<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 24, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
P. H. GLATFELTER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
PENNSYLVANIA 2621 23-0628360
(STATE OR JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
228 SOUTH MAIN STREET, SPRING GROVE, PENNSYLVANIA 17362, (717) 225-4711
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
R. S. WOOD
SECRETARY AND TREASURER
P. H. GLATFELTER COMPANY
228 SOUTH MAIN STREET, SPRING GROVE, PENNSYLVANIA 17362, (717) 225-4711
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
MORRIS CHESTON, JR., ESQ. STUART H. COLEMAN, ESQ.
BALLARD SPAHR ANDREWS & INGERSOLL STROOCK & STROOCK & LAVAN LLP
1735 MARKET STREET 180 MAIDEN LANE
PHILADELPHIA, PA 19103 NEW YORK, NEW YORK 10038
(215) 665-8500 (212) 806-5400
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
AMOUNT PROPOSED PROPOSED
TITLE OF EACH CLASS OF TO BE MAXIMUM AGGREGATE MAXIMUM OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED OFFERING PRICE(1) PRICE PER UNIT(1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6 7/8% Notes due 2007, Series B... $150,000,000 100% $150,000,000 $45,454.55
==========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933.
------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
DATED SEPTEMBER 24, 1997
P. H. GLATFELTER COMPANY
OFFER TO EXCHANGE
Its 6 7/8% Notes due 2007, Series B
For Any and All of Its Outstanding 6 7/8% Notes due
2007
The Exchange Offer will expire at 5:00 P.M.
GLATFELTER LOGO
New York City time, on , 1997,
unless extended.
------------------------
P. H. Glatfelter Company, a Pennsylvania corporation (the "Company"), hereby
offers, upon the terms and conditions set forth in this Prospectus (as the same
may be amended or supplemented from time to time, the "Prospectus") and the
accompanying Letter of Transmittal (which together constitute the "Exchange
Offer"), to exchange $1,000 principal amount of its 6 7/8% Notes due 2007,
Series B (the "Exchange Notes"), which will have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which this Prospectus is a part (the "Exchange Offer
Registration Statement"), for each $1,000 principal amount of its outstanding
6 7/8% Notes due 2007 (the "Old Notes" and collectively with the Exchange Notes,
the "Notes"), of which $150,000,000 aggregate principal amount is outstanding.
The form and terms of the Exchange Notes are identical in all material respects
to the form and term of the Old Notes (which they replace) except that (i) the
Exchange Notes will bear a Series B designation and will have been registered
under the Securities Act and therefore will not be subject to certain
restrictions on transfer applicable to the Old Notes and will not be entitled to
registration rights, (ii) the Exchange Notes are issuable in minimum
denominations of $1,000 compared to minimum denominations of $100,000 for the
Old Notes, and (iii) the Exchange Notes will not bear legends restricting their
transfer and will not contain certain provisions which were included in the
terms of the Old Notes relating to an increase in the interest rate in certain
circumstances relating to the timing of the Exchange Offer. The Exchange Notes
will evidence the same debt as the Old Notes (which they replace) and will be
issued under and be entitled to the benefits of the Indenture, dated July 22,
1997, between the Company and The Bank of New York, as Trustee (the
"Indenture"), governing the Notes. See "The Exchange Offer" and "Description of
Notes."
The Company will accept for exchange any and all Old Notes validly tendered
and not withdrawn prior to 5:00 p.m., New York City time, on , 1997,
unless extended by the Company in its sole discretion (the "Expiration Date").
Notwithstanding the foregoing, the Company will not extend the Expiration Date
beyond December 19, 1997. Tenders of Old Notes may be withdrawn at any time
prior to 5:00 p.m. on the Expiration Date. The Exchange Offer is subject to
certain customary conditions. The Old Notes were sold by the Company on July 22,
1997 to the Initial Purchasers (as defined) in a transaction not registered
under the Securities Act in reliance upon an exemption under the Securities Act.
The Initial Purchasers subsequently placed the Old Notes with qualified
institutional buyers that agreed to comply with certain transfer restrictions
and other conditions in reliance upon Rule 144A under the Securities Act.
Accordingly, the Old Notes may not be reoffered, resold or otherwise transferred
in the United States unless registered under the Securities Act or unless an
applicable exemption from the registration requirements of the Securities Act is
available. The Exchange Notes are being offered hereunder in order to satisfy
the obligations of the Company under the Registration Rights Agreement (as
defined) entered into by the Company in connection with the offering of the Old
Notes. See "The Exchange Offer."
Based on no-action letters issued by the staff (the "Staff") of the
Securities and Exchange Commission (the "Commission") to third parties, the
Company believes the Exchange Notes issued pursuant to the Exchange Offer may be
offered for resale, resold and otherwise transferred by any holder thereof
(other than holders who are broker-dealers) without further compliance with the
registration and prospectus delivery provisions of the Securities Act. However,
any purchaser of Old Notes who is an affiliate of the Company or who intends to
participate in the Exchange Offer for the purpose of distributing the Exchange
Notes, or any broker-dealer who purchased the Old Notes from the Company to
resell pursuant to Rule 144A or any other available exemption under the
Securities Act, (i) will not be able to rely on the interpretation of the Staff
set forth in the above-mentioned no-action letters, (ii) will not be entitled to
tender its Old Notes in the Exchange Offer and (iii) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any sale or transfer of the Old Notes unless such sale or
transfer is made pursuant to an exemption from such requirements. Each
broker-dealer that acquired Old Notes for its own account as a result of
market-making or other trading activities (a "Participating Broker-Dealer") that
receives Exchange Notes for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes. The Letter of Transmittal states that by so acknowledging
and by delivering a prospectus, a Participating Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a Participating Broker-Dealer in connection with resales of Exchange
Notes received in exchange for Old Notes where such Old Notes were acquired by
such Participating Broker-Dealer as a result of market-making activities or
other trading activities. The Company has agreed that, for a period of up to 180
days after the Expiration Date, it will make this Prospectus available to any
Participating Broker-Dealer for use in connection with any such resale. See
"Plan of Distribution."
Holders of Old Notes not tendered and accepted in the Exchange Offer will
continue to hold such Notes and will be entitled to all the rights and benefits
other than registration rights and will be subject to the limitations applicable
thereto under the Indenture and with respect to transfer under the Securities
Act. The Company will pay all the expenses incurred by it incident to the
Exchange Offer. See "The Exchange Offer."
Interest on the Exchange Notes will accrue from the last January 15 or July
15 (each an "Interest Payment Date") on which interest was paid on the Old Notes
surrendered in exchange therefore or, if no interest has been paid on the Old
Notes, from July 22, 1997.
Prior to the Exchange Offer, there has been only a limited secondary market
and no public market for the Notes. The Exchange Notes will be a new issue of
securities for which there currently is no market. Although the Initial
Purchasers have informed the Company that they each currently intend to make a
market in the Exchange Notes, they are not obligated to do so, and any such
market making may be discontinued at any time without notice. Accordingly, there
can be no assurance as to the development or liquidity of any market for the
Exchange Notes. The Company currently does not intend to apply for listing of
the Exchange Notes on any securities exchange or for quotation through Nasdaq.
WE ARE NOT ASKING FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND ONE.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS , 1997
<PAGE> 3
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-4 (the "Exchange Offer Registration Statement," which term shall encompass all
amendments, exhibits, annexes and schedules thereto) pursuant to the Securities
Act, and the rules and regulations promulgated thereunder, covering the Exchange
Notes being offered hereby. This Prospectus does not contain all the information
set forth in the Exchange Offer Registration Statement. For further information
with respect to the Company and the Exchange Offer, reference is made to the
Exchange Offer Registration Statement. Statements made in this Prospectus as to
the contents of any contract, agreement or other document referred to are not
necessarily complete and in each instance reference is made to the copy of such
contract, agreement or other document filed as an exhibit to the Exchange Offer
Registration Statement, and each such statement shall be deemed qualified in its
entirety by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Commission. The Exchange Offer Registration Statement, including the exhibits
thereto, together with reports, proxy statements and other information filed by
the Company may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
at the Regional Offices of the Commission: 7 World Trade Center, New York, New
York 10048; and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and copies of such materials can be obtained by mail from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Company's Common Stock is
listed on the American Stock Exchange. Such information may also be accessed
electronically by means of the Commission's home page on the Internet
(http://www.sec.gov). Such reports, proxy statements and other information
concerning the Company can also be inspected and copied at the offices of the
American Stock Exchange, 86 Trinity Place, New York, New York 10005.
Whether or not the Company is obligated under the Exchange Act to file such
reports, information and documents in the future, the Company, while any of the
Notes remain outstanding, has agreed to furnish to the holders of the Notes and
file with the Commission (unless the Commission will not accept such a filing)
(i) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company
were required to file such forms, including for each a "Management's Discussion
and Analysis of Results of Operations and Financial Condition" and, with respect
to the annual information only, a report thereon by the Company's independent
certified public accountants and (ii) all reports that would be required to be
filed with the Commission on Form 8-K if the Company were required to file such
reports. In addition, for so long as any Notes remain outstanding, the Company
has agreed to make available to any beneficial owner or prospective purchaser of
the Notes, in connection with any sale thereof, the information required
pursuant to Rule 144A(d)(4) promulgated under the Securities Act, during any
period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1997 and June 30, 1997.
