_______________________________________________________________
_______________________________________________________________
ISP HOLDINGS INC.
9 3/4% Senior Notes due 2002
and
Series B 9 3/4% Senior Notes due 2002
______________
INDENTURE
Dated as of October 18, 1996
______________
THE BANK OF NEW YORK
______________
Trustee
_______________________________________________________________
_______________________________________________________________
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)(1)......................................... 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 the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..................................... 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act................................. 26
SECTION 1.03. Rules of Construction........................... 26
ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating................................. 27
SECTION 2.02. Execution and Authentication;
Aggregate Principal Amount.................... 27
SECTION 2.03. Registrar and Paying Agent...................... 29
SECTION 2.04. Paying Agent To Hold Money in Trust............. 29
SECTION 2.05. Holder Lists.................................... 30
SECTION 2.06. Transfer and Exchange........................... 30
SECTION 2.07. Replacement Notes............................... 32
SECTION 2.08. Outstanding Notes............................... 32
SECTION 2.09. Treasury Notes.................................. 33
SECTION 2.10. Temporary Notes................................. 33
SECTION 2.11. Cancellation.................................... 33
SECTION 2.12. Defaulted Interest.............................. 33
SECTION 2.13. CUSIP Number.................................... 34
SECTION 2.14. Deposit of Moneys............................... 34
ARTICLE III
REDEMPTION
SECTION 3.01. Notices to Trustee.............................. 34
SECTION 3.02. Selection of Notes To Be Redeemed............... 35
SECTION 3.03. Notice of Redemption............................ 35
SECTION 3.04. Effect of Notice of Redemption.................. 36
SECTION 3.05. Deposit of Redemption Price..................... 36
SECTION 3.06. Notes Redeemed in Part.......................... 36
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes................................ 37
SECTION 4.02. Maintenance of Office or Agency................. 37
SECTION 4.03. Corporate Existence............................. 38
SECTION 4.04. Payment of Taxes and Other Claims............... 38
SECTION 4.05. Compliance Certificates......................... 38
SECTION 4.06. Securities and Exchange Commission
Reports....................................... 39
SECTION 4.07. Waiver of Stay, Extension or Usury
Laws.......................................... 40
SECTION 4.08. Maintenance of Properties....................... 40
SECTION 4.09. Limitation on Debt and Preferred
Stock of the Company and ISP
Subsidiaries.................................. 41
SECTION 4.10. Limitation on Debt and Preferred
Stock of BMCA Subsidiaries.................... 43
SECTION 4.11. Limitation on Debt and Preferred
Stock of Specified Subsidiaries............... 44
SECTION 4.12. Prohibition on Debt and Capital
Stock of Intermediate Parents of
ISP and BMCA.................................. 45
SECTION 4.13. Limitation on Restricted Payments
and Restricted Investments.................... 46
SECTION 4.14. Limitation on Liens............................. 48
SECTION 4.15. Prohibition on Certain Transactions............. 49
SECTION 4.16. Limitation on Transactions with
Affiliates.................................... 50
SECTION 4.17. Limitation on Investments in Non-
Recourse Subsidiaries by ISP
Subsidiaries and BMCA
Subsidiaries.................................. 52
SECTION 4.18. Limitation on Dividend and Other
Payment Restrictions Affecting
Subsidiaries.................................. 52
SECTION 4.19. Change of Control............................... 54
SECTION 4.20. Limitation on Asset Sales....................... 56
SECTION 4.21. Investment Company Act.......................... 59
SECTION 4.22. Consents, etc................................... 59
SECTION 4.23. Registration Rights............................. 60
SECTION 4.24. Spin Off........................................ 60
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ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. When the Company May Merge, etc................. 60
SECTION 5.02. Successor Corporation Substituted............... 61
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default............................... 61
SECTION 6.02. Acceleration.................................... 63
SECTION 6.03. Other Remedies.................................. 64
SECTION 6.04. Waiver of Past Defaults......................... 64
SECTION 6.05. Control by Majority............................. 64
SECTION 6.06. Limitation on Remedies.......................... 64
SECTION 6.07. Rights of Holders To Receive
Payment....................................... 65
SECTION 6.08. Collection Suit by Trustee...................... 65
SECTION 6.09. Trustee May File Proofs of Claim................ 65
SECTION 6.10. Priorities...................................... 66
SECTION 6.11. Undertaking for Costs........................... 66
SECTION 6.12. Restoration of Rights and Remedies.............. 67
ARTICLE VII
TRUSTEE
SECTION 7.01. Rights of Trustee............................... 67
SECTION 7.02. Individual Rights of Trustee.................... 68
SECTION 7.03. Money Held in Trust............................. 68
SECTION 7.04. Trustee's Disclaimer............................ 68
SECTION 7.05. Notice of Defaults.............................. 68
SECTION 7.06. Reports by Trustee to Holders................... 69
SECTION 7.07. Compensation and Indemnity...................... 69
SECTION 7.08. Replacement of Trustee.......................... 70
SECTION 7.09. Successor Trustee by Xxxxxx, etc................ 71
SECTION 7.10. Eligibility; Disqualification................... 72
SECTION 7.11. Preferential Collection of Claims
Against the Company........................... 72
SECTION 7.12. Duties of Trustee............................... 72
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ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Notes;
Defeasance.................................... 73
SECTION 8.02. Conditions to Defeasance........................ 74
SECTION 8.03. Application of Trust Money...................... 76
SECTION 8.04. Repayment to Company............................ 76
SECTION 8.05. Indemnity for Government Obliga-
tions......................................... 76
SECTION 8.06. Reinstatement................................... 76
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders...................... 77
SECTION 9.02. With Consent of Holders......................... 77
SECTION 9.03. Revocation and Effect of Consents............... 79
SECTION 9.04. Record Date..................................... 80
SECTION 9.05. Notation on or Exchange of Notes................ 80
SECTION 9.06. Trustee May Sign Amendments, etc................ 80
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939..................... 80
SECTION 10.02. Notices......................................... 81
SECTION 10.03. Communication by Holders with Other
Holders....................................... 81
SECTION 10.04. Certificate and Opinion as to
Conditions Precedent.......................... 81
SECTION 10.05. Statements Required in Certificate
or Opinion.................................... 82
SECTION 10.06. Rules by Trustee, Paying Agent,
Registrar..................................... 82
SECTION 10.07. Governing Law................................... 82
SECTION 10.08. No Interpretation of Other
Agreements.................................... 83
SECTION 10.09. No Recourse Against Others...................... 83
SECTION 10.10. Legal Holidays.................................. 83
SECTION 10.11. Successors...................................... 83
SECTION 10.12. Duplicate Originals............................. 83
SECTION 10.13. Separability.................................... 83
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SECTION 10.14. Table of Contents, Headings, etc................ 83
SECTION 10.15. Benefits of Indenture........................... 84
SIGNATURES........................................................ 85
EXHIBITS
EXHIBIT A -- Form of Initial Note................................. A-1
EXHIBIT B -- Form of Exchange Note................................ B-1
EXHIBIT C -- Form of Legend for Book-Entry
Securities...................................... C-1
SCHEDULES
Schedule A -- Registration Rights
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INDENTURE, dated as of October 18, 1996, between ISP
HOLDINGS INC. (the "Company"), 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
ISP Holdings' 9 3/4% Senior Notes due 2002 (the "Initial
Notes") and Series B 9 3/4% Senior Notes due 2002 (the
"Exchange Notes"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
"10% Notes" means the Series B 10% Senior Notes due
2006 of G-I Holdings.
"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 clauses (i) or (ii), provided that the
recourse with respect to such Refinancing Debt is limited to
the same extent as the Debt so Refinanced.
"Additional Interest" means all additional interest
owing under the Registration Rights Agreement.
"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"
having meanings correlative to the foregoing. For the
avoidance of doubt, GAF and its Affiliates (so long as they are
under common control with the Company) shall, both before and
after the Spin Off, be deemed to be Affiliates of the Company.
"Agent" means any Registrar, Paying Agent or co-
Registrar of the Notes.
"Applicable Date" has the meaning set forth in
Section 4.13(a)(3).
"Applicable Premium" means, with respect to any Note,
the greater of (x) 1.0% of the principal amount of such Note
and (y) the excess, if any, of (a) the present value of the
required remaining interest payments, principal and future
optional redemption premium (if applicable) of such Note,
discounted on a semi-annual bond equivalent basis from either
the maturity date of the Note or the optional redemption date
to the applicable redemption date 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
Note plus accrued and unpaid interest to the redemption 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 of (x) any Capital Stock of any Subsidiary
of such Person or (y) all or substantially all of the
properties and assets of any division or line of business of
such Person or any of its Recourse Subsidiaries, in either
case, other than (i) by the Company or any of its Post-Spin Off
Subsidiaries to the Company or any of its Post-Spin Off
Subsidiaries, (ii) by G-I Holdings or any of its Post-Spin Off
Subsidiaries to G-I Holdings or any of its Post-Spin Off
Subsidiaries and (iii) after the Determination Date, by the
Company or any of its Subsidiaries to the Company or any of its
Subsidiaries. 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 Section 5.01, (B) any sale, lease, assignment or other
disposition by a Person that has outstanding Long-Term Debt all
of which (x) are rated BBB- or higher by S&P and are not on
credit watch by S&P for a possible downgrade below BBB- or
(y) are rated Baa3 or higher by Moody's and are not on credit
watch by Moody's for a possible downgrade below Baa3, (C) any
sale of Common Stock the proceeds of which are used pursuant to
the provisions described in the first paragraph of Section 5(a)
of the Notes or (D) prior to the Spin Off, the retirement,
liquidation, redemption or extinguishment of the indirect
interest of the Company and its Subsidiaries in Xxxxx-Xxxxxxx
Surfactants and Specialties L.P.
"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.
"BMCA" means Building Materials Corporation of
America, a Delaware corporation, and its successors.
"BMCA Subsidiaries" means BMCA and its Subsidiaries.
"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 Note" means a Note represented by a
Global Note and registered in the name of the Depository or a
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 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 Stock 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 Moody's, (iv)
certificates of deposit or bankers' acceptances maturing no
more than 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 $250,000,000, (v) repurchase obligations with a term
of not more than 30 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
(vi) 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 (v)
above.
"Change of Control" means the occurrence of any of
the following events:
(i) prior to the first public offering of Voting
Stock of the Company, 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, any merger, consolidation, liquidation or
dissolution of the Company, any direct or indirect
transfer of securities by any Permitted Holder or
otherwise (for purposes of this clause (i) and clauses
(ii) and (iv) below, the Permitted Holders shall be deemed
to beneficially own any Voting Stock of a corporation (the
"specified 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 the
Company, but only if Permitted Holders beneficially own
(as defined in clause (i) above), directly or indirectly,
in the aggregate a lesser percentage of the Voting Stock
of 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 the Company;
(iii) during any period of two consecutive years,
individuals who at the beginning of such period
constituted the Board of Directors of the Company or its
predecessor (together with any new directors whose
election by such Board or whose nomination for election by
the shareholders of the Company or its predecessor 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; or
(iv) either (x) the Permitted Holders or (y) the
Company ceases, for any reason, to be the beneficial owner
(as defined in clause (i) above), directly or indirectly,
of majority voting power of the Voting Stock of ISP,
whether as a result of issuance of securities, any merger,
consolidation, liquidation or dissolution, any direct or
indirect transfer of securities by any Permitted Holder or
otherwise.
"Change of Control Notice" has the meaning specified
in Section 4.19(b).
"Change of Control Payment Date" has the meaning set
forth in Section 4.19(a).
"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 the
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.
"Consolidated EBITDA Coverage Ratio" means, with
respect to any Person, for any period, the ratio of (i) EBITDA
of such Person for such period to (ii) Consolidated Interest
Expense of such Person for such period; provided, however, that
(A) if such Person or any of its Subsidiaries 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 of its
Subsidiaries shall have made any asset sale 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 and the amount of
any other Debt or Capital Stock 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 Sale 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) (it being
understood that the Spin Off shall be considered an Asset Sale
outside of the ordinary course of business for purposes of this
clause (B)); and (C) if since the beginning of the period such
Person or any of its Subsidiaries (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 or
dividends 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 (b) the product of (x) the amount of all dividends paid or
accrued on any series of preferred stock of such Person (other
than non-Redeemable Stock) and its Recourse Subsidiaries times
(y) a fraction, the numerator of which is one and the
denominator of which is one minus the effective combined
consolidated federal, state and local tax rate of such Person,
expressed as a decimal.
"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 in such period net of all
extraordinary 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 (other than, in calculating the
consolidated net income (loss) of the Company, the consolidated
net income (loss) of ISP, USI or BMCA) 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) charges relating to the
Transactions or the offering of the 10% Senior Notes and
Series B 10% Senior Notes due 2006 of G-I Holdings; and
(viii) the cumulative effect of a change in accounting
principles.
"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.
"Credit Agreement" means the credit agreement dated
as of July 26, 1996, among ISP, certain of its Subsidiaries,
the financial institutions named therein and Chase Manhattan
Bank, as agent thereunder, as the same may be amended or
supplemented.
"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) all obligations
of the type referred to in clauses (i) through (iv) 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
(vi) all obligations of the type referred to in clauses (i)
through (v) 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 4.20, Debt of the Company (prior to the
Spin Off) and any BMCA Subsidiary 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.
"Depository" means, with respect to the Notes issued
in the form of one or more Book-Entry Notes, The Depository
Trust Company or another person designated as Depository by the
Company, which must be a clearing agency registered under the
Exchange Act.
"Determination Date" means the date (if any) on which
the Company delivers a notice to the Trustee that the Board of
Directors of the Company has determined not to effect the Spin
Off, which notice shall be irrevocable and include a copy of
the Board Resolution of such Board of Directors making such
determination.
"Discount Notes" has the meaning set forth in
Section 4.20(a)(3).
"EBITDA" means, with respect to any Person, for any
period, 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 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,
(iii) depreciation expense, (iv) amortization expense and (v)
minority interest in any Recourse Subsidiary that is not a
Wholly Owned Subsidiary but 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.
"Events of Default" has the meaning set forth in
Section 6.01.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, and the rules and
regulations of the Commission thereunder.
"Exchange Notes" has the meaning assigned to that
term in the preambles to this Indenture.
