trustee the
requisite consents to effect the Waiver and the Proposed Amendment under the
Indenture;
WHEREAS, Atrium Companies, Inc., the Company's wholly-owned subsidiary
("Atrium"), has represented to the Trustee that (a) it has entered into (i) a
Waiver and Amendment, dated as of July 28, 2005, to that certain Credit
Agreement, dated as of December 28, 2004 (the "Credit Agreement"), by and among
Atrium, the Company, the Guarantors named therein, the Lenders thereto, Merrill
Lynch Capital, a division of Merrill Lynch Business Financial Services Inc., UBS
Securities LLC, Antares Capital Corporation, Citicorp North America, Inc. and
General Electric Capital Corporation, pursuant to which such lenders waived
certain events of default under the Credit Agreement and amended certain terms
of the Credit Agreement and (ii) a Waiver, dated as of July 28, 2005, among
Atrium Funding Corporation, Atrium, Fairway Finance Company, LLC (as successor
to Fairway Finance Corporation) and Harris Nesbitt Corp. (f/k/a BMO Nesbitt
Burns Corp.), pursuant to which such parties waived certain events of default
under the Receivables Purchase Agreement, dated as of July 31, 2001, among
Atrium Funding Corp., Atrium, Fairway Finance Corporation and BMO Nesbitt Burns
Corp., and (b) the waivers included in the aforementioned agreements will expire
on October 28, 2005 and September 16, 2005, respectively, subject to early
termination under certain circumstances;
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;
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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 and the Trustee hereby agree as
follows:
Article I.
Waiver of Past Defaults
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1.1 The Trustee acknowledges that the Holders of not less than a
majority in aggregate principal amount at Stated Maturity of the Outstanding
Notes have, to the extent set forth in the Consent Letter, waived, through and
including November 12, 2005, (a) the Company's obligations to furnish to the
Holders and file with the Trustee the Prior Financials pursuant to Section 10.10
of the Indenture and (b) any Defaults or Events of Default under the Indenture,
in each case arising from the Company's inability to furnish to the Holders and
file with the Trustee the Prior Financials pursuant to Section 10.10 of the
Indenture.
Article II.
Amendment to the Indenture
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2.1 Amendment of Section 1.01. Section 1.01 of the Indenture is hereby
amended to include the following terms in alphabetical order with the other
terms appearing within Section 1.01:
"A/R Waiver" means the Waiver, dated as of July 28, 2005, among Atrium
Funding Corporation, ACI, Fairway Finance Company, LLC (as successor to Fairway
Finance Corporation) and Harris Nesbitt Corp. (f/k/a BMO Nesbitt Burns Corp.),
pursuant to which such parties waived certain events of default under the
Receivables Purchase Agreement, dated as of July 31, 2001, among Atrium Funding
Corp., ACI, Fairway Finance Corporation and BMO Nesbitt Burns Corp.
"Lender Extension Waivers" means (1) the Waiver and Amendment, dated as
of July 28, 2005, to that certain Credit Agreement (the "Credit Agreement"),
dated as of December 28, 2004, by and among ACI, the Company, the Guarantors
named therein, the Lenders thereto, Merrill Lynch Capital, a division of Merrill
Lynch Business Financial Services Inc., UBS Securities LLC, Antares Capital
Corporation, Citicorp North America, Inc. and General Electric Capital
Corporation, pursuant to which such lenders waived certain events of default
under the Credit Agreement and amended certain terms of the Credit Agreement and
(2) the A/R Waiver.
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"Lender Extension Waiver Termination Date" means the date on which any
of the Lender Extension Waivers (or other agreements or waivers on substantially
the same terms (other than the terms with respect to the outside termination
date) as the Lender Extension Waivers) ceases to be in full force and effect.
"Prior Financials" means (a) the Company's audited consolidated
financial statements along with certain results of operations information for
the year ended December 31, 2004 required to be provided pursuant to Sections
10.10(1)(x) and 10.10(1)(y), and (b) the Company's unaudited consolidated
financial statements along with certain results of operations information for
the quarter ended March 31, 2005 required to be provided pursuant to Sections
10.10(2)(x) and 10.10(2)(y).
"Second Quarter Financials" means the Company's unaudited consolidated
financial statements along with certain results of operations information for
the quarter ended June 30, 2005 required to be provided pursuant to Sections
10.10(2)(x) and 10.10(2)(y)."
2.2 Amendment of Section 5.01. Section 5.01 of the Indenture is amended
by deleting the last word in Section 5.01(l) in its entirety and replacing it
with the following: "Date; or
(m) the Company fails to furnish without cost to each Holder and file
with the Trustee the Prior Financials on or before 5:00 p.m. New York City time
on November 12, 2005; or
(n) if at any time after August 12, 2005 and prior to October 28, 2005,
(i) a Lender Extension Waiver Termination Date occurs and (ii) the Company has
not furnished without cost to each Holder and filed with the Trustee the Prior
Financials on or before such Lender Extension Waiver Termination Date; or
(o) the Company fails to furnish without cost to each Holder and file
with the Trustee the Second Quarter Financials on or before 5:00 p.m. New York
City time on November 12, 2005.
Notwithstanding the foregoing, an extension of the A/R Waiver beyond
September 16, 2005 on substantially the same terms and conditions as the A/R
Waiver shall not, by itself, result in an Event of Default."
2.3 Amendment of Section 10.10(2). Section 10.10 of the Indenture is
amended by deleting the last word in the first sentence of Section 10.10(2) and
replacing it with the following: "time;
provided, however, that, notwithstanding anything to the contrary in this
Section 10.10, for the fiscal quarter ended June 30, 2005, the Company shall
furnish without cost to each
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Holder and file with the Trustee the Second Quarter Financials on or prior to
5:00 p.m. New York City time on November 12, 2005; provided further, that if at
any time after August 14, 2005 and prior to October 28, 2005, a Lender Extension
Waiver Termination Date occurs, the Company shall immediately furnish without
cost to each Holder and file with the Trustee the Second Quarter Financials.
Notwithstanding the foregoing, an extension of the A/R Waiver beyond
September 16, 2005 on substantially the same terms and conditions as the A/R
Waiver shall not, by itself, result in an Event of Default."
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 (k) of Section 9.02 of the
Indenture. Upon the execution of this Supplemental Indenture by the Company 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.
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
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first written above.
ACIH, INC.
By /s/ Jerry Fadden
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Name: Jerry Fadden
Title: Chief Financial Officer
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
By /s/ Sandra Spivey
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Name: Sandra Spivey
Title: Vice President