3. The Company's Current Reports on Form 8-K dated January 27, 1997,
January 30, 1997 and July 11, 1997.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the Exchange Offer shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from and after the
respective dates of filing
2
<PAGE> 4
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein or contained in this Prospectus shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that any statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents which have been or may be
incorporated in this Prospectus by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in any
such documents). Such requests should be directed to the Secretary, at the
principal offices of the Company, 228 South Main Street, Spring Glove,
Pennsylvania 17362, telephone number (717) 225-4711. In order to ensure timely
delivery of the documents, any request should be made not later than five (5)
days prior to the Expiration Date.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus may include "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995. Any statements with
regard to the Company's expectations as to industry conditions and its financial
results, demand for or pricing of its products and other aspects of its business
may constitute forward looking statements. Although the Company makes such
statements based on assumptions which it believes to be reasonable, there can be
no assurance that actual results will not differ materially from the Company's
expectations. Accordingly, the Company hereby identifies the following important
factors, among others, which could cause its results to differ from any results
which might be projected, forecasted or estimated in any such forward-looking
statements: (i) variations in demand for or pricing of its products, (ii)
changes in the cost or availability of raw materials used by the Company, in
particular market pulp, pulp substitutes and wastepaper; (iii) changes in
industry paper production capacity, including the construction of new mills, the
closing of mills and incremental changes due to capital expenditures or
productivity increases; (iv) the gain or loss of significant customers; (v) cost
and other effects of environmental compliance, cleanup, damages, remediation or
restoration, or personal injury or property damage related thereto, such as the
cost of natural resource restoration or damages related to the presence of
polychlorinated biphenyls ("PCBs") in the lower Fox River on which the Company's
Neenah mill is located; (vi) significant changes in cigarette consumption, both
domestically and internationally; (vii) enactment of adverse state or federal
legislation or changes in government policy or regulation; (viii) adverse
results in litigation; and (ix) disruptions in production and/or increased costs
due to labor disputes.
3
<PAGE> 5
PROSPECTUS SUMMARY
The following summary does not purport to be complete and is qualified in
its entirety by reference to the more detailed information, including the
audited Consolidated Financial Statements of the Company, including the notes
thereto, and the unaudited Condensed Consolidated Financial Statements of the
Company, including the notes thereto, appearing elsewhere herein or incorporated
by reference herein. Unless the context otherwise requires, references in this
Prospectus to the "Company" shall include the Company and its subsidiaries.
THE COMPANY
The Company is a manufacturer of printing papers and tobacco and other
specialty papers. The Company sells its products in most parts of the United
States and in a number of foreign countries, either through wholesale paper
merchants, brokers and agents, or direct to customers.
Most of the Company's printing paper products are sold into the uncoated
free-sheet portion of the industry. The Company's printing paper products are
used principally for the printing of case bound and quality paperback books,
commercial and financial printing and envelope converting. Sales of paper for
book publishing and commercial printing are generally made through wholesale
paper merchants, while sales of paper to financial printers and converters are
generally made directly.
The Company's tobacco and other specialty papers are used for cigarette
manufacturing and other specialty uses such as the manufacture of playing cards,
stamps, labels and surgical gowns. Sales of these papers are generally made
directly to the converter of the paper.
The Company's paper mills are located in Spring Grove, Pennsylvania, Pisgah
Forest, North Carolina, and Neenah, Wisconsin. The Spring Grove facility is an
integrated paper manufacturing plant, producing a substantial part of its fiber
requirements from pulpwood. The Pisgah Forest mill produces flax fiber pulp used
to manufacture some of its tobacco paper products and utilizes purchased virgin
wood pulp and deinked pulp to manufacture nearly all of its other papers. The
Neenah mill recycles a wide range of high-grade wastepapers to provide its
principal fiber raw material. All three mills recycle internally generated waste
to supply part of the fiber required for operations.
The Company began operations in Spring Grove, Pennsylvania in 1864 and was
incorporated as a Pennsylvania corporation in 1905. Its principal offices are
located at 228 South Main Street, Spring Grove, Pennsylvania 17362, telephone
number (717) 225-4711.
THE OLD NOTES OFFERING
Notes...................... The Old Notes were sold by the Company on July 22,
1997 to Bear, Stearns & Co. Inc. and BT Securities
Corporation (collectively, the "Initial
Purchasers") pursuant to a Purchase Agreement dated
July 22, 1997 (the "Purchase Agreement"). The
Initial Purchasers subsequently resold the Old
Notes to qualified institutional buyers that agreed
to comply with certain transfer restrictions and
other conditions pursuant to Rule 144A under the
Securities Act.
Registration Rights
Agreement.................. Pursuant to the Purchase Agreement, the Company and
the Initial Purchasers entered into a Registration
Rights Agreement dated July 22, 1997 (the
"Registration Rights Agreement"), which grants the
holders of the Notes certain exchange and
registration rights. The Exchange Offer is intended
to satisfy such exchange rights which terminate
upon the consummation of the Exchange Offer.
4
<PAGE> 6
THE EXCHANGE OFFER
Securities Offered......... $150,000,000 aggregate principal amount of 6 7/8%
Notes due 2007, Series B (the "Exchange Notes").
The Exchange Offer......... $1,000 principal amount of the Exchange Notes in
exchange for each $1,000 principal amount of Old
Notes. As of the date hereof, $150,000,000
aggregate principal amount of Old Notes are
outstanding. The Company will issue the Exchange
Notes to holders on or promptly after the
Expiration Date.
Based on existing interpretations of the Securities
Act by the Staff set forth in several no-action
letters to third parties, and subject to the
immediately following sentence, the Company
believes that the Exchange Notes issued pursuant to
the Exchange Offer may be offered for resale,
resold and otherwise transferred by the holders
thereof (other than holders who are broker-dealers)
without further compliance with the registration
and prospectus delivery provisions of the
Securities Act. However, any purchaser of Old Notes
who is an affiliate of the Company or who intends
to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes, or any
broker-dealer who purchased the Old Notes from the
Company to resell pursuant to Rule 144A or any
other available exemption under the Securities Act,
(i) will not be able to rely on the interpretation
of the Staff set forth in the above-mentioned
no-action letters, (ii) will not be entitled to
tender its Old Notes in the Exchange Offer and
(iii) must comply with the registration and
prospectus delivery requirements of the Securities
Act in connection with any sale or transfer of the
Old Notes unless such sale or transfer is made
pursuant to an exemption from such requirements.
Each broker-dealer that acquired Old Notes for its
own account as a result of market-making or other
trading activities (a "Participating
Broker-Dealer") that receives Exchange Notes for
its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes.
The Letter of Transmittal states that by so
acknowledging and by delivering a prospectus, a
Participating Broker-Dealer will not be deemed to
admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to
time, may be used by a Participating Broker-Dealer
in connection with resales of Exchange Notes
received in exchange for Old Notes where such Old
Notes were acquired by such Participating
Broker-Dealer as a result of market-making
activities or other trading activities. The Company
has agreed that, for a period not to exceed 180
days after the Expiration Date, it will make this
Prospectus available to any Participating Broker-
Dealer for use in connection with any such resale.
See "Plan of Distribution." Failure to comply with
such prospectus delivery requirements may result in
liability under the Securities Act for which the
holder is not indemnified by the Company.
Expiration Date............ 5:00 p.m., New York City time, on
, 1997 unless the Exchange
Offer is extended, in which case the term
"Expiration Date" means the latest date and time to
which the Exchange Offer is extended.
5
<PAGE> 7
Accrued Interest on the
Exchange Notes and on
the Old Notes............ Each Exchange Note, and any Old Note not exchanged,
will bear interest at the rate set forth on the
cover page hereof from the later of July 22, 1997
and the most recent Interest Payment Date to which
interest has been paid on the Exchange Notes or on
the Old Notes exchanged for the Exchange Notes, as
the case may be, payable semi-annually on January
15 and July 15 in each year, commencing January 15,
1998, to the person in whose name the Exchange Note
(or any predecessor Note) is registered at the
close of business on the January 1 or the July 1
next preceding such Interest Payment Date. See
"Description of Notes -- Principal, Maturity and
Interest."
Conditions to the Exchange
Offer.................... The Exchange Offer is subject to certain customary
conditions, which may be waived by the Company. See
"The Exchange Offer -- Conditions."
Procedures for Tendering
Old Notes.................. Each holder of Old Notes wishing to accept the
Exchange Offer must complete, sign and date the
accompanying Letter of Transmittal, or a facsimile
thereof, in accordance with the instructions
contained herein and therein, and mail or otherwise
deliver such Letter of Transmittal, or such
facsimile, together with the Old Notes and any
other required documentation, or an Agent's Message
(as defined) in lieu thereof, to the Exchange Agent
(as defined) at the address set forth herein. By
executing the Letter of Transmittal, each holder
will represent to the Company that, among other
things, the Exchange Notes acquired pursuant to the
Exchange Offer are being obtained in the ordinary
course of business of the person receiving such
Exchange Notes, whether or not such person is the
holder, that neither the holder nor any such other
person has any arrangement or understanding with
any person to participate in the distribution of
such Exchange Notes and that neither the holder nor
any such other person is an "affiliate," as defined
under Rule 405 of the Securities Act, of the
Company. See "The Exchange Offer -- Purpose and
Effect of the Exchange Offer" and "-- Procedures
for Tendering."