"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 Notes to exchange all the Initial Notes held by such
Holder for the Exchange Notes in an aggregate principal amount
equal to the aggregate principal amount of the Initial Notes
held by such Holder, all in accordance with the terms and
conditions of the Registration Rights Agreement.
"Exchange Offer Circular" means the Exchange Offer
Circular and Consent Solicitation Statement dated September 13,
1996, as supplemented through the Issue Date.
"Existing Management Agreement" means the Amended and
Restated Management Agreement dated as of March 3, 1992 by and
among GAF and certain of its Subsidiaries as amended through
the Issue Date.
"G-I Holdings" means G-I Holdings Inc., 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.
"GAF" means GAF Corporation, a Delaware corporation,
and its successors.
"Global Note" means a Note evidencing all or a part
of the Notes to be issued as Book-Entry Notes, issued to the
Depository in accordance with Section 2.02 and bearing the
legend prescribed in Exhibit C.
"Granules Contracts" means (i) the Supply Agreement
dated as of January 1, 1995 between ISP Technologies Inc. and
BCMA, 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, however, 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" means the Person in whose name a Note 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.
"Indemnification Agreement" means the indemnification
agreement dated as of the Issue Date among GAF and certain of
its Subsidiaries.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Initial Notes" has the meaning assigned to that term
in the preamble to this Indenture.
"Initial Notes Amount" has the meaning set forth in
Section 2.02.
"Interest Payment Date" means the Stated Maturity of
an installment of interest on the Notes.
"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.
"ISP Holdings Transactions" means the transactions
described in the Exchange Offer Circular under the heading "The
ISP Holdings Transactions," including the offering of the New
Money Notes, substantially on the terms described therein.
"ISP Subsidiaries" means ISP and its Subsidiaries.
"Issue" means issue, assume, Guarantee, incur or
otherwise become liable for; provided, however, 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 October [18], 1996, the date of
original issuance of the Initial Notes.
"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).
"Linden Dividend" means the payment of a dividend or
distribution in respect of the Company's Common Stock of the
assets comprising the Linden Property or of the shares of
Capital Stock of a Subsidiary of the Company all or
substantially all of the assets of which consist of the Linden
Property.
"Linden Property" means that property consisting of
approximately 140 acres (40 acres developed) located in Union
County, New Jersey at the foot of South Wood Avenue, Linden and
owned by ISP Environmental Services Inc., which is the site of
a former chemicals manufacturing facility of ISP.
"Long-Term Debt" of any Person means outstanding
long-term debt securities of such Person (or, in the event that
such Person has no outstanding long-term debt securities, a
credit facility of such Person) that (i) is unsecured, (ii) not
subordinated in right of payment to any other Debt of such
Person and (iii) is not guaranteed and does not have credit
support provided by any other Person (other than, in the case
of Long-Term Debt of any ISP Subsidiary, any ISP Subsidiary).
"Moody's" means Xxxxx'x Investors Service, Inc. or
its successor.
"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 agreements governing such Debt or Asset Sale.
"Net Proceeds Offer" shall have the meaning provided
in Section 4.20.
"New Management Agreement" means the Existing
Management Agreement as amended to add the Company as a party
thereto.
"New Money Notes" means the 9% Senior Notes due 2003,
the Senior B 9% Senior Notes due 2003 and the 9% Private
Exchange Senior Notes due 2003 of the Company.
"Non-Recourse Debt" of any Person means Debt or the
portion of Debt (i) as to which neither GAF, the Company nor
any of its Recourse Subsidiaries (A) provides credit support
(including any undertaking, agreement or instrument which would
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 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 the Board
of Directors of such Person, (B) which has not acquired any
assets directly or indirectly from GAF, the Company or any of
its Subsidiaries other than at fair market value, including by
the receipt of Capital Stock of such Non-Recourse Subsidiary,
provided, however, 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. Subsidiaries of Non-Recourse
Subsidiaries shall be deemed Non-Recourse Subsidiaries.
"Notes" means the Initial Notes and the Exchange
Notes treated as a single class of securities.
"Obligations" means (a) the full and punctual payment
of the principal of, and interest on, the Notes when due,
whether at maturity, by acceleration, by redemption or
otherwise, and all other monetary obligations of the Company
under this Indenture and the Notes and (b) the full and
punctual performance of all other obligations of the Company
under this Indenture and the Notes.
"Officer" of any corporation means the Chairman of
the Board, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Secretary or the
Controller 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.
"Paying Agent" has the meaning set forth in Sec-
tion 2.03, except that, for the purposes of Article VIII and
Sections 4.19 and 4.20, 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;
(9) Liens encumbering deposits made in the ordinary
course of business to secure nondelinquent obligations
arising from statutory, regulatory, contractual or
warranty requirements of the Company or 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;
(16) Liens arising by reason of consignment sales of
inventory in the ordinary course of business; and
(17) 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.
"Post-Spin Off Subsidiary" of any Person means any
Subsidiary of such Person after giving effect to the Spin Off.
"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.
"Principal" of a debt security, including the Notes,
means the principal of such security plus, when appropriate,
the premium, if any, on such security.
"Principal Amount at Maturity" of a security means
the amount specified as such on the face of such security.
"Proceeds Purchase Date" shall have the meaning
provided in Section 4.20.
"Purchase Money Obligation" of any Person means any
Debt secured by a Lien on assets related to the business of
such Person, and any additions and accessions thereto or
replacements thereof, which are purchased or constructed by
such Person at any time after the Issue Date; provided,
however, that (i) the aggregate outstanding principal amount of
such Debt (determined on a per asset basis in the case of any
additions, accessions or replacements) shall not at any time
exceed 100% of the purchase price to such Person of the related
assets or (ii) such Debt shall be with recourse solely to the
assets so purchased or acquired, any additions and accessions
thereto or replacements thereof and any proceeds therefrom.
"Qualified Institutional Buyer" or "QIB" shall have
the meaning specified in Rule 144A under the Securities Act.
"Ratings Event" means any of the following:
(i) the rating of ISP's Long-Term Debt being below
Baa3 (in the case of the rating by Moody's) and below BB+
(in the case of the rating by S&P); or
(ii) at any time that ISP's Long-Term Debt is rated
below Baa3 by Moody's, the rating of ISP's Long-Term Debt
being placed on credit watch for a ratings downgrade below
BB+ by S&P; or
(iii) at any time that ISP's Long-Term Debt is rated
below BB+ by S&P, the rating of ISP's Long-Term Debt being
placed on credit watch for a ratings downgrade below Baa3
by Moody's.
"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
Notes, (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 Notes, 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.
"Refinancing Debt" means Debt Issued to Refinance any
other Debt; provided, however, that (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 a Purchase
Money Obligation, Refinancing Debt shall not be 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.
"Registrar" has the meaning set forth in
Section 2.03.
"Registration Rights Agreement" means the agreement
of the Company set forth on Schedule A hereto.
"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, however, that
the following shall not be Restricted Investments:
(a) any Investment by the Company or any ISP Subsidiary
(or on and after the Determination Date, any
Subsidiary of the Company) in any Unrestricted
Affiliate;
(b) prior to the Determination Date:
(i) any Investment by the Company or any of its
Post-Spin Off Subsidiaries in (x) the Company or
any of its Post-Spin Off Recourse Subsidiaries
or (y) any such Affiliate that becomes, as a
result of such Investment, a Recourse Subsidiary
of any Post-Spin Off Recourse Subsidiary of the
Company; and
(ii) any Investment by G-I Holdings or any of its
Post-Spin Off Subsidiaries in (x) G-I Holdings
or any of its Post-Spin Off Recourse
Subsidiaries or (y) any such Affiliate that
becomes, as a result of such Investment, a
Recourse Subsidiary of any Post-Spin Off
Recourse Subsidiary of G-I Holdings;
(c) prior to the Spin Off, loans and advances bearing
market rates of interest between the Company and any
of its Subsidiaries or between or among Subsidiaries
of the Company so long as such loans and advances, if
they are not permitted under clause (b)(i) or (ii),
are repaid in full in cash at the consummation of the
Spin Off; and
(d) on and after the Determination Date:
(i) any Investment in the Company or any of its
Recourse Subsidiaries; and
(ii) any Investment in any such Affiliate that
becomes, as a result of such Investment, a
Recourse Subsidiary of the Company.
"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);
provided, however, that the Linden Dividend shall not be deemed
to be a Restricted Payment.
"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
successor.
"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 Statement" 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 Notes in the event that the Exchange Offer is
not completed, pursuant to the terms of the Registration Rights
Agreement.
"Significant Subsidiary" means (i) any 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 Recourse Subsidiary of the Company 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 period (each such
determination being made in accordance with GAAP). "Defaulting
Subsidiary" means any Recourse Subsidiary of the Company with
respect to which an event described under clause (6), (7), or
(8) of Section 6.01 has occurred and is continuing.
"Specified Agreements" means (i) the Tax Sharing
Agreements (but, after a company leaves the applicable
consolidated group, only with respect to the indemnities that
survive thereunder), (ii) the Existing Management Agreement and
the New Management Agreement, (iii) the Granules Contracts and
(iv) the Indemnification Agreement and other similar
indemnification agreements in effect prior to the Issue Date.
"Specified Subsidiaries" means Subsidiaries of the
Company other than (i) ISP Subsidiaries and (ii) BMCA
Subsidiaries.
"Spin Off" means the consummation of the transactions
described in items (1) through (9) in the first paragraph under
the section of the Exchange Offer Circular entitled "The Spin
Off Transactions," substantially on the terms described in such
paragraph.
"Spin Off Date" means the date on which the Spin Off
is consummated.
"Stated Maturity" when used with respect to any Note
or any installment of interest thereon, means the date
specified in such Note as the fixed date on which the principal
of such Note 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 at any
time of determination, (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 Agreements" means, collectively, (i) the
tax sharing agreement dated as of September 7, 1993, as amended
on the Issue Date, among GAF, G-I Holdings, G Industries and
the Company, (ii) the amended and restated tax sharing
agreement dated as of March 3, 1992 among GAF, G Industries,
ISP and certain of ISP's Subsidiaries, (iii) the tax sharing
agreement among ISP Holdings and certain of its Subsidiaries,
described in the Exchange Offer Circular under "Tax Sharing
Agreements -- ISP Holdings Tax Sharing Agreement," and (iv)
prior to the Spin Off, the tax sharing agreement dated as of
January 31, 1994 among GAF, G-I Holdings, BMCA and BMCA's
Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as
amended, as in effect on the date hereof.
"Transactions" means the Spin Off and the ISP
Holdings Transactions.
"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 Notes; provided, however, that if the Average Life of the
Notes 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 Notes 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.
"Trust Officer" means the Chairman of the Board, the
President or any other officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate
trust matters.
"Unrestricted Affiliate" means: (a) prior to the
Determination Date, any Person (other than any Subsidiary of
the Company) controlled (as defined in the definition of
"Affiliate") by the Company in which no Affiliate of the
Company (other than (i) so long as ISP is a Recourse Subsidiary
of the Company, ISP or any of its Wholly-Owned Recourse
Subsidiaries, (ii) any director or officer of the Company or
any of its Post-Spin off Subsidiaries (so long as such person
is not also a director or officer of GAF or any of its
Affiliates (other than the Company and its Post-Spin Off
Subsidiaries, except for Non-Recourse Subsidiaries in which GAF
has an interest other than through the Company)) and
(iii) another Unrestricted Affiliate under this paragraph (a))
has an Investment; and (b) on and after the Determination Date,
any Person (other than any Subsidiary of the Company)
controlled (as defined in the definition of "Affiliate") by the
Company in which no Affiliate of the Company (other than (i) so
long as ISP is a Recourse Subsidiary of the Company, ISP or any
of its Wholly-Owned Recourse Subsidiaries, (ii) so long as BMCA
is a Recourse Subsidiary of the Company, BMCA or any of its
Wholly-Owned Recourse Subsidiaries, (iii) a Wholly-Owned
Recourse Subsidiary of the Company, (iv) any director or
officer of the Company or any of its Subsidiaries (so long as
such Person is not also a director or officer of GAF or any of
its Affiliates (other than the Company and its Subsidiaries,
except for Non-Recourse Subsidiaries in which GAF has an
interest other than through the Company)) and (v) another
Unrestricted Affiliate under this paragraph (b)) 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.
"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" of any Person
means a Wholly-Owned Subsidiary of such Person that is a
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 a part of this Indenture. The following TIA terms used in
this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder or a
Holder;
"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 Notes.
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,
1995. All financial calculations shall be made as if the
Spin Off occurred as of the Issue Date; provided, however,
that if the Determination Date occurs, all subsequent
financial calculations shall be made without giving effect
to the Spin Off; provided, further, however, that, in such
event, cumulative Consolidated Net Income for purposes of
Section 4.13(a) shall be recalculated from the Applicable
Date without giving effect to the Spin Off.
ARTICLE II
THE NOTES
Section 2.01. Form and Dating. The Initial Notes
and the Trustee's certificate of authentication thereon shall
be substantially in the form of Exhibit A hereto. The Exchange
Notes and the Trustee's certificate of authentication thereon
shall be substantially in the form of Exhibit B. The Notes 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 Notes
and any notation, legend or endorsement on them, and such
approval shall be evidenced by the execution of such Notes by
two Officers of the Company. Each Note shall be dated the date
of its authentication.
The terms and provisions contained in the form of the
Notes, 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 Notes
for the Company by facsimile or manual signature. The
Company's seal may be reproduced or imprinted on the Notes, by
facsimile or otherwise.
If a Person whose signature is on a Note as an
Officer no longer holds that office or position at the time the
Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until the Trustee manually
signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for
delivery (i) Initial Notes for original issue in an aggregate
principal amount (the "Initial Notes Amount") equal to $1,000
principal amount of Initial Notes for each $1,000 principal
amount of 10% Notes exchanged for the Initial Notes pursuant to
the Exchange Offer Circular and Consent Solicitation Statement
dated September 13, 1996, as supplemented by the Supplement to
Exchange Offer Circular and Consent Solicitation Statement
dated October 1, 1996 and (ii) Exchange Notes from time to time
for issue only in exchange for a like principal amount of
Initial Notes, 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 Notes to be authenticated,
the date on which the Notes are to be authenticated and whether
the Notes are to be Initial Notes or Exchange Notes. The
aggregate principal amount of Notes outstanding at any time may
not exceed the Initial Notes Amount, except as provided in
Section 2.07.
