G-I HOLDINGS INC.
AND
THE BANK OF NEW YORK,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 18, 1996
TO
INDENTURE
Dated as of February 14, 1996
10% Senior Notes due 2006
and
Series B 10% Senior Notes due 2006
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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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 tender offer,
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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 of
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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 Restricted
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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 Subsidiaries
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by ISP Subsidiaries and BMC Subsidiaries.
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Section 4.16. Limitation on Dividend and Other Payment Restrictions
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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 Holdings
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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
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discharged any 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 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" occurs if:
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(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
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
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that G-I Holdings may defer making a Net 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
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that G-I 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 $5,000,000
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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 provision
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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/: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK
By: /s/: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