Untendered Old Notes....... Following the consummation of the Exchange Offer,
holders of Old Notes eligible to participate but
who do not tender their Old Notes will not have any
further exchange or registration rights and such
Old Notes will continue to be subject to certain
restrictions on transfer. Accordingly, the
liquidity of the market for such Old Notes could be
adversely affected.
Consequences of Failure to
Exchange................. The Old Notes that are not exchanged pursuant to
the Exchange Offer will remain restricted
securities. Accordingly, such Old Notes may be
resold only (i) to the Company, (ii) pursuant to
Rule 144A or Rule 144 under the Securities Act or
pursuant to some other exemption under the
Securities Act (iii) outside the United states to a
foreign person pursuant to the requirements of Rule
904 under the Securities Act or (iv) pursuant to an
effective registration statement under the
Securities Act. See "The Exchange
Offer -- Consequences of Failure to Exchange."
6
<PAGE> 8
Shelf Registration
Statement.................. If any holder of the Old Notes that participates in
the Exchange Offer does not receive Exchange Notes
on the date of the exchange that may be sold
without restriction under state and federal
securities laws (other than due solely to the
status of such holder as an affiliate of the
Company within the meaning of the Securities Act or
to the holder having an arrangement with any person
to participate in a distribution (within the
meaning of the Securities Act), and under certain
other circumstances), the Company has agreed to
register the Old Notes on a shelf registration
statement (the "Shelf Registration Statement") and
use its best efforts to cause it to be declared
effective by the Commission as promptly as
practical on or after the consummation of the
Exchange Offer. The Company has agreed to maintain
the effectiveness of the Shelf Registration
Statement for, under certain circumstances, a
maximum of two years, to cover resales of the Old
Notes held by any such holders. See "The Exchange
Offer -- Purpose and Effect of the Exchange Offer."
Special Procedures for
Beneficial Owners.......... Any beneficial owner whose Old Notes are registered
in the name of a broker, dealer, commercial bank,
trust company or other nominee and who wishes to
tender should contact such registered holder
promptly and instruct such registered holder to
tender on such beneficial owner's behalf. If such
beneficial owner wishes to tender on such owner's
own behalf such owner must, prior to completing and
executing the Letter of Transmittal and delivering
its Old Notes, either make appropriate arrangements
to register ownership of the Old Notes in such
owner's name or obtain a properly completed bond
power from the registered holder. The transfer of
registered ownership may take considerable time.
The Company will keep the Exchange Offer open for
not less than thirty days in order to provide for
the transfer of registered ownership.
Guaranteed Delivery
Procedures............... Holders of Old Notes who wish to tender their Old
Notes and whose Old Notes are not immediately
available or who cannot deliver their Old Notes,
the Letter of Transmittal or any other documents
required by the Letter of Transmittal, or an
Agent's Message in lieu thereof, to the Exchange
Agent (or comply with the procedures for book-entry
transfer) prior to the Expiration Date must tender
their Old Notes according to the guaranteed
delivery procedures set forth in "The Exchange
Offer -- Guaranteed Delivery Procedures."
Withdrawal Rights.......... Tenders may be withdrawn at any time prior to 5:00
p.m., New York City time on the Expiration Date.
Acceptance of Old Notes and
Delivery of Exchange
Notes.................... The Company will accept for exchange any and all
Old Notes which are properly tendered and not
withdrawn in the Exchange Offer prior to 5:00 p.m.,
New York City time on the Expiration Date. The
Exchange Notes issued pursuant to the Exchange
Offer will be delivered promptly following the
Expiration Date. See "The Exchange Offer -- Purpose
and Effect of the Exchange Offer."
Accounting Treatment....... The Exchange Notes will be recorded at the same
carrying value as the Old Notes, which is face
value, as reflected in the Company's accounting
records on the date of exchange. See "The Exchange
Offer -- Accounting Treatment."
7
<PAGE> 9
Federal Income Tax
Considerations........... The exchange of the Exchange Notes for the Old
Notes pursuant to the Exchange Offer should not be
a taxable event to the holder and thus the holder
should not recognize any taxable gain or loss as a
result of the exchange. See "Certain Federal Income
Tax Consequences."
Use of Proceeds............ There will be no cash proceeds to the Company from
the exchange pursuant to the Exchange Offer.
Exchange Agent............. The Bank of New York.
THE EXCHANGE NOTES
General.................... The form and terms of the Exchange Notes are the
same as the form and terms of the Old Notes (which
they replace) except that (i) the Exchange Notes
bear a Series B designation, (ii) the Exchange
Notes have been registered under the Securities Act
and, therefore, will not bear legends restricting
the transfer thereof, (iii) the holders of Exchange
Notes will not be entitled to certain rights under
the Registration Rights Agreement, including the
provisions providing for an increase in the
interest rate on the Old Notes in certain
circumstances relating to the timing of the
Exchange Offer (other than with respect to periods
prior to the issuance of such Exchange Notes),
which rights will terminate when the Exchange Offer
is consummated and (iv) the Exchange Notes will be
issuable in minimum denominations of $1,000
compared to minimum denominations of $100,000 for
the Old Notes. See "The Exchange Offer -- Purpose
and Effect of the Exchange Offer." The Exchange
Notes will evidence the same debt as the Old Notes
and will be entitled to the benefits of the
Indenture. See "The Exchange Offer -- Terms of the
Exchange Offer."
Securities Offered......... $150,000,000 aggregate principal amount of 6 7/8%
Notes due 2007, Series B.
Maturity Date.............. July 15, 2007.
Interest Payment Dates..... Each January 15 and July 15, commencing January 15,
1998.
Record Dates............... Each January 1 and July 1.
Denominations.............. The Exchange Notes will be issued in minimum
denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
Optional Redemption........ The Notes are redeemable, in whole or in part, at
the option of the Company at any time at a
redemption price equal to the greater of (i) 100%
of their principal amount, plus accrued and unpaid
interest thereon to the date of redemption, or (ii)
the sum of (a) the present values of the remaining
scheduled payments of principal and interest
thereon discounted to the date of redemption on a
semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted
Treasury Rate (as defined herein), plus (b) accrued
interest on the Notes to the date of redemption. If
a redemption date does not fall on an Interest
Payment Date, then, with respect to the interest
payment immediately succeeding the redemption date,
only the unaccrued portion of such interest payment
as of the redemption date shall be included in any
calculation pursuant to clause (ii)(a).
8
<PAGE> 10
Sinking Fund............... None.
Ranking.................... The Exchange Notes will constitute unsecured
unsubordinated indebtedness of the Company and will
rank equally in right of payment, on a pari passu
basis, with all existing and future unsecured and
unsubordinated indebtedness of the Company. The
Exchange Notes will be effectively subordinated to
all existing and future indebtedness, trade
payables, guarantees, lease obligations, letter of
credit obligations and other obligations of the
Company's subsidiaries.
Absence of Market for
the Exchange Notes....... The Exchange Notes will be a new issue of
securities for which there currently is no market.
Although the Initial Purchasers have informed the
Company that they currently intend to make a market
in the Exchange Notes, the Initial Purchasers are
not obligated to do so, and any such market-making
may be discontinued at any time without notice.
Accordingly, there can be no assurance as to the
development or liquidity of any market for the
Exchange Notes. The Company does not intend to
apply for listing of the Exchange Notes on any
securities exchange or for quotation on Nasdaq.
Modification of the
Indenture................ The Company and the Trustee, without the consent of
the holders of the Notes, may amend the Indenture,
if in the opinion of the Trustee, such change does
not adversely affect the rights of the holders in
any material respect. Other modifications to the
Indenture may be made with the consent of holders
of a majority of the principal amount of the Notes
then outstanding except that consent is required
from all holders of Notes in instances such as
reductions in the amount or timing of interest
payments, reductions in the principal and changes
in the maturity, redemption or repurchase dates of
the Notes. See "Description of
Notes -- Modification."
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratios of earnings to fixed charges for
the Company for the fiscal years ended December 31, 1992, 1993, 1994, 1995 and
1996 and for the six months ended June 30, 1996 and 1997. For the purpose of
computing the ratio of earnings to fixed charges, (1) "earnings" consist of
income before income taxes and interest on debt (excluding interest capitalized
during the period) and (2) "fixed charges" consist of total interest on debt
(including interest capitalized during the period). The ratios set forth below
are not indicative of expected future ratios because the issuance of the Notes
will result in increased fixed charges.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
---------------------------------------- ------------
1992 1993 1994 1995 1996 1996 1997
------- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges........... 1,031.4 5.5 -- (a) 11.5 11.5 11.7 9.3
</TABLE>
- ---------------
(a) Earnings were insufficient to cover fixed charges by $195,840,000. See
footnote (a) to the Selected Consolidated Financial Data on page 12.
9
<PAGE> 11
RECENT DEVELOPMENTS
GWS VALUCH, INC.
In February 1997, the Company formed GWS Valuch, Inc. ("GWS Valuch"), a
corporation organized under the laws of the State of Delaware, with the
intention that GWS Valuch would qualify as a real estate investment trust. The
Company invested approximately $122,500,000 to acquire approximately 99.9% of
the voting Class A common stock of GWS Valuch. GWS Valuch also issued to the
Company 150,000 shares of step-down preferred stock (the "Step-Down Preferred
Stock") having a liquidation preference of $150,000,000, with an initial
dividend of approximately 13.9% and an effective yield of approximately 8.1%.