The Notes 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 Notes, which
authenticating agent shall be compensated by the Company.
Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the
Trustee may do so, except with regard to the original issuance
of the Notes 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.
If the Notes are to be issued in the form of one or
more Global Notes, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Global Notes
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
Note or Notes 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 Notes may be
presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be
presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Notes 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. 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 Notes.
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 Holders all money held by the
Paying Agent for the payment of principal of or interest on the
Notes, 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. Holder 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
Holders and shall otherwise comply with TIA { 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 such date as the Trustee
may reasonably require of the names and addresses of the
Holders, and the Company shall otherwise comply with TIA
{ 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
Holders and the principal amounts and serial numbers of the
Notes.
Section 2.06. Transfer and Exchange. The Notes
shall be issued in registered form and shall be transferable
only upon the surrender of such Notes for registration of
transfer. When Notes 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 Notes 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, however, that every
Note 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. To permit registrations
of transfer and exchanges, the Company shall execute the Notes,
and the Trustee shall authenticate the Notes at the Registrar's
request. No service charge to the Holder shall be made for any
registration of transfer or exchange, but the Company or the
Trustee may require from the transferring or exchanging Holder
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, 4.19,
4.20 or 9.05). The Registrar or co-Registrar shall not be
required to register the transfer of or exchange of any Note
(i) during a period beginning at the opening of business 15
days before the mailing of a notice of redemption of Notes 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 Note being
redeemed in part.
If a Note 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, may exchange such Note for a
Book-Entry Note by instructing the Trustee to arrange for such
Note to be represented by a beneficial interest in a Global
Note 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 Note which has not been
exchanged for an Exchange Note may request a Note in
certificated form, in exchange in whole or in part, as the case
may be, for such beneficial owner's interest in the Global
Note.
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 new Note or Notes registered in such names and in
such authorized denominations as the Depository, pursuant to
the instructions of the beneficial owner of the Notes
requesting the exchange, shall instruct the Trustee.
Thereupon, the beneficial ownership of such Global Note 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 Note. Any such exchange shall be effected through the
Depository in accordance with the procedures of the Depository
therefor.
Notwithstanding the foregoing, no Global Note 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 Note or its nominee until (i) the
Depository notifies the Company that it is unwilling or unable
to continue as Depository for such Global Note 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 30 days, (ii) the Company
executes and delivers to the Trustee a written notice that all
such Global Notes shall be exchangeable or (iii) there shall
have occurred and be continuing an Event of Default. Upon the
occurrence in respect of any Global Note representing the Notes
of any one or more of the conditions specified in clause (i),
(ii) or (iii) of the preceding sentence, such Global Note may
be registered for transfer or exchange for Notes registered in
the names of, and authenticated and delivered to, such persons
as the Trustee or the Depository, as the case may be, shall
direct.
Except as provided above, any Note authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, any Global Note, whether pursuant to this
Section, Section 2.07, 2.10 or 3.06 or otherwise, shall also be
a Global Note and bear the legend specified in Exhibit C.
Section 2.07. Replacement Notes. If a mutilated
Note is surrendered to the Trustee or if the Holder of a Note
claims that such Note has been lost, destroyed or wrongfully
taken, the Company shall issue a replacement Note, and the
Trustee shall authenticate such replacement Note if the
Trustee's requirements are met. If required by the Trustee or
the Company, an indemnity bond must be provided by the Holder
that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee or any Agent from
any loss which any of them may suffer if a Note is replaced.
The Company or the Trustee may charge such Holder for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of
the Company.
Section 2.08. Outstanding Notes. Notes outstanding
at any time are all Notes that have been authenticated by the
Trustee, except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.08 as
not outstanding. A Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.07, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note 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 Notes payable on that
date, then on and after that date such Notes shall be deemed to
be no longer outstanding and interest on them shall cease to
accrue.
Section 2.09. Treasury Notes. In determining
whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent, Notes 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 Notes which the Trustee actually knows are so
owned shall be so disregarded.
Section 2.10. Temporary Notes. Until definitive
Notes 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 Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall
prepare, and the Trustee shall authenticate, definitive Notes
in exchange for temporary Notes.
Until such exchange, such temporary Notes shall be
entitled to the same rights, benefits and privileges as the
definitive Notes.
Section 2.11. Cancellation. The Company at any time
may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer,
exchange or payment. The Trustee and no one else shall cancel
all Notes surrendered for registration of transfer, exchange,
payment or cancellation. The Company may not issue new Notes
to replace Notes it has paid or delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest. If the Company
defaults in a payment of interest on the Notes, 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 Holders 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 Holder 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 Notes may use a "CUSIP" number. If so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience
to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any
notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, 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 the 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 of
and interest on Book-Entry Notes 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 Notes
represented thereby. The principal of and interest on any
Notes other than Book-Entry Notes shall be payable to the
registered owner of the Notes represented thereby. The
principal of and interest on Notes 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 Notes pursuant to Section 5(a) of the Notes,
it shall notify the Trustee in writing of the redemption date
and the principal amount of Notes 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. If
fewer than all the Notes are to be redeemed, the record date
relating to such redemption shall be selected by the Company
and given to the Trustee together with the 45-day notice, which
record date shall not be prior to the date of such notice nor
more than 15 days after the date of notice to the Trustee.
Section 3.02. Selection of Notes To Be Redeemed. In
the event that less than all of the Notes are to be redeemed at
any time, selection of such Notes for redemption will be made
by the Trustee in compliance with the requirements of the
principal national securities exchange, if any, on which such
Notes are listed or, if such Notes are not then listed on a
national securities exchange, on a pro rata basis, by lot or by
such method as the Trustee shall deem fair and appropriate;
provided, however, that no Notes of a principal amount of
$1,000 or less shall be redeemed in part; provided, further,
that if a partial redemption is made in accordance with the
first paragraph of Section 5(a) of the Notes, selection of the
Notes or portions thereof for redemption shall be made by the
Trustee only on a pro rata basis or on as nearly a pro rata
basis as is practicable (subject to procedures of The
Depository Trust Company), unless such method is otherwise
prohibited. The Trustee shall make the selection from
outstanding Notes not previously called for redemption. The
Trustee may select for redemption portions of the principal
amount at maturity of Notes that have denominations larger than
$1,000, subject to the restriction that Notes and portions of
Notes which the Trustee selects shall be in amounts of $1,000
or a whole multiple of $1,000. Provisions of this Indenture
that apply to Notes called for redemption also apply to
portions of Notes called for redemption. The Trustee shall
notify the Company promptly of the Notes or portions of Notes
to be redeemed.
Section 3.03. Notice of Redemption. Notice of
redemption shall be mailed by first-class mail at least 30 but
not more than 60 days before the redemption date (or, if
applicable, at such other time as is provided by Section 5(a)
of the Notes) to each Holder of Notes to be redeemed at its
registered address.
The notice shall identify the Notes 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 Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(E) if fewer than all the outstanding Notes are to
be redeemed, the identification and principal amounts of
the particular Notes to be redeemed;
(F) that, unless the Company has failed to deposit
with the Paying Agent funds in satisfaction of the
applicable redemption price pursuant to this Indenture,
the interest on Notes called for redemption ceases to
accrue on and after such redemption date; and
(G) 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 Notes.
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), (C) and (E)
at least 45 days before the redemption date.
Section 3.04. Effect of Notice of Redemption. Once
notice of redemption is mailed, Notes 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 Notes 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 Notes to be
redeemed on that date other than Notes or portions of Notes
called for redemption which have been delivered by the Company
to the Trustee for cancellation.
Section 3.06. Notes Redeemed in Part. Upon
surrender of a Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder (at
the Company's expense) a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
ARTICLE IV
COVENANTS
Section 4.01. Payment of Notes. The Company shall
pay, or cause to be paid, the principal of and interest on the
Notes on the dates and in the manner provided herein and in the
Notes. 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 at the rate specified
therefor in the Notes.
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 Notes 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 Notes 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 Notes may be
presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however,
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 (i) its 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, however, 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
cause to be paid or discharged, before any penalty accrues from
the failure to so pay or discharge, (i) 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 (ii) 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 Specified Subsidiary; provided, however,
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) At all times from and after the earlier of
(i) the date of the commencement of the Exchange Offer or the
effectiveness of the Shelf Registration Statement and (ii) the
date that is six months after the Issue Date, in either case,
whether or not the Company is then required to file reports
with the Commission, the Company shall file with the Commission
all such reports and other information as would be required to
be filed with the Commission under the Exchange Act. The
Company shall supply to each Holder and to any other Person who
reasonably requests in writing, without cost, copies of such
reports or other information. In addition, the Company shall,
at its cost, deliver to each Holder, and a prospective
purchaser designated by such Holder, from and after the earlier
of the dates referred to in clauses (i) and (ii) of this
Section 4.06(a), quarterly and annual reports substantially
equivalent to those which would be required under the Exchange
Act if at the time of such request the Company is not a
reporting company under Section 13 or Section 15(d) of the
Exchange Act. The Company also will comply with the other
provisions of TIA { 314(a).
(b) So long as any of the Notes remain outstanding,
the Company shall cause each annual, quarterly and other
financial report mailed or otherwise furnished by it generally
to public stockholders to be filed with the Trustee and mailed
to the Holders at their addresses appearing in the register of
Notes maintained by the Registrar, in each case at the time of
such mailing or furnishing to such stockholders.
(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 exclusively on Officers' Certificates).
(d) The Company shall provide to any holder or any
beneficial owner of Initial 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 Initial Notes in
compliance with Rule 144A under the Securities Act or any
similar rule or regulation adopted by the Commission.
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 Notes 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, however, 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 ISP Subsidiaries. (a) The Company shall
not Issue, directly or indirectly, any Debt or any Preferred
Stock unless, at the time of such Issuance and after giving
effect thereto, (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) The Company shall not permit any ISP Subsidiary
(so long as such ISP Subsidiary is a Subsidiary of the Company)
to Issue, directly or indirectly, any Debt or any Preferred
Stock unless, at the time of such Issuance and after giving
effect thereto, (i) no Default or Event of Default shall have
occurred and be continuing and (ii) the Consolidated EBITDA
Coverage Ratio of ISP 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.
(c) Notwithstanding the foregoing, the Company and
ISP Subsidiaries may Issue the following:
(1) Debt Issued pursuant to the Credit Agreement or
any Refinancing Debt thereof in an aggregate principal
amount outstanding at any time not to exceed $500,000,000;
(2) Debt or Preferred Stock of the Company or any of
its Post-Spin Off Subsidiaries Issued to and held by
(i) ISP or any of its Wholly-Owned Recourse Subsidiaries,
(ii) the Company or any of its Wholly-Owned Recourse Post-
Spin Off Subsidiaries or (iii) on and after the
Determination Date, the Company or any of its Wholly-Owned
Recourse Subsidiaries; provided, however, that (x) any
subsequent transfer of such Debt or such Preferred Stock
to any Person not permitted by the foregoing or (y) any
Wholly-Owned Recourse Subsidiary of ISP or of the Company
that holds such Debt or Preferred Stock ceasing to be a
Wholly-Owned Recourse Subsidiary of ISP or of the Company,
as the case may be, shall be deemed, in each case, to
constitute the Issuance of such Debt or such Preferred
Stock by the Company or such ISP Subsidiary, as the case
may be;
(3) Purchase Money Obligations, including
Refinancing Debt thereof, in an aggregate amount
outstanding at any time not to exceed $30,000,000;
(4) Acquired Debt;
(5) Debt outstanding on the Issue Date (including,
without limitation, the New Money Notes) and the Exchange
Notes;
(6) Refinancing Debt Issued to Refinance any Debt
permitted by clauses (2)-(5) above;
(7) (x) Non-Recourse Debt of a Non-Recourse
Subsidiary of ISP and (y) Guarantees of Non-Recourse Debt
of any Non-Recourse Subsidiary of ISP which Guarantees are
recourse only to the stock of such Non-Recourse
Subsidiary;
(8) on and after the Determination Date, (x) Non-
Recourse Debt of a Non-Recourse Subsidiary of the Company
and (y) Guarantees of Non-Recourse Debt of any Non-
Recourse Subsidiary of the Company which Guarantees are
recourse only to the stock of such Non-Recourse
Subsidiary;
(9) Preferred Stock (other than Redeemable Stock) of
the Company;
(10) so long as no Default or Event of Default has
occurred and is continuing and no Ratings Event has
occurred and is continuing, Debt of any ISP Subsidiary;
and
(11) Debt (other than Debt described in clauses (1)
through (8) and (10) above) in an aggregate principal
amount outstanding at any time not to exceed $50,000,000.
(d) To the extent the Company or any ISP Subsidiary
Guarantees any Debt of the Company or any ISP 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 an ISP Subsidiary Guarantees any Debt of a
Person that, subsequent to the Issuance of such Guarantee,
becomes an ISP Subsidiary, 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 Debt and Preferred Stock
of BMCA Subsidiaries. (a) The Company shall not permit any
BMCA Subsidiary (so long as such BMCA Subsidiary is a
Subsidiary of the Company) to Issue, directly or indirectly,
any Debt or any Preferred Stock unless, at the time of such
Issuance and after giving effect thereto, (i) no Default or
Event of Default shall have occurred and be continuing and
(ii) the Consolidated EBITDA Coverage Ratio of BMCA 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, BMCA Subsidiaries
may Issue the following:
(1) Debt or Preferred Stock of any BMCA Subsidiary
Issued to and held by (i) BMCA or any of its Wholly-Owned
Recourse Subsidiaries, (ii) any Wholly-Owned Recourse
Subsidiary of the Company other than any ISP Subsidiary or
(iii) on and after the Determination Date, the Company or
any of its Wholly-Owned Recourse Subsidiaries; provided,
however, that (x) any subsequent transfer of such Debt or
Preferred Stock to any Person not permitted by the
foregoing or (y) any Wholly-Owned Recourse Subsidiary of
BMCA (or, if applicable, of the Company) that holds such
Debt or Preferred Stock ceasing to be a Wholly-Owned
Recourse Subsidiary of BMCA (or, if applicable, of the
Company) shall be deemed, in each case, to constitute the
Issuance of such Debt or such Preferred Stock by such BMCA
Subsidiary;
(2) Purchase Money Obligations, including
Refinancing Debt thereof, in an aggregate amount
outstanding at any time not to exceed $35,000,000;
(3) Acquired Debt;
(4) Debt outstanding on the Issue Date;
(5) Refinancing Debt Issued to Refinance any Debt
permitted by clauses (1)-(4) above;
(6) (x) Non-Recourse Debt of a Non-Recourse
Subsidiary of BMCA and (y) Guarantees of Non-Recourse Debt
of any Non-Recourse Subsidiary of BMCA which Guarantees
are recourse only to the stock of such Non-Recourse
Subsidiary; and
(7) Debt (other than Debt described in clauses (1)
through (6) above) in an aggregate principal amount
outstanding at any time not to exceed $35,000,000.