GWS Valuch was consolidated in the Company's financial statements and a line
item entitled "preferred stock of subsidiary" was reported on the Condensed
Consolidated Balance Sheet dated June 30, 1997. On the Company's Condensed
Consolidated Statements of Income and Retained Earnings for the period ended
June 30, 1997, a "preferred stock of subsidiary-expense" was reported which was
based on the effective yield of the Step-Down Preferred Stock.
Immediately following the establishment and capitalization of GWS Valuch on
February 24, 1997, the Company borrowed $270,000,000 from GWS Valuch under a
note to be secured by certain real estate assets of the Company and a subsidiary
with an aggregate fair market value equal to or in excess of 110% of the
principal amount of such note. Using the proceeds of the note and other
available cash, the Company immediately repaid, with interest, an amount
initially borrowed to purchase the Class A common stock of GWS Valuch.
Subsequent to the above transactions, the Internal Revenue Service
announced in Notice 97-21, 1997-11 I.R.B. 9 (February 27, 1997) (the "Notice")
that it intended to issue regulations with retroactive effect on transactions
using self-amortizing investments in conduit financing entities. As a result of
the issuance of the Notice, there has been a substantially increased likelihood
that the Company could lose certain tax benefits arising from GWS Valuch's
Step-Down Preferred Stock financing. Accordingly, on July 2, 1997, GWS Valuch
redeemed all 150,000 outstanding shares of the Step-Down Preferred Stock.
DEFEASANCE OF CERTAIN COVENANTS RELATING TO OUTSTANDING NOTES
On February 24, 1997, the Company deposited approximately $154,757,000 into
a trust to defease certain covenants under the indenture dated as of January 15,
1993 under which the $150,000,000 principal amount of the Company's 5 7/8% notes
due March 1, 1998 (the "5 7/8% Notes") are outstanding. On March 1, 1997,
$4,406,000 of the amount in trust was used to pay interest due on the 5 7/8%
Notes. The balance of the amount in trust and interest earned thereon will be
applied solely to pay the principal of, and remaining interest due on, the
5 7/8% Notes through the date of maturity thereof.
BANK FACILITY
On June 30, 1997, the Company entered into a short-term, unsecured loan
(the "Bank Facility") with Bankers Trust Company in the principal amount of
approximately $144,675,000. The proceeds from the Bank Facility were contributed
by the Company to GWS Valuch in exchange for approximately 145,000 shares of
Class A common stock, and were used by GWS Valuch to redeem the Step-Down
Preferred Stock. The principal amount of the Bank Facility, together with all
accrued and unpaid interest thereon, was repaid by the Company on July 22, 1997
with the proceeds from the sale of the Old Notes.
USE OF PROCEEDS
The Exchange Offer is intended to satisfy certain of the Company's
obligations under the Registration Rights Agreement. The Company will not
receive any cash proceeds from the issuance of the Exchange Notes in the
Exchange Offer. The Net Proceeds of approximately $148,654,000 from the issuance
of the Old Notes were used to repay the amounts outstanding under the Bank
Facility and for general corporate purposes.
10
<PAGE> 12
CAPITALIZATION
The following table sets forth as of June 30, 1997 the actual
capitalization of the Company, and the capitalization of the Company (i) on a
pro forma basis after giving effect to the Bank Facility and the redemption of
the Step-Down Preferred Stock of GWS Valuch and (ii) on a pro forma as adjusted
basis after giving effect to the sale of the Old Notes in the offering and the
application of the net proceeds therefrom, as if such transactions had occurred
on June 30, 1997. The table should be read in conjunction with the Company's
Consolidated Financial Statements and unaudited Condensed Consolidated Financial
Statements incorporated by reference herein.
<TABLE>
<CAPTION>
JUNE 30, 1997
---------------------------------------
PROFORMA
ACTUAL PROFORMA AS ADJUSTED
--------- --------- -----------
(IN THOUSANDS)
<S> <C> <C> <C>
Long-term debt(a):
Bank Facility................................. $ -- $ 144,675 $ --
6 7/8% Notes due 2007......................... -- -- 150,000
-------- -------- --------
Total long-term debt.................. -- 144,675 150,000
Preferred stock of subsidiary(b)................ 146,967 -- --
Shareholders' equity:
Common stock.................................. 544 544 544
Capital in excess of par value................ 42,045 42,045 42,045
Retained earnings............................. 471,608 471,608 471,608
-------- -------- --------
Total................................. 514,197 514,197 514,197
Less cost of common stock in treasury......... (180,501) (180,501) (180,501)
-------- -------- --------
Total shareholders' equity............ 333,696 333,696 333,696
Total capitalization.................. $ 480,663 $ 478,371 $ 483,696
======== ======== ========
</TABLE>
- ---------------
(a) Excludes $150,000,000 principal amount of the Company's 5 7/8% Notes. See
"Recent Developments -- Defeasance of Certain Covenants Relating to
Outstanding Notes."
(b) Represents interest in GWS Valuch represented by the Step-Down Preferred
Stock.
11
<PAGE> 13
SELECTED CONSOLIDATED FINANCIAL DATA
The selected financial data presented below as of and for the fiscal years
ended December 31, 1994, 1995 and 1996 are derived from the Company's
Consolidated Financial Statements which are incorporated by reference herein and
have been audited by Deloitte & Touche LLP, independent certified public
accountants. The selected financial data as of and for the fiscal years ended
December 31, 1992 and 1993 are derived from the Company's Consolidated Financial
Statements. The selected financial data presented below as of and for the six
months ended June 30, 1996 and 1997 are derived from the Company's unaudited
Condensed Consolidated Financial Statements. The unaudited Condensed
Consolidated Financial Statements for the six months ended June 30, 1996 and
1997, in the opinion of management, include all adjustments (all of which were
of a normal recurring nature) necessary to fairly present the financial
information for such periods. The results of operations for the six months ended
June 30, 1997 are not necessarily indicative of the results to be expected for
the full fiscal year. This data should be read in conjunction with the Company's
Consolidated Financial Statements and unaudited Condensed Consolidated Financial
Statements, including the notes thereto, incorporated by reference herein.
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------------------ ---------------
1992 1993 1994 1995 1996 1996 1997
------ ------ ------ ------ ------ ------ ------
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Net sales............................ $540.1 $473.5 $478.3 $623.7 $566.1 $285.0 $284.1
Cost of products sold................ 422.0 399.3 437.7 482.1 434.5 217.7 226.8
Selling, general and administrative
expenses.......................... 35.0 31.3 27.2 36.4 35.5 18.6 18.9
Other expense (income) -- net........ (7.7) (5.7) (2.7) (2.4) (1.8) (0.9) (0.8)
Unusual items -- expense(a).......... -- 13.2 208.9 -- -- -- --
------ ------ ------ ------ ------ ------ ------
Income (loss) before income taxes.... 90.8 35.4 (192.8) 107.6 97.9 49.6 39.2
====== ====== ====== ====== ====== ====== ======
Income (loss) before accounting
changes........................... $ 56.5 $ 20.4 (118.3) $ 65.8 $ 60.4 $ 30.2 $ 24.0
------ ------ ------ ------ ------ ------ ------
Income (loss) per common share before
accounting changes(b)............. $ 1.27 $ 0.46 $(2.67) $ 1.49 $ 1.41 $ 0.70 $ 0.57
Cash dividends declared per
share(b).......................... $ 0.70 $ 0.70 $ 0.70 $ 0.70 $ 0.70 $ 0.35 $ 0.35
BALANCE SHEET DATA (AS OF THE END OF
THE PERIOD):
Working capital...................... $ 44.7 $ 94.5 $ 31.1 $ 76.4 $101.9 $ 91.1 $ 98.4
Total assets(c)...................... 648.5 842.1 650.8 673.1 715.3 681.9 862.8
Long-term debt (excluding current
maturities)....................... -- 150.0 150.0 150.0 150.0 150.0 --
Preferred stock of subsidiary........ -- -- -- -- -- -- 147.0
Shareholders' equity................. 457.0 441.4 295.7 315.4 331.0 317.6 333.7
</TABLE>
- ---------------
(a) Reflects a pre-tax charge for right sizing and restructuring of $13,229,000
in 1993 and a pre-tax charge for writedown of impaired assets of
$208,949,000 in 1994.
(b) Income (loss) per common share before accounting changes and cash dividends
declared per share have been computed on the basis of the weighted average
number of shares of common stock and common stock equivalents outstanding
each year. See Notes 1(b) and 3 to the Company's Consolidated Financial
Statements incorporated by reference herein.
(c) Includes an increase of $61,062,000 in 1993 for the adoption of Statement of
Financial Accounting Standards No. 109.
12
<PAGE> 14
BUSINESS
The Company is a manufacturer of printing papers and tobacco and other
specialty papers. The Company sells its products in most parts of the United
States and in a number of foreign countries, either through wholesale paper
merchants, brokers and agents, or direct to customers.
Most of the Company's printing paper products are sold into the uncoated
free-sheet portion of the industry. The Company's printing paper products are
used principally for the printing of case bound and quality paperback books,
commercial and financial printing and envelope converting. Sales of paper for
book publishing and commercial printing are generally made through wholesale
paper merchants, while sales of paper to financial printers and converters
generally are made directly.
The Company's tobacco and other specialty papers are used for cigarette
manufacturing and other specialty uses such as the manufacturer of playing
cards, stamps, labels and surgical gowns. Sales of these papers are generally
made directly to the converter of the paper.