(c) To the extent any BMCA Subsidiary Guarantees any
Debt of any other BMCA 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 a BMCA Subsidiary
Guarantees any Debt of a Person that, subsequent to the
Issuance of such Guarantee, becomes a BMCA Subsidiary, 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 4.11. Limitation on Debt and Preferred Stock
of Specified Subsidiaries. (a) The Company shall not permit
any Specified Subsidiary (so long as such Specified Subsidiary
is a Subsidiary of the Company) to Issue, directly or
indirectly, any Debt or any Preferred Stock unless, at the time
of such Issuance and after giving effect thereto, (i) no
Default or Event of Default shall have occurred and be
continuing and (ii) the Consolidated EBITDA Coverage Ratio of
the Specified Subsidiaries (determined on a combined basis) for
its most recently completed four consecutive fiscal quarter
period 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, Specified
Subsidiaries may Issue the following:
(1) Debt or Preferred Stock of any Specified
Subsidiary Issued to and held by any Wholly-Owned Recourse
Subsidiary of such Specified Subsidiary or the Company or
any of its Wholly-Owned Recourse Subsidiaries; provided,
however, that (x) any transfer of such Debt or such
Preferred Stock to any Person not permitted by the
foregoing or (y) such Wholly-Owned Recourse Subsidiary
ceasing to be a Wholly-Owned Recourse Subsidiary of such
Specified Subsidiary or of the Company, as the case may
be, shall, in each case, be deemed to constitute the
Issuance of such Debt or such Preferred Stock by such
Specified Subsidiary;
(2) Purchase Money Obligations in an aggregate
amount outstanding at any time not to exceed $50,000,000;
(3) Acquired Debt;
(4) Debt outstanding on the Issue Date;
(5) Refinancing Debt Issued to Refinance any Debt
permitted by clauses (1)-(4) above;
(6) (x) Non-Recourse Debt of a Non-Recourse
Subsidiary of any Specified Subsidiary and (y) Guarantees
of Non-Recourse Debt of Non-Recourse Subsidiaries which
Guarantees are recourse only to the stock of such Non-
Recourse Subsidiary; and
(7) Debt (other than Debt described in clauses
(1)-(6) above) in an aggregate principal amount
outstanding at any time not to exceed $50,000,000.
(c) To the extent any Specified Subsidiary
Guarantees any Debt of any other Specified 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 a Specified Subsidiary Guarantees any Debt of a Person that,
subsequent to the Issuance of such Guarantee, becomes a
Specified Subsidiary, 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 4.12. Prohibition on Debt and Capital Stock
of Intermediate Parents of ISP and BMCA. Notwithstanding
Section 4.11 (a) and (b):
(a) The Company shall not permit any of its
Subsidiaries (other than, subject to Section 4.09, ISP
Subsidiaries) that, directly or indirectly, owns any
Capital Stock or Debt of any ISP Subsidiary to Issue any
Debt or Capital Stock other than Debt or Capital Stock
Issued to and held by (x) so long as ISP is a Recourse
Subsidiary of the Company, ISP or any of its Wholly-Owned
Recourse Subsidiaries or (y) the Company (or, on and after
the Determination Date, any of its Wholly-Owned Recourse
Subsidiaries); and
(b) The Company shall not permit any of its
Subsidiaries (other than, subject to Section 4.10, BMCA
Subsidiaries) that, directly or indirectly, owns any
Capital Stock or Debt of any BMCA Subsidiary to Issue any
Debt or Capital Stock other than Debt or Capital Stock
Issued to and held by (x) so long as BMCA is a Recourse
Subsidiary of the Company, BMCA or any of its Wholly-Owned
Recourse Subsidiaries or (y) G-I Holdings or any of its
Post-Spin Off Wholly-Owned Recourse Subsidiaries (or, on
and after the Determination Date, the Company or any of
its Wholly-Owned Recourse Subsidiaries).
Section 4.13. Limitation on Restricted Payments and
Restricted Investments. (a) The Company shall not make, and
shall not permit any of its Subsidiaries to make, directly or
indirectly, any Restricted Payment or Restricted Investment at
any time on or after the Issue Date if, at the time of such
Restricted Payment or Restricted Investment or immediately
after giving effect thereto:
(1) a Default or an Event of Default shall have
occurred and be continuing;
(2) the Company is not able to incur at least $1.00
of additional Debt under Section 4.09(a); or
(3) the aggregate amount of Restricted Payments made
since June 30, 1996 (the "Applicable Date") and the
aggregate amount of Restricted Investments made since the
Applicable 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 exceed the sum of:
(i) 50% 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 Applicable 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 Applicable Date of Capital Stock of
the Company (other than Redeemable Stock) or as a
capital contribution;
(iii) 100% of the net cash proceeds received by
the Company from any Person (other than a Subsidiary
of the Company) from the exercise of options or
warrants on Capital Stock of the Company (other than
Redeemable Stock);
(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
Applicable Date; and
(v) $30,000,000.
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.
(b) The foregoing paragraph (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 paragraph (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 paragraph (a); or
(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,
however, that such net cash proceeds so utilized shall not
be included in paragraph (a)(3) in determining the amount
of Restricted Payments or Restricted Investments the
Company could make under paragraph (a), and Restricted
Payments or Restricted Investments made pursuant to this
clause (2) shall not be included in determining the amount
of Restricted Payments or Restricted Investments made or
then outstanding under paragraph (a)(3); or
(3) repurchases of Capital Stock of the Company (or,
prior to the Spin Off, dividends used to repurchase
Capital Stock of GAF), 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 $3,000,000 in any fiscal year; provided,
further, however, that the amount of Restricted Payments
made pursuant to this clause (3) shall not be included in
determining the amount of Restricted Payments made under
paragraph (a)(3).
Section 4.14. Limitation on Liens. (a) The Company
shall not, and shall not permit any of its Specified
Subsidiaries to, directly or indirectly, incur or suffer to
exist any Liens (other than Permitted Liens) upon their
respective properties 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 securing intercompany Debt permitted by
Section 4.11(b)(1);
(2) Liens existing on the Issue Date;
(3) Purchase money Liens on assets of the Company
and its Specified Subsidiaries or improvements or
additions thereto existing or created within 180 days
after the time of acquisition of or improvement or
addition to such assets, or replacements thereof; provided
that (i) such acquisition, improvement or addition is
otherwise permitted by the 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 (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 one time exceed $50,000,000;
(4) Liens securing Acquired Debt; provided, however,
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 Specified Subsidiaries and such
Lien and Acquired Debt were not incurred by the Company or
any of its Specified 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
Specified Subsidiaries, and (ii) any such Lien does not
extend to or cover any property or assets of the Company
or of any of its Specified 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 Specified Subsidiaries;
(5) Liens to secure Refinancing of any Debt secured
by Xxxxx described in clauses (1)-(4) above and (6) below;
provided that (i) the 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; and
(6) Liens on assets of the Company and its Specified
Subsidiaries (other than the Liens described above),
provided that such Liens only secure Debt of the Company
and its Specified Subsidiaries in an aggregate amount not
to exceed at any one time outstanding $50,000,000.
Section 4.15. Prohibition on Certain Transactions.
After the Spin Off, the Company shall not, and shall not permit
any of its Post-Spin Off Subsidiaries to, enter, directly or
indirectly, into, or suffer to exist, any transaction or series
of transactions (including, without limitation, any loan,
advance or investment or any purchase, sale, lease or exchange
of property or the rendering of any service) with GAF or any of
its Post-Spin Off Subsidiaries. The foregoing shall not
prohibit any transaction permitted by Section 4.16(b)(5) or
(c).
Section 4.16. 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, 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,
however, 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) involves aggregate payments or
other consideration in excess of $2,000,000, 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) involves
aggregate payments or other consideration in excess of
$20,000,000 (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 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 does not have any members having no 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) The foregoing paragraph (a) shall not prevent
the following:
(1) any transaction between a Subsidiary of the
Company and its own employee stock ownership or benefit
plan;
(2) any transaction with an officer or director of
the Company or any of its Subsidiaries entered into in the
ordinary course of business (including compensation or
employee benefit arrangements with any such officer or
director);
(3) any business or transaction by an ISP
Subsidiary, the Company or, after the Determination Date,
any Subsidiary of the Company with an Unrestricted
Affiliate;
(4) transactions permitted by Section 4.17;
(5) payments made or actions taken pursuant to any
of the Specified Agreements (or any new agreement referred
to in paragraph (c) below), as any such Specified
Agreement (or new agreement) is, subject to paragraph (c)
below, amended, modified, extended or waived from time to
time;
(6) the making of a Restricted Payment or Restricted
Investment otherwise permitted by Section 4.13(a) or those
transactions specifically permitted by Section 4.13(b);
(7) (i) transactions between or among Non-Recourse
Subsidiaries of ISP, (ii) transactions between or among
Non-Recourse Subsidiaries of BMCA, (iii) transactions
between or among Non-Recourse Subsidiaries of any
Specified Subsidiary and (iv) on or after the
Determination Date, transactions between or among Non-
Recourse Subsidiaries of the Company; or
(8) (i) so long as ISP is a Recourse Subsidiary of
the Company, transactions between or among ISP, its
Recourse Subsidiaries and the Company, (ii) transactions
between or among BMCA and its Recourse Subsidiaries,
(iii) transactions between or among any Specified
Subsidiary and its Recourse Subsidiaries and (iv) on or
after the Determination Date, transactions between or
among the Company and its Recourse Subsidiaries.
(c) The Company will not, and will not permit any of
its Subsidiaries to, amend, modify, extend or waive any
provision of any of the Specified Agreements in any manner
which is significantly adverse to the Company or the Holders
(it being understood that an extension or modification of
either of the Granules Contracts (or any similar granules
purchase 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 4.17. Limitation on Investments in Non-
Recourse Subsidiaries by ISP Subsidiaries and BMCA
Subsidiaries. (a) The Company shall not, and shall not permit
any ISP Subsidiary (so long as such ISP Subsidiary is a
Subsidiary of the Company) to, make Investments in Non-Recourse
Subsidiaries of ISP if, after giving effect thereto, the
cumulative aggregate amount (the amount so expended, if other
than in cash, to be determined by the Board of Directors of
ISP, as evidenced by a Board Resolution) of such Investments,
as of the date of the Investment, made by the Company and ISP
Subsidiaries would exceed 20% of the Consolidated Net Worth of
ISP.
(b) The Company shall not permit any BMCA Subsidiary
(so long as such BMCA Subsidiary is a Subsidiary of the
Company) to make Investments in Non-Recourse Subsidiaries of
BMCA if, after giving effect thereto, the cumulative aggregate
amount (the amount so expended, if other than cash, to be
determined by the Board of Directors of BMCA, as evidenced by a
Board Resolution) of such Investments, as of the date of the
Investment, would exceed $50,000,000.
Section 4.18. Limitation on Dividend and Other
Payment Restrictions Affecting Subsidiaries. The Company shall
not, and shall not permit any of its Recourse Subsidiaries to,
directly or indirectly, create or otherwise cause to exist or
become effective any encumbrance or restriction on the ability
of any such 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, or Issue any Guarantee for the benefit of, the Company or
any of its Subsidiaries, (c) transfer any of its properties or
assets to the Company or any of its Subsidiaries 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 the following:
(1) applicable law;
(2) the Indenture and the indenture governing the
New Money 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) Liens specifically permitted by Section 4.14;
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 or other Debt existing on
the Issue Date and any Refinancing of the Credit Agreement
or any such other Debt; 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 and its Subsidiaries than
those contained in the agreements governing the Debt being
Refinanced;
(7) covenants contained in agreements governing Debt
of BMCA Subsidiaries; provided, however, that such
covenants shall not prohibit the BMCA Subsidiaries from,
directly or indirectly, paying dividends or making loans
or advances to the Company in an aggregate amount less
than the positive difference, if any, between (i) the sum
of (A) $25,000,000 and (B) 50% of the cumulative
Consolidated Net Income (or minus 100% of the Consolidated
Net Loss) of BMCA for the period beginning on the first
day of the fiscal quarter during which such Debt was
issued, and (ii) the aggregate amount of Restricted
Payments and Restricted Investments made by BMCA
Subsidiaries since such date; and
(8) covenants contained in agreements governing Debt
of ISP Subsidiaries; provided, however, that such
covenants shall not prohibit the ISP Subsidiaries from,
directly or indirectly, paying dividends or making loans
or advances to the Company in an aggregate amount less
than the positive difference, if any, between (i) the sum
of (A) $25,000,000 and (B) 50% of the cumulative
Consolidated Net Income (or minus 100% of the Consolidated
Net Loss) of ISP for the period beginning on the first day
of the fiscal quarter during which such Debt was issued,
and (ii) the aggregate amount of Restricted Payments and
Restricted Investments made by ISP Subsidiaries since such
date.
Section 4.19. 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
Notes 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 (or, if lower, the redemption
price then in effect under the third paragraph of Section 5(a)
of the Notes) plus accrued interest thereon to the Change of
Control Payment Date.
(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.
Each Change of Control Notice shall state:
(1) that the change of control offer is being made
pursuant to this Section 4.19 and that all Notes tendered
will be accepted for payment;
(2) the purchase price and the Change of Control
Payment Date;
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in making
payment therefor, any Note 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 Note purchased
pursuant to a change of control offer will be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
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 the Company has the right, pursuant to the
second paragraph under Section 5(a) of the Notes, to
redeem Notes not tendered at 100% of the principal amount
thereof plus accrued interest to the redemption date, plus
the Applicable Premium;
(7) 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 Notes the
Holder delivered for purchase and a statement that such
Xxxxxx is withdrawing his election to have such Note
purchased;
(8) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal
to the unpurchased portion of the Notes surrendered; and
(9) the circumstances and relevant facts regarding
such Change of Control.