The Company's paper mills are located in Spring Grove, Pennsylvania, Pisgah
Forest, North Carolina, and Neenah, Wisconsin. The Spring Grove facility is an
integrated paper manufacturing plant, producing a substantial part of its fiber
requirements from pulpwood. The Pisgah Forest mill produces flax fiber pulp used
to manufacture some of its tobacco paper products and utilizes purchased virgin
wood pulp and deinked pulp to manufacture nearly all of its other papers. The
Neenah mill recycles a wide range of high-grade wastepapers to provide its
principal fiber raw material. All three mills recycle internally generated waste
to supply part of the fiber required for operations.
The Company began operations in Spring Grove, Pennsylvania in 1864 and was
incorporated as a Pennsylvania corporation in 1905. Its principal offices are
located at 228 South Main Street, Spring Grove, Pennsylvania 17362, telephone
number (717) 225-4711.
ENVIRONMENTAL MATTERS
The Company is subject to loss contingencies resulting from regulation by
various federal, state, local and foreign governmental authorities with respect
to the environmental impact of air and water emissions and noise from its mills
as well as its disposal of solid waste generated by its operations. In order to
comply with environmental laws and regulations, the Company has incurred
substantial capital and operating expenditures over the past several years. The
Company anticipates that environmental regulation of the Company's operations
will continue to become more burdensome and that capital and operating
expenditures will continue, and perhaps increase, in the future. In addition,
the Company may incur obligations to remove or mitigate any adverse effects on
the environment resulting from its operations, including the restoration of
natural resources, and liability for personal injury and damage to property,
including natural resources.
The amount and timing of future expenditures for environmental compliance,
clean-up, remediation and personal injury, natural resource damage and property
damage liability cannot be ascertained with any certainty due to, among other
things, the unknown extent and nature of any contamination, the extent and
timing of any technological advances for pollution control, the remedial or
restoration actions which may be required and the number and financial resources
of any other responsible parties.
The Company and six other companies which operate or formerly operated
facilities on the lower Fox River in Wisconsin continue to negotiate with the
State of Wisconsin, the United States Departments of the Interior and Justice
and the United States Fish & Wildlife Service regarding claims for natural
resources restoration and damages under the federal Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA") and other laws associated
with the alleged discharge of polychlorinated biphenyls ("PCBs") into the lower
Fox River on which the Company's Neenah mill is located. Effective as of March
1, 1997, the Company and the six other companies entered into an agreement with
the United States which provided that, between March 1 and May 29, 1997, all
limitations periods were tolled and the parties would forbear from litigation;
effective May 29, 1997, the parties entered into an agreement to extend the time
of the tolling and forbearance agreement to July 28, 1997; effective July 28,
1997, the parties entered into an agreement to extend the time of the tolling
and forbearance agreement to October 3, 1997.
13
<PAGE> 15
On June 17, 1997, the United States Environmental Protection Agency
("EPA"), Region 5, announced its intention to begin the process to list the
lower Fox River on the National Priorities List ("NPL") maintained by EPA under
CERCLA. Further, by letter dated July 3, 1997, EPA provided "special notice"
under CERCLA and invited the Company and the six other companies to begin
discussions concerning terms under which the companies would agree to perform a
remedial investigation and feasibility study ("RI/FS") for the site and to
further extend the tolling and forbearance agreement. In the event the companies
and EPA are unable to reach agreement on terms under which the companies would
perform the RI/FS, EPA has stated it may conduct an RI/FS and seek to recover
the costs incurred from the companies.
On July 11, 1997, the Wisconsin Department of Natural Resources, the United
States Department of the Interior, the Menominee Indian Tribe of Wisconsin, the
Oneida Tribe of Indians of Wisconsin, the National Oceanic and Atmospheric
Administration and EPA entered into a Memorandum of Agreement (the "MOA") which
provides for coordination and cooperation among those parties in addressing the
release or threat of release of hazardous substances into the lower Fox River,
Green Bay and Lake Michigan environment. The MOA sets forth a mutual goal of
remediating and/or responding to hazardous substance releases and threats of
releases, and restoring injured and potentially injured natural resources. The
MOA further states that, based on current information, removal of the PCB
contaminated sediments in the lower Fox River is expected to be the principal,
but not exclusive, action undertaken to achieve restoration and rehabilitation
of injured natural resources. The MOA anticipates funding from the Company and
the six other companies, all of which are identified as potentially responsible
parties.
The Company, with advice from its environmental consultants, continues to
believe that an aggressive effort to remove PCB contaminated sediments, many of
which are buried under cleaner material or are otherwise unlikely to move, would
be environmentally detrimental and therefore inappropriate. The Company believes
it will be able to persuade the parties to the MOA or a court to that effect.
There can be no assurance, however, that the Company will be successful in
arguing that removal of PCB contaminated sediments is inappropriate, or that the
Company's share of the cost of any such removal would not have a material
adverse effect on the Company's financial condition, liquidity and results of
operation.
The Company's current assessment, after consultation with legal counsel, is
that future expenditures for environmental matters are not likely to have a
material adverse effect on the Company's financial condition or liquidity, but
could have a material adverse effect on the Company's results of operations in a
given year; however, there can be no assurance that the Company's reserves will
be adequate or that a material adverse effect on the Company's financial
condition or liquidity will not occur at some future time.
For further information with respect to environmental matters affecting the
Company, see the Company's reports incorporated by reference herein. See
"Incorporation of Certain Documents by Reference."
DESCRIPTION OF NOTES
Set forth below is a summary of certain provisions of the Notes. The
Exchange Notes, like the Old Notes, will be issued pursuant to the indenture
(the "Indenture") dated as of July 22, 1997 (the "Issue Date") between the
Company and The Bank of New York, as Trustee (the "Trustee"). The terms of the
Indenture are also governed by certain provisions contained in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The following
summary of certain provisions of the Indenture does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the Trust
Indenture Act and to all of the provisions of the Indenture, including the
definitions of certain terms therein and those terms made a part of the
Indenture by reference to the Trust Indenture Act as in effect on the date of
the Indenture. A copy of the Indenture may be obtained from the Company. The
form and terms of the Exchange Notes are identical in all material respects to
the form and terms of the Old Notes (which they replace) except that (i) the
Exchange Notes will bear a Series B designation and will have been registered
under the Securities Act and, therefore, will not bear legends restricting the
transfer thereof, (ii) the holders of Exchange Notes will not be entitled to
certain rights under the Registration Rights Agreement, including the provisions
providing for an increase in the interest rate on the Old Notes in certain
circumstances relating to the timing of the Exchange Offer, which rights will
terminate when the Exchange Offer is consummated and (iv) the Exchange Notes
14
<PAGE> 16
will be issued in minimum denominations of $1,000 compared to minimum
denominations of $100,000 for the Old Notes. No service charge will be made for
any registration of transfer, exchange or redemption of Exchange Notes, except
in certain circumstances for any tax or other governmental charge that may be
imposed in connection therewith. The Old Notes and the Exchange Notes shall be
treated as one class for all purposes under the Indenture, including amendments,
waivers and redemptions.
PRINCIPAL, MATURITY AND INTEREST
The Notes will mature on July 15, 2007, will be limited to $150,000,000
aggregate principal amount at any one time outstanding (including any Exchange
Notes that may be issued from time to time in exchange for the Old Notes) and
will be unsecured unsubordinated obligations of the Company. Each Exchange Note
will bear interest at the rate set forth on the cover page hereof from the later
of July 22, 1997 and the most recent Interest Payment Date to which interest has
been paid on the Exchange Notes or on the Old Notes exchanged for the Exchange
Notes, as the case may be, payable semiannually on January 15 and July 15 in
each year, commencing January 15, 1998, to the person in whose name the Exchange
Note (or any predecessor Note) is registered at the close of business on the
January 1 or the July 1 next preceding such Interest Payment Date whether or not
such January 1 or July 1 is a Business Day. Interest will be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Holders of Old Notes whose Old Notes are accepted for exchange will not
receive accrued interest on such Old Notes for any period from and after the
last Interest Payment Date to which interest has been paid or duly provided for
on such Old Notes prior to the original issue date of the Exchange Notes or, if
no such interest has been paid or duly provided for, will not receive any
accrued interest on such Notes, and will be deemed to have waived the right to
receive any interest on such Notes accrued from and after such Interest Payment
Date or, if no such interest has been paid or duly provided for, from and after
July 22, 1997.
Principal of and interest on the Notes will be payable, and the Notes will
be transferable, at the office of the Trustee maintained at The Bank of New
York, 101 Barclay Street, Floor 21 West, New York, New York 10286, Attention:
Corporate Trust Trustee Administration. The Notes will be issued only in fully
registered form without coupons, in denominations of $1,000 and any integral
multiple of $1,000 in excess thereof. No service charge will be made for any
registration of transfer, exchange or redemption of Notes, except in certain
circumstances for any tax or other governmental charge that may be imposed in
connection therewith. The Notes and the Exchange Notes shall be one class for
all purposes under the Indenture, including amendments, waivers and redemptions.
RANKING; SUBSIDIARIES
The Notes will constitute unsecured and unsubordinated indebtedness of the
Company and will rank equally in right of payment, on a pari passu basis, with
all existing and future unsecured and unsubordinated senior indebtedness of the
Company. The Notes are obligations exclusively of the Company. Some of the
Company's consolidated assets are held by its subsidiaries. Accordingly, the
cash flow of the Company and the consequent ability to service its debt,
including the Notes, are in small part dependent upon the earnings of such
subsidiaries. The Notes will be effectively subordinated to all existing and
future indebtedness, trade payables, guarantees, lease obligations, letter of
credit obligations and other obligations of the Company's subsidiaries.