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 Notes or portions thereof
tendered pursuant to the Change of Control Notice, (ii) deposit
with the Paying Agent money sufficient to pay the purchase
price of all Notes so tendered and (iii) deliver to the Trustee
Notes so accepted together with an Officers' Certificate
stating the Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly mail to the Holders
of Notes so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail to
such Holders new Notes equal in principal amount to any
unpurchased portion of the Notes surrendered. Any Notes not so
purchased shall be promptly mailed by the Company to the Holder
thereof. For purposes of this Section 4.19, the Trustee shall
act as the Paying Agent.
Section 4.20. 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 the 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, however, 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;
(3) in the case of an Asset Sale prior to the Spin
Off by G-I Holdings or any of its Post-Spin Off
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 (if such
360th day is prior to the Spin Off), (i) to invest in the
businesses that G-I Holdings and its Post-Spin Off
Subsidiaries (or, on or after the Determination Date, 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 the Debt referred to in the last
sentence of the definition of "Debt" or make provision for
the payment thereof, through an escrow or other fund,
(iii) to pay or satisfy Debt or Preferred Stock of any
BMCA Subsidiary and/or (iv) to offer to purchase the
Notes, the New Money Notes, the Senior Discount Notes due
1998 and Series B Discount Notes due 1998 of G-I Holdings
(the "Discount Notes"), the 10% Notes and/or the 11-3/4%
Senior Deferred Coupon Notes due 2004 of BMCA in a tender
offer at a redemption price equal to 100% of the principal
thereof plus accrued interest thereon to the date of
redemption (or, in the case of such Discount Notes and, to
the extent provided in the indenture relating to such BMCA
Notes, 100% of the accreted value thereof); provided,
however, that the Company may defer making such an offer
until the aggregate Net Cash Proceeds from Asset Sales to
be applied pursuant to this clause (3)(iv) equal or exceed
$20,000,000; and
(4) in the case of an Asset Sale by the Company or
any of its Post-Spin Off Subsidiaries, the Company or such
Post-Spin Off 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
the Company and its Post-Spin Off Recourse Subsidiaries
(or, on or after the Determination Date, the Company and
its Recourse Subsidiaries) are engaged in at the time of
such Asset Sale or any like or related business, (ii) on
or after the Determination Date, to pay the Debt referred
to in the last sentence of the definition of "Debt" or
make provision for the payment thereof, through an escrow
or other fund, (iii) to pay or satisfy Debt or Preferred
Stock of the Company or such Post-Spin Off Subsidiary, as
the case may be, and/or (iv) to offer to purchase the
Notes and the New Money Notes, on a pro rata basis, in a
tender offer at a redemption price equal to 100% of the
principal thereof plus accrued interest thereon to the
date of redemption; provided, however, that, prior to the
Spin Off, G-I Holdings shall, to the extent required under
the indentures governing the Discount Notes and the 10%
Notes, first offer to purchase any outstanding Discount
Notes and 10% Notes in a tender offer at a redemption
price equal to, in the case of Discount Notes, 100% of the
accreted value thereof, and in the case of 10% Notes, 100%
of the principal thereof plus accrued interest thereon to
the date of redemption; provided, further, however, that
the Company may defer making any such offer until
aggregate Net Cash Proceeds from Asset Sales to be applied
pursuant to clause (4)(iv) equal or exceed $20,000,000;
provided, however, that (i) the Company and its Subsidiaries
may retain up to $5,000,000 of Net Cash Proceeds from Asset
Sales in any twelve-month period (without complying with clause
(3) or (4)) and (ii) any Asset Sale that would result in a
Change of Control shall not be governed by this Section 4.20
but shall be governed by Section 4.19.
(b) Notice of an offer to purchase the Notes
pursuant to Section 4.20(a) (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 Notes
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 4.20 and that all Notes tendered
will be accepted for payment; provided that if the
aggregate amount of Notes tendered in a Net Proceeds Offer
exceeds the aggregate amount available for the Net
Proceeds Offer, the Company shall select the Notes to be
purchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Company, so that only
Notes 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 4.20(a))
(the "Proceeds Purchase Date");
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless there is a default in making
payment therefor, any Note 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 Note purchased
pursuant to a Net Proceeds Offer will be required to
surrender the Note, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Note
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 of the Notes the Holder
delivered for purchase and a statement that such Xxxxxx is
withdrawing his or her election to have such Notes
purchased; and
(7) that Holders whose Notes are purchased only in
part will be issued new Notes in a principal amount equal
to the unpurchased portion of the Notes surrendered.
On or before the Proceeds Purchase Date, the Company
or such Subsidiary, as the case may be, shall (i) accept for
payment Notes or portions thereof tendered pursuant to the Net
Proceeds Offer which are to be purchased in accordance with
item (b)(1) above, (ii) deposit with the Paying Agent money
sufficient to pay the purchase price of all Notes to be
purchased and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or
portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price. For purposes
of this Section 4.20, the Trustee shall act as the Paying
Agent.
Section 4.21. 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 4.22. 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 Notes, 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.
Section 4.23. Registration Rights. The Company
hereby grants to the Holders the registration rights set forth
on Schedule A hereto, the terms of which are hereby
incorporated by reference.
Section 4.24. Spin Off. Notwithstanding anything in
this Indenture to the contrary, as long as no Default or Event
of Default shall have occurred and be continuing, the Company
may consummate the Spin Off.
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 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
Notes 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; and
(3) immediately after giving effect to such
transaction (other than a merger of G-I Holdings with
the Company after the Determination Date), 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; provided,
however, that, so long as no Default or Event of
Default has occurred and is continuing or would result
therefrom this paragraph shall not prohibit the Spin
Off.
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 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 Notes.
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, or Additional Interest (if any) with
respect to, any Note 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 Note when the same becomes due and
payable at maturity or otherwise or (ii) the Company
fails to redeem or repurchase Notes when required
pursuant to this Indenture or the Notes;
(3) the Company fails to comply with
Section 5.01;
(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 4.20, inclusive;
(5) the Company fails to comply for 60 days after
notice with its other agreements contained in this
Indenture or the Notes (other than those referred to in
clauses (1)-(4) above);
(6) Debt of the Company or any Significant
Subsidiary is not paid within any applicable grace
period or is accelerated by the holders thereof because
of a default and the total principal amount of the
portion of such Debt that is unpaid or accelerated
exceeds $15,000,000 or its foreign currency equivalent
and such default continues for 5 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 Significant
Subsidiary of the Company and (i) there is a period of
60 days following the entry of such judgment or 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 clause (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 Notes
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 Notes. 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 clause (7) above) 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 Notes, by written notice to the Company and the
Trustee, may declare the principal of and accrued interest on
all Notes 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 clause (7) of Section 6.01 above 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 Holder.
The Holders of a majority in aggregate principal
amount at maturity of the Notes then outstanding, by written
notice to the Trustee and the Company, may rescind an
acceleration with respect to the Notes and its consequences if
(i) all existing Defaults and Events of Default, other than the
non-payment of the principal of the Notes 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 Notes or to
enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in
the proceeding. A delay or omission by the Trustee or any
Holder 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.
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 Notes
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 Note 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 Notes
may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. 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 Holder 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 Holder may not pursue any remedy
with respect to this Indenture or the Notes 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 Notes make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer and provide to
the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the
offer of indemnity; and
(5) during such 60-day period, the Holders of a
majority in aggregate principal amount of the
outstanding Notes do not give the Trustee a direction
which, in the opinion of the Trustee, is inconsistent
with the request.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority
over such other Holder.
Section 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal
of and interest on the Note, on or after the respective due
dates expressed in the Note, 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.
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 Notes for the whole amount
due and payable on such Notes for principal, premium, if any,
interest and, to the extent that payment of such interest is
lawful, interest on overdue principal, at the rate per annum
specified in the Notes, 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 Holders allowed in any
judicial proceedings relative to the Company (or any other
obligor upon the Notes), 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 Holder 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
Holders, 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 Holder any
plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any
Holder 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 Holders for amounts due and unpaid on
the Notes for principal and interest, ratably, without
preference or priority of any kind, according to the
amounts due and payable on the Notes for principal and
interest, respectively; and
Third: to the Company or any other obligors on
the Notes, as their interests may appear, or as a court
of competent jurisdiction may direct.
The Trustee may fix a record date and payment date
for any payment to Holders 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 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, 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 Notes.
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
{ 315(a) through (d):
(A) The Trustee may rely on any document 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 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 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 reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance
with such request or direction.
Section 7.02. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may become the
owner or pledgee of Notes 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 may do the same with
like rights. However, the Trustee is subject to TIA {{ 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 Notes, 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 Notes other than its
certificate of authentication.
Section 7.05. Notice of Defaults. If a Default
occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Holder 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 Note, the
Trustee may withhold notice if and so long as a committee of
its Trust Officers in good faith determines that the
withholding of such 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 Holder a report
dated as of May 15 if required by TIA { 313(a). The Trustee
also shall comply with TIA {{ 313(b) and 313(c).
A copy of each such report at the time of its mailing
to Holders shall be filed with the Commission and each stock
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee in
writing if the Notes 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 8.03.
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 or measured by the income or
gross receipts 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 any expense or indemnify 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 Notes
on all money or property held or collected by the Trustee
except money or property held in trust to pay principal of or
interest on particular Notes.
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 Sec-
tion 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 Notes may remove the Trustee by so
notifying 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.
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 of the
outstanding Notes 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
Holder.
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 Notes may
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If any Trustee fails to comply with Section 7.10, any
Holder 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
{ 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 { 310(a)(1). 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 { 310(b).
Section 7.11. Preferential Collection of Claims
Against the Company. The Trustee is subject to TIA { 311(a),
excluding from the operation of TIA { 311(a) any creditor
relationship listed in TIA { 311(b). A Trustee who has
resigned or been removed shall be subject to TIA { 311(a) to
the extent indicated therein.
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; provided, 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).
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01. Discharge of Liability on Notes;
Defeasance. (a) When (i) the Company delivers to the Trustee
all outstanding Notes (other than Notes replaced pursuant to
Section 2.07) for cancellation or (ii) all outstanding Notes
have become due and payable, and the Company irrevocably
deposits with the Trustee money sufficient to pay at maturity
all outstanding Notes, including interest thereon (other than
Notes 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 Notes and this Indenture ("legal defeasance"), or (ii) its
obligations under Sections 4.03, 4.04, 4.06, 4.08 through 4.21
and 4.23 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 limitation contained in
Section 5.01(3) ("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 Notes 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 Notes
have been paid in full. Thereafter, the Company's obligations
in Sections 7.07, 8.04 and 8.05 shall survive.
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 and interest, if any, on the Notes 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 when due on all
the Notes 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 Holders 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 of the Internal Revenue Service
or other change in 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 Notes 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 Notes 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 Notes will occur within 30 days. If the
conditions of the 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
Notes at a future date in accordance with Article III
(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 Notes.
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 or interest that remains unclaimed for two years,
and, thereafter, Holders 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 Notes 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 on or
principal of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of
the Holders of such Notes to receive such payment from the
money or U.S. Government Obligations held by the Trustee or
Paying Agent.
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 Notes without notice to or consent of any
Holder:
(1) to cure any ambiguity, defect or
inconsistency;
(2) to comply with Article V;
(3) to provide for uncertificated Notes in
addition to certificated Notes;
(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 Holders or that
does not adversely affect the rights of any Holder; or
(6) to provide for issuance of the Exchange
Notes, which will have terms substantially identical in
all material respects to the Initial Notes (except that
the transfer restrictions contained in the Initial
Notes will be modified or eliminated, as appropriate),
and which will be treated together with any outstanding
Initial Notes, 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 Holders 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 Notes with the written consent of the Holders of a majority
in aggregate principal amount of the Notes then outstanding,
and the Holders of a majority in aggregate principal amount of
the Notes then outstanding by written notice to the Trustee may
waive future compliance by the Company with any provision of
this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02,
without the consent of each Holder 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 Note 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 Note 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 (or, in the case of redemption, on or
after the redemption date);
(B) reduce the percentage in principal amount of
the outstanding Notes, the consent of the Holders of
which is required for any supplemental indenture or the
consent of such Holders 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 Notes required for
such actions or to provide that certain other
provisions of this Indenture cannot be modified or
waived without the consent of each Holder affected
thereby;
(D) waive a default in the payment of the
principal of or interest on any Note or modify or waive
the Company's obligation to repurchase Notes under
Section 4.19 or 4.20;
(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 Note must be
redeemed or repaid in accordance with the terms of this
Indenture and the Notes.
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 Note 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 Notes then outstanding may
waive compliance in a particular instance by the Company with
any provisions of this Indenture or the Notes.
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 Note or portion of a
Note that evidences the same debt as the consenting Holder's
Note, even if notation of the consent is not made on any Note.
However, any such Holder or subsequent Holder may revoke the
consent as to his Note or portion of a Note. 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 Holder; 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 Note who has
consented to it; and provided, further, that if notice of such
amendment, supplement or waiver is reflected on a Note that
evidences the same debt as the consenting Holder's Note, such
amendment, supplement or waiver shall bind every subsequent
Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note.
Section 9.04. Record Date. The Company shall be
permitted to set a record date for purposes of determining the
identity of Holders 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 { 316(c) of the TIA or (ii) such
other record date as the Company shall select.
Section 9.05. Notation on or Exchange of Notes. If
an amendment, supplement or waiver changes the terms of a Note,
the Trustee may (and, at the request of the Company, shall)
require the Holder of the Note to deliver it to the Trustee.
The Trustee may (and, at the request of the Company, shall)
place an appropriate notation on the Note 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 Note thereafter authenticated. Alternatively,
if the Company or the Trustee so determines, the Company in
exchange for the Note shall issue and the Trustee shall
authenticate a new Note 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 { 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.
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:
c/o ISP Management Company Inc.
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 Holder shall be mailed by first class mail to him at his
address as it appears on the Notes 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 Holder
or any defect in it shall not affect its sufficiency with
respect to other Holders. 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. Holders may communicate pursuant to TIA { 312(b) with
other Holders with respect to their rights under this Indenture
or the Notes. The Company, the Trustee, the Registrar and any
other person shall have the protection of TIA { 312(c).
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 Holders. 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 Notes without
regard to principles of conflicts of law. The Trustee, the
Company and the Holders 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 Notes.
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.
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 Notes or this Indenture or for any claim
based on, in respect of or by reason of, such obligations or
their creation. Each Holder by accepting a Note 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 Notes 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 Notes 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 Notes, 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.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the date first
written above.
ISP HOLDINGS INC.
By: /s/Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Assistant Treasurer
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR"); (2) AGREES THAT IT WILL NOT PRIOR TO THE DATE THAT
IS THREE YEARS AFTER THE LATER OF THE DATE OF ORIGINAL ISSUANCE
OF THIS NOTE AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OF
THE ISSUER WAS THE OWNER OF THIS NOTE (THE "RESALE RESTRICTION
TERMINATION DATE") RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, (C) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF
NEW YORK, AS TRUSTEE, A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR
(F) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, SUBJECT IN EACH OF
THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH ACCOUNT BE
AT ALL TIMES WITHIN ITS CONTROL AND TO COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE BEFORE THE RESALE
RESTRICTION TERMINATION DATE, THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE
TRUSTEE. IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSES (C),
(D) OR (E) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY
A-1
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. THE
FOREGOING RESTRICTIONS ON RESALE WILL NOT APPLY SUBSEQUENT TO
THE RESALE RESTRICTION TERMINATION DATE.
A-2
No. $________
CUSIP No. 000000XX0
ISP HOLDINGS INC.
9 3/4% SENIOR NOTES DUE 2002
ISP HOLDINGS INC., a Delaware corporation (the
"Company"), promises to pay to
, or registered assigns, the principal sum of
Dollars on February 15, 2002 and to pay interest
thereon on February 15 and August 15, in each year, commencing
on February 15, 1997 (each an "Interest Payment Date"),
accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, at the rate specified herein, until the principal hereof
is paid or duly provided for. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Note is registered at the close of
business on the February 1 or August 1, whether or not a
Business Day, as the case may be, immediately preceding such
Interest Payment Date. Any such interest not so punctually
paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the
Notes, to the extent lawful, shall forthwith cease to be
payable to the Holder on such Interest Payment Date, and may be
paid to the Person in whose name this Note is registered at the
close of business on a special record date for the payment of
such defaulted interest to be fixed by the Trustee, notice of
which shall be given to Holders not less than 15 days prior to
such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
Reference is hereby made to the further provisions of
this Note 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-3
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
ISP HOLDINGS INC.
[Seal] By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
Dated:
Trustee's Certificate of Authentication
This is one of the 9 3/4% Senior
Notes due 2002 described in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Authorized Signatory
A-4
[FORM OF REVERSE SIDE INITIAL NOTE]
ISP HOLDINGS INC.
9 3/4% Senior Notes due 2002
1. Interest. ISP HOLDINGS INC., a Delaware
corporation (the "Company"), shall pay interest on overdue
principal at the rate of 9 3/4% per annum. Interest will be
computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Holder must surrender
this Note 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. With respect to certificated
Notes, the Company, however, may pay 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 Notes under an
Indenture dated as of October 18, 1996 (the "Indenture")
between the Company and the Trustee. Capitalized terms used in
this Note and not defined in this Note shall have the meaning
set forth in the Indenture. The terms of the Notes 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 Notes are subject to
all such terms, and Holders are referred to the Indenture and
said Act for a statement of such terms.
The Notes are senior unsecured obligations of the
Company limited to the Initial Notes Amount. This Note is one
of the Initial Notes referred to in the Indenture. The Notes
include the Initial Notes and any Exchange Notes, as defined
A-5
below, issued in exchange for the Initial Notes pursuant to the
Indenture. The Initial Notes and the Exchange Notes are
treated as a single class of securities under the Indenture.
5. Redemption.
(a) Optional Redemption. In the event that on or
prior to October 15, 1999, (x) the Company consummates a sale
of its Common Stock or (y) ISP or the Company consummates a
sale of the Common Stock of ISP or (z) on and after the
Determination Date, BMCA or its parent consummates sale of the
Common Stock of BMCA, the Company may, at its option, redeem,
but only to the extent of net cash proceeds therefrom actually
received by the Company, up to 50% (in the case of a redemption
under clause (x) or (y)) or 25% (in the case of a redemption
under clause (z)) of the principal amount of the Notes then
outstanding at a redemption price equal to 109.75% of the
principal amount thereof plus accrued interest thereon to the
date of redemption; provided, however, that, no such redemption
may be made if and to the extent that, after giving effect
thereto, less than 50% of the principal amount of Notes
originally issued would be outstanding. Any such redemption
shall be made within 75 days of the first consummation of any
such sale.
In the event a Change of Control occurs, the Company
may redeem all, but not less than all, of the Notes then
outstanding, at a redemption price equal to 100% of the
principal amount thereof plus accrued interest to the
redemption date, plus the Applicable Premium. Notice of any
redemption to be made pursuant to this paragraph as a result of
the occurrence of a Change of Control must be given no later
than 10 days after the Change of Control Payment Date
applicable to the Change of Control giving rise to such
redemption, and redemption must be made within 30 days of the
date of the notice.
The Notes will be redeemable, at the Company's
option, in whole at any time or in part from time to time, on
and after October 15, 1999, upon not less than 30 nor more than
60 days' notice, at the following redemption prices (expressed
as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on October 15 of the
year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
A-6
YEAR PERCENTAGE
1999 .......................... 104.8750%
2000 .......................... 102.4375%
2001 .......................... 100.0000%
(b) Mandatory Redemption. The Notes will not have
the benefit of any sinking fund.
6. Put Provisions. Upon a Change of Control, each
Holder of Notes will have the right to cause the Company to
repurchase all or any part (in integral multiples of $1,000) of
the Notes of such Holder at a repurchase price equal to 101% of
the principal amount thereof (or, if lower, the redemption
price then in effect as set forth in the third paragraph of
Section 5(a)) plus accrued interest thereon 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 Section 5 will be mailed at least 30 days but not
more than 60 days before the applicable redemption date (or, if
applicable at such other time as is provided by Section 5(a))
to each Holder of Notes to be redeemed at the Holder's
registered address. If money sufficient to pay the redemption
price and accrued interest on all Notes to be redeemed on the
redemption date is deposited with the Paying Agent on the
redemption date, on and after such date interest ceases to
accrue on such Notes or portions of them. Notes in
denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000.
8. Proceeds on Disposition of Assets. Under certain
circumstances, the Company is required to apply the Net Cash
Proceeds (or a portion thereof) from Asset Sales to offer to
purchase Notes 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 Notes are
in registered form in denominations of $1,000 and integral
multiples of $1,000. A Holder may register the transfer or
exchange of Notes as provided in the Indenture. The Registrar
may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents 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
A-7
Person in whose name this Note 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 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, if the Company deposits with the Trustee money or
U.S. Government Obligations sufficient for the payment of
principal and interest on the Notes to maturity, the Company
will be discharged (to the extent provided in the Indenture)
from the Indenture and the Notes.
13. Amendments, Supplements and Waivers. Subject to
certain exceptions requiring the consent of each Holder
affected, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing Default may be waived with the consent of the
Holders of a majority in principal amount of the then
outstanding Notes. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for assumption of
the obligations of the Company to Holders in accordance with
the terms of the Indenture 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 important limitations and qualifications
described in the Indenture. The Indenture allows for the
consummation of the Spin Off.
15. Successor Corporation. When a successor Person
or other entity assumes all the obligations of its predecessor
A-8
under the Notes and the Indenture, the predecessor Person will
be released from those obligations.
16. Defaults and Remedies. The Notes 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 Notes may declare all the Notes 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
Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations,
Holders of a majority in principal amount of the then
outstanding Notes 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
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 Notes 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 Note waives and releases
all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
19. Authentication. This Note 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).
A-9
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 Notes and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers
either as printed on the Notes 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, attached as Schedule A to the Indenture,
the Company has certain obligations regarding an exchange offer
pursuant to which the Holder of this Note shall have the right
to exchange this Note for the Company's Series B 9 3/4% Senior
Notes due 2002 (the "Exchange Notes"), which have been
registered under the Securities Act, in like principal amount
and having identical terms as the Initial Notes (other than
certain restrictions on transfers). The Holders of the Initial
Notes 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. 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.
The Company will furnish to any Holder upon written
request and without charge a copy of the Indenture. Request
may be made to:
ISP Holdings Inc.
c/o ISP Management Company Inc.
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: Secretary
A-10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note 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 Note 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
Note)
Signature Guarantee:_________________________
In connection with any transfer of any of the Notes evidenced
by this certificate occurring prior to the date that is three
years after the later of the date of original issuance of such
Notes and the last date, if any, on which such Notes were owned
by the Company or any Affiliate of the Company, the undersigned
confirms that such Notes are being transferred:
A-11
CHECK ONE BOX BELOW
(1) __ to the Company or a subsidiary thereof; or
(2) __ to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act of 1933, as
amended) in compliance with Rule 144A; or
(3) __ to an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933, as amended) that has
furnished to the Trustee a signed letter containing
certain representations and agreements (the form of
which letter can be obtained from the Trustee); or
(4) __ outside the United States in compliance with Rule 903
or Rule 904 of Regulation S under the Securities Act
of 1933, as amended; or
(5) __ pursuant to the exemption from registration provided
by Rule 144 under the Securities Act of 1933, as
amended.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes 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 Company or
the Trustee may require, prior to registering any such transfer
of the Notes, in its sole discretion, such legal opinions,
certifications and other information as the Trustee or the
Company has reasonably requested 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-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of this Note
purchased by the Company pursuant to Section 4.19 or 4.20 of
the Indenture, check the appropriate box:
__ __
Section 4.19 / / Section 4.20 / /
____
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.19 or 4.20 of
the Indenture, state the principal amount:
$
Date:________________________Your Signature:
(Sign exactly as your name appears
on the other side of the Note)
Signature Guarantee:
(Signature must be guaranteed)
A-13
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
No. $________
CUSIP No.
ISP HOLDINGS INC.
SERIES B 9 3/4% SENIOR NOTES DUE 2002
ISP HOLDINGS INC., a Delaware corporation (the
"Company"), promises to pay to
, or registered assigns, the principal sum of
Dollars on February 15, 2002 and to pay interest
thereon on February 15 and August 15, in each year, commencing
on February 15, 1997 (each an "Interest Payment Date"),
accruing from the Issue Date or from the most recent Interest
Payment Date to which interest has been paid or duly provided
for, at the rate specified herein, until the principal hereof
is paid or duly provided for. Interest shall be computed on
the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
the Indenture referred to on the reverse hereof, be paid to the
Person in whose name this Note is registered at the close of
business on the February 1 or August 1, whether or not a
Business Day, as the case may be, immediately preceding such
Interest Payment Date. Any such interest not so punctually
paid, or duly provided for, and interest on such defaulted
interest at the then applicable interest rate borne by the
Notes, to the extent lawful, shall forthwith cease to be
payable to the Holder on such Interest Payment Date, and may be
paid to the Person in whose name this Note is registered at the
close of business on a special record date for the payment of
such defaulted interest to be fixed by the Trustee, notice of
which shall be given to Holders not less than 15 days prior to
such special record date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and
B-1
upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
Reference is hereby made to the further provisions of
this Note set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if
set forth at this place.
B-2
IN WITNESS WHEREOF, the Company has caused this Note
to be signed manually or by facsimile by its duly authorized
officers and a facsimile of its corporate seal to be affixed
hereto or imprinted hereon.
ISP HOLDINGS INC.
[Seal] By: ____________________________
Name:
Title:
By: __________________________
Name:
Title:
Dated:
Trustee's Certificate of Authentication
This is one of the Series B 9 3/4%
Notes due 2002 described in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: ___________________________
Authorized Signatory
B-3
[FORM OF REVERSE SIDE EXCHANGE NOTE]
ISP HOLDINGS INC.
Series B 9 3/4% Notes due 2002
1. Interest. ISP HOLDINGS INC., a Delaware
corporation (the "Company"), shall pay interest on overdue
principal at the rate of 9 3/4% per annum. Interest will be
computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment. The Holder must surrender
this Note 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. With respect to certificated
Notes, the Company, however, may pay 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 Notes under
an Indenture dated as of October 18, 1996 (the "Indenture")
between the Company and the Trustee. Capitalized terms used in
this Note and not defined in this Note shall have the meaning
set forth in the Indenture. The terms of the Notes 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 Notes are subject to
all such terms, and Holders are referred to the Indenture and
said Act for a statement of such terms.
The Notes are senior unsecured obligations of the
Company limited to the Initial Notes Amount. This Note is one
of the Exchange Notes referred to in the Indenture. The Notes
include the Exchange Notes and any Initial Notes in exchange
B-4
for which the Exchange Notes were issued pursuant to the
Indenture. The Initial Notes and the Exchange Notes are
treated as a single class of securities under the Indenture.
5. Redemption.
(a) Optional Redemption. In the event that on or
prior to October 15, 1999, (x) the Company consummates a sale
of its Common Stock or (y) ISP or the Company consummates a
sale of the Common Stock of ISP or (z) on and after the
Determination Date, BMCA or its parent consummates sale of the
Common Stock of BMCA, the Company may, at its option, redeem,
but only to the extent of net cash proceeds therefrom actually
received by the Company, up to 50% (in the case of a redemption
under clause (x) or (y)) or 25% (in the case of a redemption
under clause (z)) of the principal amount of the Notes then
outstanding at a redemption price equal to 109.75 % of the
principal amount thereof plus accrued interest thereon to the
date of redemption; provided, however, that, no such redemption
may be made if and to the extent that, after giving effect
thereto, less than 50% of the principal amount of Notes
originally issued would be outstanding. Any such redemption
shall be made within 75 days of the first consummation of any
such sale.
In the event a Change of Control occurs, the Company
may redeem all, but not less than all, of the Notes then
outstanding, at a redemption price equal to 100% of the
principal amount thereof plus accrued interest to the
redemption date, plus the Applicable Premium. Notice of any
redemption to be made pursuant to this paragraph as a result of
the occurrence of a Change of Control must be given no later
than 10 days after the Change of Control Payment Date
applicable to the Change of Control giving rise to such
redemption, and redemption must be made within 30 days of the
date of the notice.