OPTIONAL REDEMPTION
The Notes will be redeemable, in whole or in part, at the option of the
Company at any time, upon not less than 30 nor more than 60 days' notice, in
principal amounts of $1,000 or integral multiples thereof, at a redemption price
equal to the greater of (i) 100% of the principal amount of the Notes, plus
accrued and unpaid interest thereon to the date of redemption, or (ii) as
determined by a Quotation Agent (as defined below), the sum of (a) the present
values of the remaining scheduled payments of principal and interest thereon
discounted to the redemption date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus (b)
accrued interest on the Notes to the date of
15
<PAGE> 17
redemption. If a redemption date does not fall on an Interest Payment Date,
then, with respect to the interest payment immediately succeeding the redemption
date, only the unaccrued portion of such interest payment as of the redemption
date shall be included in any calculation pursuant to clause (ii)(a).
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of the principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.15%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Quotation Agent as having a maturity comparable to the remaining
term of the Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of such Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (A)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (B) if the Trustee obtains three or fewer such Reference Treasury
Dealer Quotations, the average of all such Quotations.
"Quotation Agent" means one of the Reference Treasury Dealers appointed by
the Company.
"Reference Treasury Dealer" means (i) each of Bear Stearns & Co. Inc. and
BT Securities Corporation, and their respective successors; provided, however,
that if any of the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer; and (ii) any other
Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third Business Day preceding such redemption date.
If less than all of the Notes are to be redeemed, the Trustee shall select,
in such manner as it shall deem fair and appropriate, the particular Notes to be
redeemed or any portion thereof that is an integral multiple of $1,000.
SINKING FUND
There will be no sinking fund payments for the Notes.
CERTAIN COVENANTS
Limitation on Liens. The Company will not, and will not permit any
subsidiary to, directly or indirectly, create, incur, assume or suffer to exist
any mortgage, pledge, security interest or lien (a "lien") of or upon any of
their respective properties or assets, whether currently owned or hereafter
acquired. This limitation does not apply, however, to any of the following: (1)
the mortgages to be entered into by the Company and its subsidiary, The
Glatfelter Pulp Wood Company in favor of its subsidiary, GWS Valuch; (2) liens
on any property or asset securing or providing for the payment or refinancing of
the purchase price of such property or asset or the cost of improvements thereto
created or assumed contemporaneously with (or within 120 days after) the
acquisition of such properties or assets; provided that (i) the principal amount
of the indebtedness secured by such liens does not exceed 100% of the costs of
such property or asset and/or improvements and (ii) such liens shall not apply
to any property or asset of the Company or any subsidiary, other than the
acquired property or asset and any improvements with respect thereto; (3) liens
on any properties or assets existing at the time of acquisition thereof,
provided that such liens (i) shall not extend to any properties or assets of the
Company or any subsidiary other than properties or assets so acquired and (ii)
are not incurred in connection with or in contemplation of the acquisition of
the properties or assets acquired; (4) liens on any
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property or asset to secure indebtedness of a subsidiary to the Company or to
another subsidiary or of the Company to a subsidiary; (5) liens for taxes,
government assessments or government charges or levies not yet due or which are
being contested in good faith by appropriate proceedings, to the extent that a
reserve or other appropriate provision, if any, is made in accordance with
generally accepted accounting principles; (6) warehousemen's, mechanics',
carriers', materialmen's, repairmen's and other like liens incurred in the
ordinary course of business, and liens securing reimbursement obligations with
respect to trade letters of credit, banker's acceptances and sight drafts
incurred in the ordinary course of business which encumber documents and other
property relating to such letters of credit, banker's acceptances and sight
drafts; (7) liens existing on the Issue Date; (8) additional liens securing
indebtedness in an aggregate principal amount which does not in the aggregate at
the time any such lien is incurred, exceed 10% of Consolidated Net Tangible
Assets; (9) liens on any property or asset in favor of the United States or any
State thereof or the Commonwealth of Puerto Rico, or any department, agency or
instrumentality or political subdivision of the United States or any State
thereof or the Commonwealth of Puerto Rico, to secure payments, indebtedness or
other obligations pursuant to any contract or statute or to secure any
indebtedness or obligations incurred for the purpose of financing all or any
part of the cost of acquiring, constructing or improving the property or asset
subject to such liens (including liens incurred in connection with
pollution-control, industrial revenue, certain maritime financing or similar
financing); (10) liens on timberlands in connection with an arrangement under
which the Company and/or one or more of its subsidiaries are obligated to cut or
pay for timber in order to provide the lienholder with a specified amount of
money, however reasonably determined; or (11) any extension, renewal or
replacement (or successive extensions, renewals or replacements) in whole or in
part, of any lien referred to in the foregoing clauses (1) to (10) inclusive, to
the extent such lien, as so extended, renewed or replaced, is limited to all or
a part of the property or asset which secured the lien so extended, renewed or
replaced (plus improvements on such property or asset) and the principal amount
of indebtedness secured thereby shall not be in excess of the outstanding
principal amount of indebtedness so secured at the time of such extension,
renewal or replacement.
For purposes hereof, "Consolidated Net Tangible Assets" means the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) total current liabilities (excluding debt or any
guaranty thereof due within 12 months) and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth in the most recent consolidated balance sheet of
the Company and its subsidiaries and computed in accordance with generally
accepted accounting principles.
Limitation on Sale and Lease-Back Transactions. The Company will not, nor
will it permit any subsidiary to, enter into directly or indirectly any
arrangement with any person (other than the Company or any subsidiary) providing
for the sale and lease-back by the Company or a subsidiary of any property or
asset (except for temporary leases for a term, including any renewal thereof, of
not more than three years), unless either (1) the Company or such subsidiary
would be entitled under the Limitation on Liens covenant described above to
incur indebtedness secured by a lien on the property or asset to be leased equal
to or exceeding the amount of the net proceeds received by the Company or such
subsidiary with respect to such sale and lease-back or (2) within 90 days after
the effective date of any such sale and lease-back, the Company or such
subsidiary applies an amount (net of applicable taxes) equal to the greater of
(x) the net proceeds of such sale or transfer and (y) the fair value at the time
of the transaction of the property or asset so leased to the retirement (other
than any mandatory retirement) of any funded indebtedness of the Company or any
subsidiary which by its terms is senior to, or pari passu with, the Notes.
EVENTS OF DEFAULT
An Event of Default with respect to the Notes is defined under the
Indenture as being: (a) default in payment of any principal of or any premium on
the Notes, either at maturity, upon any redemption, by acceleration, declaration
or otherwise; (b) default for 30 days in payment of any interest on the Notes;
(c) default for 60 days after written notice in the observance or performance of
any other covenant or agreement in the Notes or the Indenture; (d) certain
events of bankruptcy, insolvency or reorganization of the Company; (e) certain
events of default with respect to indebtedness or guaranties of the Company or
its
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subsidiaries exceeding $10 million in aggregate principal amount; or (f) any
failure by the Company to pay any final, non-appealable judgement or order for
the payment of money in excess of $10 million and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgement or
order or (ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgement or order, by reason of a pending appeal or
otherwise, shall not be in effect. If an Event of Default occurs, the Trustee
may pursue all legal remedies available to it, including commencing a judicial
proceeding for the collection of sums so due and unpaid.
If an Event of Default (other than an Event of Default specified in clause
(d)) occurs and is continuing, then either the Trustee or the holders of at
least 25% in aggregate principal amount of the Notes by notice as provided in
the Indenture may declare the principal amount of all of the Notes to be due and
payable immediately and upon any such declaration such principal amount (or
specified portion thereof) plus accrued and unpaid interest (and premium, if
any) shall become immediately due and payable. If an Event of Default specified
in clause (d) occurs, the principal of (and premium if any) and any accrued and
unpaid interest on the Notes shall become immediately due and payable without
any declaration or other act on the part of the Trustee or any holder. At any
time after a declaration of acceleration with respect to Notes has been made,
but before a judgment or decree for payment of money has been obtained by the
Trustee, the holders of a majority in aggregate principal amount of the Notes
may, under certain circumstances, rescind and annul such acceleration.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the holders, unless such holders shall have
offered to the Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee, the holders of a majority in aggregate principal
amount of the Notes will have the right to 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 the Trustee, with respect to the Notes.
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance.
MODIFICATION
The Indenture provides that the Company and the Trustee may enter into
supplemental indentures without the consent of the holders of Notes generally
to: (a) secure the Notes; (b) evidence the assumption by a successor corporation
of the obligations of the Company; (c) add covenants for the benefit of the
holders of the Notes, or surrender any right or power conferred upon the Company
in the Indenture; (d) add any additional Events of Default; (e) cure any
ambiguity, correct or supplement any provision of the Indenture which may be
inconsistent with any other provision of the Indenture, or make any other
provisions with respect to matters or questions arising under the Indenture,
provided such action will not adversely affect the interests of the holders of
the Notes in any material respect; (f) evidence and provide for the acceptance
of appointment by a successor trustee; (g) permit or facilitate the defeasance
and discharge of the Notes, provided that such action does not adversely effect
the interests of the holders of the Notes; and (h) comply with the requirements
of the Commission in order to effect or maintain the qualifications of the
Indenture under the Trust Indenture Act.