The Notes will be redeemable, at the Company's
option, in whole at any time or in part from time to time, on
and after October 15, 1999, upon not less than 30 nor more than
60 days' notice, at the following redemption prices (expressed
as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on October 15 of the
year set forth below, plus, in each case, accrued and unpaid
interest thereon, if any, to the date of redemption:
B-5
YEAR PERCENTAGE
1999 .......................... 104.8750%
2000 .......................... 102.4375%
2001 .......................... 100.0000%
(b) Mandatory Redemption. The Notes will not have
the benefit of any sinking fund.
6. Put Provisions. Upon a Change of Control, each
Holder of Notes will have the right to cause the Company to
repurchase all or any part (in integral multiples of $1,000) of
the Notes of such Holder at a repurchase price equal to 101% of
the principal amount thereof (or, if lower, the redemption
price then in effect as set forth in the third paragraph of
Section 5(a)) plus accrued interest thereon 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 Section 5 will be mailed at least 30 days but not
more than 60 days before the applicable redemption date (or, if
applicable at such other time as is provided by Section 5(a))
to each Holder of Notes to be redeemed at the Holder's
registered address. If money sufficient to pay the redemption
price and accrued interest on all Notes to be redeemed on the
redemption date is deposited with the Paying Agent on the
redemption date, on and after such date interest ceases to
accrue on such Notes or portions of them. Notes in
denominations larger than $1,000 may be redeemed in part but
only in whole multiples of $1,000.
8. Proceeds on Disposition of Assets. Under
certain circumstances, the Company is required to apply the Net
Cash Proceeds (or a portion thereof) from Asset Sales to offer
to purchase Notes 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 Notes
are in registered form in denominations of $1,000 and integral
multiples of $1,000. A Holder may register the transfer or
exchange of Notes as provided in the Indenture. The Registrar
may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents 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
B-6
Person in whose name this Note 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 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, if the Company deposits with the Trustee money or
U.S. Government Obligations sufficient for the payment of
principal and interest on the Notes to maturity, the Company
will be discharged (to the extent provided in the Indenture)
from the Indenture and the Notes.
13. Amendments, Supplements and Waivers. Subject to
certain exceptions requiring the consent of each Holder
affected, the Indenture or the Notes may be amended or
supplemented with the consent of the Holders of at least a
majority in principal amount of the then outstanding Notes, and
any existing Default may be waived with the consent of the
Holders of a majority in principal amount of the then
outstanding Notes. Without notice to or the consent of any
Holder, the parties thereto may amend or supplement the
Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency, provide for assumption of
the obligations of the Company to Holders in accordance with
the terms of the Indenture 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 important limitations and qualifications
described in the Indenture. The Indenture allows for the
consummation of the Spin Off.
15. Successor Corporation. When a successor Person
or other entity assumes all the obligations of its predecessor
B-7
under the Notes and the Indenture, the predecessor Person will
be released from those obligations.
16. Defaults and Remedies. The Notes 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 Notes may declare all the Notes 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
Notes shall become due and payable immediately without further
action or notice. Holders may not enforce the Indenture or the
Notes except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations,
Holders of a majority in principal amount of the then
outstanding Notes 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
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 Notes 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 Note waives and releases
all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
19. Authentication. This Note 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).
B-8
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 Notes and has directed the Trustee to use CUSIP numbers
in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers
either as printed on the Notes 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:
ISP Holdings Inc.
c/o ISP Management Company Inc.
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: Secretary
B-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note 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 Note 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
Note)
Signature Guarantee:_________________________
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of this Note
purchased by the Company pursuant to Section 4.19 or 4.20 of
the Indenture, check the appropriate box:
__ __
Section 4.19 / / Section 4.20 / /
____
If you want to elect to have only part of this Note
purchased by the Company pursuant to Section 4.19 or 4.20 of
the Indenture, state the principal amount:
$
Date:________________________Your Signature:
(Sign exactly as your name appears
on the other side of the Note)
Signature Guarantee:
(Signature must be guaranteed)
B-11
EXHIBIT C
[FORM OF LEGEND FOR BOOK-ENTRY SECURITIES]
Any Global Note 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 NOTE IS A GLOBAL NOTE 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 NOTE 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
Schedule A
to Indenture
ISP HOLDINGS INC.
9 3/4% Senior Notes Due 2002
REGISTRATION RIGHTS
October 18, 1996
ISP Holdings Inc., a Delaware corporation (the
"Company"), xxxxxx agrees for the benefit of the holders (the
"Holders") of its 9 3/4% Senior Notes due 2002 (the "Notes") as
follows:
1. Registered Exchange Offer. The Company shall
prepare and, not later than the date (the "Filing Deadline")
which is 60 days after the date of expiration (the "Expiration
Date") of the offer to exchange pursuant to which the Notes are
being issued, file with the Securities and Exchange Commission
(the "Commission") a registration statement (the "Exchange
Offer Registration Statement") on an appropriate form under the
Securities Act of 1933, as amended (the "Securities Act"), with
respect to a proposed offer (the "Registered Exchange Offer")
to the Holders of the Notes to issue and deliver to such
Holders, in exchange for the Notes, a like principal amount of
debt securities of the Company identical in all material
respects to the Notes (the "Exchange Notes"), except for the
transfer restrictions relating to the Notes. The Company shall
use its best efforts to cause such Exchange Offer Registration
Statement to become effective under the Securities Act within
120 days after the Expiration Date. Following the declaration
of the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder of the Notes electing to
exchange the Notes for Exchange Notes and (assuming that such
Holder is not an affiliate of the Company within the meaning of
the Securities Act, acquires the Exchange Notes in the ordinary
course of such Holder's business and has no arrangements with
any person to participate in the distribution of the Exchange
Notes) to trade such Exchange Notes from and after their
receipt without any limitations or restrictions under the
Securities Act and the securities laws of the several states of
the United States. In connection with such Registered Exchange
Offer, the Company shall take such further action, including,
without limitation, appropriate filings under state securities
laws, as may be necessary to realize the foregoing objective
subject to the proviso of Section 3(h).
The Company shall include within the prospectus
contained in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution", which shall contain a
summary statement of the positions taken or policies made by
the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of
Exchange Notes received by such broker-dealer in the Registered
Exchange Offer (a "Participating Broker-Dealer"), whether such
positions or policies have been publicly disseminated by the
staff of the Commission or such positions or policies represent
the prevailing views of the staff of the Commission. Such
"Plan of Distribution" section shall also allow the use of the
prospectus by all persons subject to the prospectus delivery
requirements of the Securities Act, including Participating
Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange
Notes.
The Company shall use its best efforts to keep the
Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein, in order to
permit such prospectus to be lawfully delivered by all persons
subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange
Notes; provided that such period shall not exceed 180 days (or
such longer period if extended pursuant to Section 3(j) below).
In connection with the Registered Exchange Offer, the
Company shall:
(a) mail to each Holder a copy of the prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and
related documents;
(b) keep the Registered Exchange Offer open for not
less than 20 business days after the date notice thereof
is mailed to the Holders (or longer if required by
applicable law);
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough
of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Notes at any
time prior to the close of business, New York time, on the
last business day on which the Registered Exchange Offer
shall remain open; and
(e) otherwise comply in all respects with all
applicable laws.
As soon as practicable after the close of the
Registered Exchange Offer the Company shall:
(i) accept for exchange all the Notes tendered and
not validly withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver to The Bank of New York, as trustee (the
"Trustee") for cancellation all the Notes so accepted for
exchange; and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder, Exchange Notes equal in principal
amount to the Notes of such Holder so accepted for
exchange.
The Exchange Notes may be issued under (i) the
Indenture (the "Indenture"), dated as of October 18, 1996,
between the Company and the Trustee or (ii) an indenture
substantially similar to the Indenture, which in either event
will provide that the Exchange Notes will not be subject to the
transfer restrictions set forth in the Indenture and that the
Exchange Notes and the Notes will vote and consent together on
all matters as one class and that none of the Exchange Notes or
the Notes will have the right to vote or consent as a separate
class on any matter.
2. Shelf Registration. If, (i) because of any
change in law or in currently prevailing interpretations of the
staff of the Commission, the Company is not permitted to effect
a Registered Exchange Offer, as contemplated by Section 1
hereof, (ii) the Registered Exchange Offer is not completed
within 180 days of the Issue Date (the "Completion Deadline")
or (iii) any Holder is not eligible to participate in the
Registered Exchange Offer or, in the case of any Holder that
participates in the Registered Exchange Offer, such Holder does
not receive freely tradeable Exchange Notes on the date of the
exchange, the Company shall take the following actions:
(a) The Company shall as promptly as reasonably
practicable file with the Commission and thereafter shall
use its best efforts to cause to be declared effective a
registration statement (the "Shelf Registration Statement"
and, together with the Exchange Offer Registration
Statement, "Registration Statements" and each a
"Registration Statement") on an appropriate form under the
Securities Act relating to the offer and sale of the Notes
by the Holders thereof from time to time in accordance
with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities
Act (hereafter, the "Shelf Registration").
(b) The Company shall use its best efforts to keep
the Shelf Registration Statement continuously effective in
order to permit the prospectus included therein to be
lawfully delivered by the Holders of the Notes for a
period of three years (or for such longer period if
extended pursuant to Section 3(j) below) from the date of
original issuance of the Notes or such shorter period that
will terminate when all the Notes covered by the Shelf
Registration Statement have been sold pursuant thereto;
provided that the Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily
takes any action that would result in Holders of the Notes
covered thereby not being able to offer and sell the Notes
during that period, unless such action is required by
applicable law.
(c) Notwithstanding any other provisions hereof to
the contrary, the Company shall cause the Shelf
Registration Statement and the related prospectus and any
amendment or supplement thereto, as of the effective date
of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with
the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to
contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
3. Registration Procedures. In connection with any
Shelf Registration contemplated by Section 2 hereof and, to the
extent applicable, any Registered Exchange Offer contemplated
by Section 1 hereof, the following provisions shall apply:
(a) The Company shall furnish to the Dealer Manager
(the "Dealer Manager") of the exchange offer under which
the Notes where issued, prior to the filing thereof with
the Commission, a copy of the Registration Statement and
each amendment thereof and each supplement, if any, to the
prospectus included therein and shall obtain the consent
of the Dealer Manager to any such filing, which shall not
be unreasonably withheld.
(b) The Company shall give written notice to the
Holders of the Notes and any Participating Broker-Dealer
from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the
Registered Exchange Offer:
(i) when the Registration Statement or any
amendment thereto has been filed with the Commission
and when the Registration Statement or any post-
effective amendment thereto has become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration
Statement or the prospectus included therein or for
additional information, provided that the contents
need only be disclosed to one counsel appointed by
and on behalf of the Holders of the Notes as
described in Section 4;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the
suspension of the qualification of the Notes for sale
in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(v) of the happening of any event that requires
the Company to make changes in the Registration
Statement or the prospectus in order to make the
statements therein not misleading (which notice shall
be accompanied by an instruction to suspend the use
of the prospectus until the requisite changes have
been made).
(c) The Company shall use its best efforts to
prevent the issuance or obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement
at the earliest possible time.
(d) The Company shall furnish to each Holder of the
Notes included within the coverage of the Shelf
Registration, without charge, at least one copy of the
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits
(including those, if any, incorporated by reference).
(e) The Company shall deliver to any Holder who so
requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-
effective amendment thereto, including financial
statements and schedules, and, if any such Holder
requests, all exhibits (including those incorporated by
reference).
(f) The Company shall deliver to each Holder of the
Notes included within the coverage of the Shelf
Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may
reasonably request. The Company consents, subject to the
provisions hereof, to the use of the prospectus or any
amendment or supplement thereto by each of the selling
Holders of the Notes in connection with the offering and
sale of the Notes covered by the prospectus, or any
amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) The Company shall deliver to any Participating
Broker-Dealer and such other persons required to deliver a
prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and
any amendment or supplement thereto as such persons may
reasonably request. The Company consents, subject to the
provisions hereof, to the use of the prospectus or any
amendment or supplement thereto by, if necessary, any
Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered
Exchange Offer in connection with the offering and sale of
the Exchange Notes covered by the prospectus, or any
amendment or supplement thereto, included in such Exchange
Offer Registration Statement.
(h) Prior to any public offering of the Notes,
pursuant to the Shelf Registration, the Company shall
register or qualify or cooperate with the Holders of the
Notes included therein and their respective counsel in
connection with the registration or qualification of the
Notes for offer and sale under the securities or blue sky
laws of such jurisdictions as any Holder of the Notes
reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer
and sale in such jurisdictions of the Notes covered by the
Shelf Registration; provided that the Company shall not be
required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or
(ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction
where it is not then so subject.
(i) The Company shall cooperate with the Holders of
the Notes to facilitate the timely preparation and
delivery of certificates representing the Notes to be sold
in the Shelf Registration free of any restrictive legends
and in such denominations and registered in such names as
the Holders may request a reasonable period of time prior
to sales of the Notes pursuant to the Shelf Registration.
(j) Upon the occurrence of any event contemplated by
Section 3(b)(v) above, the Company shall promptly prepare
a post-effective amendment to the Registration Statement
or a supplement to the related prospectus or file any
other required document so that, as thereafter delivered
to Holders of the Notes or the Exchange Notes, the
prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein, in light of the
circumstances under which they were made, not misleading.
If the Company notifies the Holders of the Notes and any
known Participating Broker-Dealer in accordance with
Section 3(b)(v) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been
made, then the Holders of the Notes and any such
Participating Broker-Dealers shall suspend use of such
prospectus, and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above
and the Exchange Offer Registration Statement provided for
in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such
notice to and including the date when the Holders of the
Notes and any known Participating Broker-Dealer shall have
received such amended or supplemented prospectus pursuant
to this Section 3(j).
(k) Not later than the effective date of the
applicable Registration Statement, the Company will
provide a CUSIP number for the Notes or Exchange Notes, as
the case may be, and provide the applicable trustee with
printed certificates for the Notes or Exchange Notes, as
the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available
to its securities holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after
the end of a 12-month period (or 90 days, if such period
is a fiscal year) beginning with the first month of the
Company's first fiscal quarter commencing after the
effective date of the Shelf Registration, which statement
shall cover such 12-month period.