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the holders of not less than a majority in
aggregate principal amount of the Notes; provided, however, that no such
modification or amendment may, without the consent of the holder of each Note
affected thereby, change the stated maturity of the principal of, or any
installment of principal of or interest on, any Note, reduce the principal
amount of, or premium or interest on, any Note, change the place of payment
where or coin or currency in which the principal of, or any premium or interest
on any Note is payable, impair the right to institute suit for the enforcement
of any payment on or with respect to any Note, reduce the percentage in
principal amount of outstanding Notes, the consent of the holders of which is
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required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults or modifications to any of the above provisions.
The holders of not less than a majority in aggregate principal amount of
the Notes may, on behalf of the holders of all Notes, waive compliance by the
Company with certain restrictive provisions of the Indenture. The holders of not
less than a majority in aggregate principal amount of the Notes may, on behalf
of the holders of all Notes, waive any past default under the Indenture, except
a default (1) in the payment of principal of, or any premium or interest on, any
Note, or (2) in respect of a covenant or provision of the Indenture which cannot
be modified or amended without the consent of the holder of each Note.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company will not, in a single transaction or a series of related
transactions, consolidate with or merge into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person and the Company may not permit any person to consolidate with or merge
into the Company or convey, transfer or lease all or substantially all of its
properties and assets to the Company, unless (i) the person formed by such
consolidation or into which the Company is merged or the person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety is a corporation, partnership or trust, is
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and expressly assumes, by a
supplemental indenture, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Notes and the performance or observance
of every covenant of the Indenture on the part of the Company to be performed or
observed; (ii) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and (iii) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with the provisions of the
Indenture and that all conditions precedent therein provided for relating to
such transaction have been complied with.
UNCLAIMED MONIES
The Indenture provides that any principal or interest remaining unclaimed
for two years, subject to certain conditions, after the date upon which such
principal or interest shall have become due and payable may be repaid to the
Company unless otherwise required by applicable escheat or abandoned or
unclaimed property laws, and the holder of any Notes shall be entitled
thereafter to look only to the Company (subject to applicable escheat or
abandoned or unclaimed property laws) and only as a general creditor thereof for
any payment which such holder may be entitled to collect.
DEFEASANCE PROVISIONS
Defeasance and Discharge. The Indenture provides that the Company will be
discharged from any and all obligations in respect of the Notes (except for
certain obligations to register the transfer or exchange of Notes, to replace
stolen, lost or mutilated Notes, to maintain paying agencies and to hold moneys
for payment in trust) upon the deposit with the Trustee, in trust, of money,
U.S. Government Obligations or a combination thereof, which through the payment
of interest and principal thereof in accordance with their terms will provide
money in an amount sufficient to pay any installment of principal of (and
premium, if any) and interest on the Stated Maturity (as defined in the
Indenture) of such payments in accordance with the terms of the Indenture and
the Notes. Such discharge may only occur if there has been a change in
applicable Federal law or the Company has received from, or there has been
published by, the United States Internal Revenue Service a ruling to the effect
that such a discharge will not be deemed, or result in, a taxable event with
respect to holders of the Notes. The term "U.S. Government Obligations" is
defined to mean direct obligations of the United States of America, backed by
its full faith and credit.
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Defeasance of Certain Covenants and Events of Default. The Company may
omit to comply with the restrictive covenants described in "-- Certain
Covenants -- Limitation on Liens" and "-- Certain Covenants -- Limitation on
Sale and Lease-Back Transactions" and the omission with respect thereof shall
not be an Event of Default. To exercise such option, the Company must deposit
with the Trustee money, U.S. Government Obligations or a combination thereof,
which through the payment of interest and principal thereof in accordance with
their terms will provide money in an amount sufficient to pay any installment of
principal of (and premium, if any) and interest on the Stated Maturity of such
payments in accordance with the terms of the Indenture and the Notes. The
Company will also be required to deliver to the Trustee an opinion of counsel to
the effect that the deposit and related covenant defeasance will not cause the
holders of the Notes to recognize income, gain or loss for Federal income tax
purposes.
Defeasance and Events of Default. In the event the Company exercises its
option to omit compliance with certain covenants of the Indenture and the Notes
are declared due and payable because of the occurrence of an Event of Default,
the amount of money and U.S. Government Obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Notes at the time of their Stated
Maturity, but may not be sufficient to pay amounts due on the Notes at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
GOVERNING LAW
The Indenture and the Notes will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of law principles thereof.
BOOK-ENTRY; DELIVERY AND FORM
The certificates representing the Exchange Notes will be issued in fully
registered form, without coupons. Except as described below, the Exchange Notes
will be deposited with, or on behalf of, The Depository Trust Company ("DTC"),
New York, New York, as depository (the "Depository"), and registered in the name
of Cede & Co., as DTC's nominee, in the form of one or more global Exchange Note
certificates (the "Global Certificate").
Global Certificates. Ownership of beneficial interests in a Global
Certificate will be limited to persons who have accounts with DTC
("participants") or persons who hold interests through participants. Ownership
of beneficial interests in the Global Certificates will be shown on, and the
transfer of these ownership interests will be effected only through, records
maintained by DTC or its nominee (with respect to interests of participants) and
the records of participants (with respect to interests of persons other than
participants).
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Exchange Notes represented by such Global
Certificate for all purposes under the Indenture and the Notes. In addition, no
beneficial owner of an interest in a Global Certificate will be able to transfer
that interest except in accordance with DTC's applicable procedures (in addition
to those under the Indenture referred to herein).
Payments on Global Certificates will be made to DTC, or its nominee, as the
registered owner thereof. Neither the Company, the Trustee nor any paying agent
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in the Global
Certificates or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Company expects that DTC, or its nominee, upon receipt of any payment
in respect of a Global Certificate representing any Exchange Notes held by it or
its nominee, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Certificate for such Exchange Notes as shown on the
records of DTC or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Certificate held
through such participants will be governed by standing instructions and
customary practices,
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as is now the case with securities held for the accounts of customers registered
in the names of nominees for such customers. Such payments will be the
responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way
in accordance with DTC rules. The laws of some states require that certain
persons take physical delivery of securities in definitive form. Consequently,
the ability to transfer beneficial interests in a Global Certificate to such
persons may be limited. Because DTC can only act on behalf of participants, who
in turn act on behalf of indirect participants (as defined below) and certain
banks, the ability of a person having a beneficial interest in a Global
Certificate to pledge such interest to persons or entities that do not
participate in the DTC system or otherwise take actions in respect of such
interest, may be affected by the lack of a physical certificate of such
interest.
The Company believes that it is the policy of DTC that it will take any
action permitted to be taken by a holder of Exchange Notes (including the
presentation of Notes for exchange as described below under "Exchange Offer")
only at the direction of one or more participants to whose account interests in
the Global Certificates are credited and only in respect of such portion of the
aggregate principal amount of the Exchange Notes as to which such participant or
participants has or have given such direction.
The Indenture provides that if (i) the Depository notifies the Company that
it is unwilling or unable to continue as Depository, or if the Depository ceases
to be eligible under the Indenture and a successor depository is not appointed
by the Company within 90 days, (ii) the Company determines that the Exchange
Notes shall no longer be represented by Global Certificates and executes and
delivers to the Trustee a Company Order to such effect or (iii) an Event of
Default or event which, with notice or lapse of time or both, would constitute
an Event of Default with respect to the Exchange Notes shall have occurred and
be continuing, the Global Certificates will be exchanged for Exchange Notes in
definitive form of like tenor and of an equal aggregate principal amount, in
authorized denominations. Such definitive Exchange Notes shall be registered in
such name or names as the Depository shall instruct the Trustee. It is expected
that such instructions may be based upon directions received by the Depository
from participants with respect to ownership of beneficial interests in Global
Certificates.
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC holds securities that its participants
deposit with DTC and facilitates the settlement among participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC is owned by a number
of its direct participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain a custodial relationship with a direct participant, either directly or
indirectly ("indirect participants"). The rules applicable to DTC and its
participants are on file with the Commission.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interests in the Global Certificates among participants of DTC, it
is under no obligation to perform or continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Company nor the
Trustee will have any responsibility for the performance by DTC or its
participants or indirect participants of their respective obligations under the
rules and procedures governing their operations.
In case any Exchange Note shall become mutilated, defaced, destroyed, lost
or stolen, the Company will execute and, upon the Company's request, the Trustee
will authenticate and deliver a new Exchange Note, of like tenor and equal
principal amount in exchange and substitution for such Exchange Note (upon
surrender and cancellation thereof) or in lieu of and substitution for such
Exchange Note. In case such Exchange Note is destroyed, lost or stolen, the
applicant for a substituted Exchange Note shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to hold each of
them harmless, and, in
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every case of destruction, loss or theft of such Exchange Note, the applicant
shall also furnish to the Company or the Trustee satisfactory evidence of the
destruction, loss or theft of such Exchange Note and of the ownership thereof.
Upon the issuance of any substituted Exchange Note, the Company may require the
payment by the registered holder thereof of a sum sufficient to cover fees and
expenses connected therewith.