(m) The Company shall cause the Indenture (or an
indenture substantially identical to the Indenture in the
case of a Registered Exchange Offer) to be qualified under
the Trust Indenture Act of 1939, as amended.
(n) The Company may require each Holder of the Notes
to be sold pursuant to the Shelf Registration Statement to
furnish to the Company such information regarding the
Holder and the distribution of the Notes as the Company
may from time to time reasonably require for inclusion in
the Shelf Registration Statement.
(o) The Company shall enter into such customary
agreements (including if requested an underwriting
agreement in customary form) and take all such other
action, if any, as any Holder of the Notes shall
reasonably request in order to facilitate the disposition
of the Notes pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the
Company shall (i) make reasonably available for inspection
by the Holders of the Notes, any underwriter participating
in any disposition pursuant to the Shelf Registration
Statement and any attorney, accountant or other agent
retained by the Holders of the Notes or any such
underwriter all relevant financial and other records,
pertinent corporate documents and properties of the
Company and (ii) cause the Company's officers, directors
and employees to supply all relevant information
reasonably requested by the Holders of the Notes or any
such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement; provided
that the foregoing inspection and information gathering
shall be coordinated on behalf of the parties, by one
counsel designated by and on behalf of such parties as
described in Section 4.
(q) In the case of the Registered Exchange Offer,
the Company shall (i) make reasonably available for
inspection by any known Participating Broker-Dealer and
any attorney, accountant or other agent retained by such
Participating Broker-Dealer all relevant financial and
other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's
officers, directors and employees to supply all relevant
information reasonably requested by such Participating
Broker-Dealer or any such attorney, accountant or agent in
connection with the Exchange Offer Registration Statement;
provided that the foregoing inspection and information
gathering shall be coordinated on behalf of the parties,
by one counsel designated by and on behalf of such parties
as described in Section 4.
(r) In the case of any Shelf Registration, the
Company, if requested by any Holder of the Notes, shall
cause its counsel to deliver an opinion relating to the
Notes in customary form, cause its officers to execute and
deliver all customary documents and certificates requested
by any underwriters of the Notes and cause its independent
public accountants to provide to the selling Holders of
the Notes and any underwriter therefor a comfort letter in
customary form.
(s) In the case of the Registered Exchange Offer, if
requested by any known Participating Broker-Dealer, the
Company shall cause its outside counsel to deliver to such
Participating Broker-Dealer a signed opinion in customary
form in connection with the preparation of a Registration
Statement and shall cause its independent public
accountants to deliver to such Participating Broker-Dealer
a comfort letter in customary form.
4. Registration Expenses. The Company shall bear
all expenses incurred in connection with the performance of its
obligations under Sections 1 through 3 hereof (including the
reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx,
counsel to the Dealer Manager, incurred in connection with the
Registered Exchange Offer) and, in the event of a Shelf
Registration, shall bear or reimburse the Holders of the Notes
for the reasonable fees and disbursements of one firm of
counsel designated by the Holders of a majority in principal
amount of the Notes to act as counsel for the Holders of the
Notes in connection therewith, which counsel shall be
reasonably satisfactory to the Company.
5. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Holder of the Notes and each
person, if any, who controls such Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange
Act and each director, officer, employee or agent of such
Holder and each director, officer, employee or agent of each
such controlling person (each Holder, such controlling persons
and each such director, officer, employee and agent are
referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or
several, or any actions in respect thereof (including, but not
limited to, any losses, claims, damages, liabilities or actions
relating to purchases and sales of the Notes), to which each
Indemnified Party may become subject under the Securities Act,
the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material
fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto, or arise out of, or are
based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall
reimburse, as incurred, the Indemnified Parties for any legal
or other expenses reasonably incurred by them in connection
with investigating or defending or preparing to defend against
or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action in respect
thereof; provided, however, that the Company shall not be
liable in any such case to the extent that such loss, claim,
damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged
omission made in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus relating to a Shelf Registration in reliance upon
and in conformity with written information furnished to the
Company by or on behalf of such Holder specifically for
inclusion therein; provided, further, that (A) the Company
shall not be obligated to indemnify or hold harmless any
Indemnified Party in respect of any loss, claim, damage,
liability or action to the extent that any such loss, claim,
damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in a preliminary Registration Statement
or preliminary prospectus if the applicable Holder failed to
deliver a copy of a final prospectus or an amended or
supplemented Registration Statement or prospectus that was made
available by the Company to such Indemnified Party prior to the
applicable sale to the person or persons asserting the claim
which is the basis of indemnification and such final prospectus
or amended or supplemented Registration Statement or prospectus
cured such defect and (B) this indemnity agreement will be in
addition to any liability which the Company may otherwise have
to such Indemnified Party. The Company will not settle or
compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder
(whether or not such Indemnified Party or any person who
controls such Indemnified Party within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding) without the
prior written consent of such Indemnified Party, which consent
shall not be unreasonably withheld, unless such settlement,
compromise or consent includes an unconditional release of such
Indemnified Party and each such controlling person from all
liability arising out of such claim, action, suit or
proceeding. No Indemnified Party will settle or compromise or
consent to the entry or any judgment in any pending or
threatened claim, action, suit or proceeding in respect of
which indemnification may be sought without the prior written
consent of the Company (which consent will not be unreasonably
withheld). The Company shall also indemnify underwriters,
selling brokers, dealer managers and similar securities
industry professionals participating in the distribution (as
described in such Registration Statement), their officers and
directors and each person who controls such persons (within the
meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders of the Notes if
requested by such Holders.
(b) The Company agrees to indemnify and hold
harmless any Participating Broker-Dealer and each person, if
any, who controls such Participating Broker-Dealer within the
meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act and each director, officer, employee or agent
of such Participating Broker-Dealer and each director, officer,
employee or agent of each such controlling person (any
Participating Broker-Dealer, such controlling persons and each
such director, officer, employee and agent of such
Participating Broker-Dealer or such controlling person are
referred to collectively as the "Exchange Offer Indemnified
Parties") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales
of Exchange Notes), to which each Exchange Offer Indemnified
Party may become subject under the Securities Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Exchange Offer Registration Statement or
prospectus contained therein or in any amendment or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and shall reimburse, as incurred, the Exchange
Offer Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending or preparing to defend against or appearing as a
third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided,
however, that the Company shall not be liable in any such case
to the extent that such loss, claim, damage or liability arises
out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in any Exchange
Offer Registration Statement or prospectus contained therein or
in any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by
or on behalf of such Participating Broker-Dealer specifically
for inclusion therein; provided, further, that (A) the Company
shall not be obligated to indemnify or hold harmless any
Exchange Offer Indemnified Party in respect of any loss, claim,
damage, liability or action to the extent that any such loss,
claim, damages, liability or action arises out of or is based
upon an untrue statement or alleged untrue statement or
omission or alleged omission made in a preliminary Registration
Statement or preliminary prospectus if the applicable
Participating Broker-Dealer failed to deliver a copy of, a
final prospectus or an amended or supplemented Registration
Statement or prospectus that was made available by the Company
to such Exchange Offer Indemnified Party prior to the
applicable sale to the person or persons asserting the claim
which is the basis of indemnification and such final prospectus
or amended or supplemented Registration Statement or prospectus
cured such defect and (B) this indemnity agreement will be in
addition to any liability which the Company may otherwise have
to such Exchange Offer Indemnified Party. The Company will not
settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought hereunder
(whether or not such Exchange Offer Indemnified Party or any
person who controls such Exchange Offer Indemnified Party
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act is a party to such claim,
action, suit or proceeding) without the prior written consent
of such Exchange Offer Indemnified Party, which consent shall
not be unreasonably withheld, unless such settlement,
compromise or consent includes an unconditional release of such
Exchange Offer Indemnified Party and each such controlling
person from all liability arising out of such claim, action,
suit or proceeding. No Exchange Offer Indemnified Party will
settle or compromise or consent to the entry of any judgment in
any pending or threatened claim, action, suit or proceeding in
respect of which indemnification may be sought without the
prior written consent of the Company (which will not be
unreasonably withheld).
(c) Each Holder of the Notes, severally and not
jointly, will indemnify and hold harmless the Company, each
director and officer of the Company and each person, if any,
who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act from and
against any losses, claims, damages or liabilities or any
actions in respect thereof, to which the Company or any such
director, officer or controlling person may become subject
under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to
make the statements therein not misleading, but in each case
only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to
the Company by or on behalf of such Holder specifically for
inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such director,
officer or controlling person in connection with the
investigating or defending or preparing to defend against or
appearing as a third-party witness in connection with any loss,
claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which
such Holder may otherwise have to the Company or any of its
directors, officers or controlling persons.
(d) Promptly after receipt by an indemnified party
under this Section 5 of notice of the commencement of any
action or proceeding (including a governmental investigation),
such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but
the omission so to notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a), (b) or (c)
above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the
indemnifying party of substantial rights or defenses and
(ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a), (b) or
(c) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party; provided,
however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there
may be one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying
party shall not have the right to direct the defense of such
action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so
to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, which
approval shall not be unreasonably withheld, the indemnifying
party will not be liable to such indemnified party under this
Section 5 for any legal or other expenses, other than
reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with
such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to
local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the
same general allegations or circumstances) or (ii) the
indemnifying party has authorized the employment of counsel for
the indemnified party at the expense of the indemnifying party.
(e) In circumstances in which the indemnity
agreement provided for in the preceding paragraphs of this
Section 5 is unavailable or insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) (other than by
reason of exceptions provided in such Section 5), each
indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof), in such
proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the
one hand and the indemnified party on the other from the
offering of the Notes or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties
shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company on the one
hand or such Holder or such other indemnified person, as the
case may be, on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company
and each indemnified party agrees that it would not be
equitable if the amount of such contribution were determined by
pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to in the first sentence of this
paragraph (e). Notwithstanding any other provision of this
Section 5(e), the Holders of the Notes shall not be required to
contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Notes
pursuant to a Registration Statement exceeds the amount of
damages which such Holders have otherwise been required to pay
in respect of the same or a similar claim, and no person guilty
of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (e), each
director, officer, employee and agent of any indemnified party
and each person, if any, who controls such indemnified party
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as such indemnified party and each director and
officer of the Company, and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company.
(f) The agreements contained in this Section 5 shall
survive the sale of the Notes and the Exchange Notes pursuant
to a Registration Statement and shall remain in full force and
effect, regardless of any termination or cancellation of the
Indenture or any investigation made by or on behalf of any
indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest at a rate of 0.5% per annum of the
principal amount of the Notes (the "Additional Interest") shall
be assessed as follows:
(i) if the Exchange Offer Registration Statement is
not filed with the Commission by the Filing Deadline,
then, commencing on the Filing Deadline, Additional
Interest shall be assessed on the Notes;
(ii) if the Registered Exchange Offer is not
completed or a Shelf Registration is not declared
effective by the Commission by the Completion Deadline,
then, commencing on the Completion Deadline, Additional
Interest shall be assessed on the Notes; and
(iii) if (A) the Company has not exchanged Exchange
Notes for all the Notes validly tendered in accordance
with the terms of the Registered Exchange Offer on or
prior to 30 business days after the date on which the
Exchange Offer Registration Statement was declared
effective, or (B) if applicable, the Shelf Registration
Statement has been declared effective and it ceases to be
effective prior to three years (or such later date if such
three-year period is extended pursuant to Section 3(j)
above or such shorter period as is provided in
Section 2(b)) from the Expiration Date, then Additional
Interest shall be assessed on the Notes commencing on
(x) the 31st business day after such effective date in the
case of (A) above, or (y) the day such Shelf Registration
Statement ceases to be effective in the case of (B) above;
provided, however, that (1) upon the filing of the Exchange
Offer Registration Statement or the Completion Deadline in the
case of (i) above, (2) upon completion of the Registered
Exchange Offer or the effectiveness of the Shelf Registration
Statement in the case of (ii) above, or (3) upon the exchange
of Exchange Notes for all the Notes validly tendered in
accordance with the terms of the Registered Exchange Offer, or
upon the effectiveness of the Shelf Registration Statement
which has ceased to remain effective prior to three years (or
such later date if extended pursuant to Section 3(j) above or
such shorter period as is provided in Section 2(b)) from the
date of original issuance of the Notes in the case of (iii)
above, Additional Interest on the Notes as a result of such
clause (i), (ii) or (iii) shall immediately cease to accrue.
(b) Any amount of Additional Interest due pursuant
to clauses (i), (ii) or (iii) of Section 6(a) above will be
payable in cash semiannually in arrears on each Interest
Payment Date (as defined in the Notes), commencing with the
first such Interest Payment Date occurring after any such
Additional Interest commences to accrue. The amount of
Additional Interest will be determined by multiplying the
Additional Interest by a fraction, the numerator of which is
the number of days such Additional Interest rate was applicable
during such period determined on the basis of a 360-day year
comprised of twelve 30-day months, and the denominator of which
is 360.
(c) If the Company effects the Registered Exchange
Offer, the Company will be entitled to close the Registered
Exchange Offer provided that the Company has accepted all the
Notes theretofore validly tendered in accordance with the terms
of the Registered Exchange Offer.
7. Miscellaneous.
(a) Amendments and Waivers. The provisions hereof
may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, except by the Company and the written consent of Holders
of a majority in aggregate principal amount of the Notes,
determined in accordance with the terms of the Indenture.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand delivery, first-class mail, telex, telecopy, or air
courier which guarantees overnight delivery:
(1) if to a Holder of the Notes, in accordance with
Section 10.02 of the Indenture;
(2) if to the Company, at its address as follows:
c/o ISP Management Company Inc.
0000 Xxxx Xxxx
Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
All such notices and communications to the Company
shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; three business days after
being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged by
recipient's telecopy operator, if telecopied; and on the day
delivered, if sent by overnight air courier guaranteeing next
day delivery. All such notices and communications to the
Holders shall be deemed to have been duly given if given as
provided in Section 10.02 of the Indenture.
(c) Successors and Assigns. The provisions hereof
shall be binding upon the Company and its successors and
assigns.
(d) Headings. The headings herein are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(e) Severability. If any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