REGARDING THE TRUSTEE
The Trust Indenture Act contains limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases or to realize on certain property received by it in respect of any
such claims, as security or otherwise. The Trustee is permitted to engage in
other transactions with the Company and its subsidiaries from time to time,
provided that if the Trustee acquires any conflicting interest it must eliminate
such conflict upon the occurrence of an Event of Default, or else resign. The
Bank of New York is the trustee under the indenture for the 5 7/8% Notes,
rendered services to GWS Valuch as redemption and paying agent for the Step-Down
Preferred Stock and acts as service agent for payments under, and certain other
matters related to, the Company's loan from GWS Valuch.
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Old Notes were originally sold by the Company on July 22, 1997 to the
Initial Purchasers pursuant to the Purchase Agreement. The Initial Purchasers
subsequently resold the Old Notes to QIB's in reliance on Rule 144A under the
Securities Act. As a condition to the Purchase Agreement, the Company entered
into the Registration Rights Agreement with the Initial Purchasers (the
"Registration Rights Agreement"). Pursuant to the Registration Rights Agreement,
the Company agreed, for the benefit of the holders of the Notes, to (i) use its
best efforts to file with the Commission the Exchange Offer Registration
Statement relating to the Exchange Offer for the Exchange Notes, which will have
terms identical in all material respects to the Old Notes (except that the
Exchange Notes will not contain terms with respect to transfer restrictions,
will have different minimum denominations and will not provide for any increase
in the interest rate thereon under the circumstances described below) and (ii)
use its best efforts to cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act within 120 calendar days after the
Issue Date. Promptly after the Exchange Offer Registration Statement has been
declared effective, the Company will offer the Exchange Notes in exchange for
surrender of the Old Notes. The Company will keep the Exchange Offer open for
not less than 30 calendar days (or longer if required by applicable law) after
the date notice of the Exchange Offer is mailed to the holders of the Old Notes.
For each Old Note validly tendered to the Company pursuant to the Exchange
Offer, the holder of such Old Note will receive an Exchange Note having a
principal amount equal to that of the tendered Old Note. Interest on each
Exchange Note will accrue from the last Interest Payment Date on which interest
was paid on the Old Note tendered in exchange therefor or, if no interest has
been paid on such Note, from the Issue Date.
Based on existing interpretations of the Securities Act by the Staff set
forth in several no-action letters to third parties, and subject to the
immediately following sentence, the Company believes that the Exchange Notes
issued pursuant to the Exchange Offer may be offered for resale, resold and
otherwise transferred by the holders thereof (other than holders who are
broker-dealers) without further compliance with the registration and prospectus
delivery provisions of the Securities Act. However, any purchaser of Old Notes
who is an affiliate of the Company or who intends to participate in the Exchange
Offer for the purpose of distributing the Exchange Notes, or any broker-dealer
who purchased the Old Notes from the Company to resell pursuant to Rule 144A or
any other available exemption under the Securities Act, (i) will not be able to
rely on the interpretation of the Staff set forth in the above-mentioned
no-action letters, (ii) will not be entitled to tender its Old Notes in the
Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the Old Notes unless such sale or transfer is made pursuant to an
exemption from such requirements. The Company does not intend to seek its own
no-action letter and there can be no assurance that the Staff would make a
similar determination with respect to the Exchange Notes as it has in such
no-action letters to third parties.
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Each holder of the Old Notes (other than certain specified holders) who
wishes to exchange the Old Notes for Exchange Notes in the Exchange Offer will
be required to represent that (i) it is not an affiliate of the Company, (ii)
the Exchange Notes to be received by it are being acquired in the ordinary
course of its business and (iii) at the time of the Exchange Offer, it has no
arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes. In addition, in connection
with any resales of Exchange Notes, any broker-dealer (a "Participating
Broker-Dealer") who acquired the Old Notes for its own account as a result of
market-making or other trading activities must deliver a prospectus meeting the
requirements of the Securities Act. The Staff has taken the position in the
above-mentioned no-action letters that Participating Broker-Dealers may fulfill
their prospectus delivery requirements with respect to the Exchange Notes (other
than a resale of an unsold allotment from the original sale of the Old Notes)
with the prospectus contained in the Exchange Offer Registration Statement.
Under the Registration Rights Agreement, the Company is required to allow
Participating Broker-Dealers and other persons, if any, subject to similar
prospectus delivery requirements to use the prospectus contained in the Exchange
Offer Registration Statement in connection with the resale of such Exchange
Notes.
If, (i) because of any change in law or in currently prevailing
interpretations of the Staff, the Company is not permitted to effect the
Exchange Offer, (ii) the Company has not exchanged Exchange Notes for all Old
Notes validly tendered in accordance with the terms of the Exchange Offer on or
prior to the 150th calendar day after the Issue Date, (iii) in certain
circumstances, certain holders of unregistered Exchange Notes so request, or
(iv) in the case of any holder that participates in the Exchange Offer, such
holder does not receive Exchange Notes on the date of the exchange that may be
sold without restriction under state and federal securities laws (other than due
solely to the status of such holder as an affiliate of the Company within the
meaning of the Securities Act or to the holder having an arrangement with any
person to participate in a distribution (within the meaning of the Securities
Act)), then in each case, the Company will (x) promptly deliver to the holders
and the Trustee written notice thereof and (y) at its sole expense, (a) as
promptly as practicable, file a shelf registration covering resales of the Notes
(the "Shelf Registration Statement"), (b) use its best efforts to cause the
Shelf Registration Statement to be declared effective under Securities Act and
(c) use its best efforts to keep effective the Shelf Registration Statement
until the earlier of two years after its effective date or such time as all of
the applicable Notes have been sold thereunder. The Company will, in the event
that a Shelf Registration Statement is filed, provide to each holder copies of
the prospectus that is a part of the Shelf Registration Statement, notify each
such holder when the Shelf Registration Statement for the Notes has become
effective and take certain other actions as are required to permit unrestricted
resales of the Notes. A holder that sells Notes pursuant to the Shelf
Registration Statement will be required to be named as a selling security holder
in the related prospectus and to deliver a prospectus to purchasers, will be
subject to certain of the civil liability provisions under the Securities Act in
connection with such sales and will be bound by the provisions of the
Registration Rights Agreement that are applicable to such a holder (including
certain indemnification rights and obligations).
Each Old Note contains a legend to the effect that the holder of such Old
Note by its acceptance thereof, will be deemed to have agreed to be bound by the
provisions of the Registration Rights Agreement. In that regard, each holder
will be deemed to have agreed that, upon its receipt of notice from the Company
of the occurrence of any event which makes any statement in the prospectus which
is part of the Shelf Registration Statement (or, in the case of Participating
Broker-Dealers, the prospectus which is a part of the Exchange Offer
Registration Statement) untrue in any material respect or which requires the
making of any changes in such prospectus in order to make the statements therein
not misleading or of certain other events specified in the Registration Rights
Agreement, such holder (or Participating Broker-Dealer, as the case may be) will
suspend the sale of Notes pursuant to such prospectus until the Company has
amended or supplemented such prospectus to correct such misstatement or omission
and has furnished copies of the amended or supplemented prospectus to such
holder (or Participating Broker-Dealer, as the case may be) or the Company has
given notice that the sale of the Old Notes may be resumed, as the case may be.
If the Company shall give such notice to suspend the sale of the Notes, it shall
extend the relevant period referred to above during which it is required to keep
effective the Shelf Registration Statement (or the period during which
Participating Broker-Dealers are entitled to use the prospectus included in the
Exchange Offer Registration Statement in connection with the resale of Exchange
Notes, as the case may be) by the number of days during the period
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from and including the date of the giving of such notice to and including the
date when holders shall have received copies of the supplemented or amended
prospectus necessary to permit resales of the Notes or to and including the date
on which the Company has given notice that the sale of Notes, may be resumed, as
the case may be.
If the Company fails to comply with the above provisions or if the Exchange
Offer Registration Statement or the Shelf Registration Statement fails to become
effective, then, as liquidated damages, additional interest (the "Additional
Interest") shall become payable in respect of the Old Notes as follows:
(i) if (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is declared effective by the Commission on or
prior to the 120th calendar day after the Issue Date or (B) notwithstanding
that the Company has exchanged or will exchange Exchange Notes for all Old
Notes validly tendered in accordance with the terms of the Exchange Offer,
the Company is required to file a Shelf Registration Statement and such
Shelf Registration Statement is not declared effective by the Commission on
or prior to the 120th calendar day after the date such filing obligation
arises, then, for the first 90 days commencing on the 121st calendar day
after (x) the Issue Date, in the case of (A) above, or (y) the date such
filing obligations arises, in the case of (B) above, then Additional
Interest shall accrue on the principal amount of the Old Notes over and
above the stated interest at a rate of 0.25% per annum, such Additional
Interest rate increasing by an additional 0.25% per annum at the beginning
of each subsequent 90-day period; or
(ii) if (A) the Company has not exchanged Exchange Notes for all Old
Notes validly tendered in accordance with the terms of the Exchange Offer
on or prior to the 150th calendar day after the Issue Date or (B) if
applicable, the Shelf Registration Statement has been declared effective
and such Shelf Registration Statement ceases to be effective at any time
prior to the second anniversary of its effective date (other than after
such time as all Notes have been disposed of thereunder), then Additional
Interest shall accrue on the principal amount of the Old Notes over and
above the stated interest at a rate of 0.25% per annum for the first 90
days commencing on (x) the 151st calendar day after such Issue 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 such Additional Interest rate
increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period;
provided, however, that the Additional Interest rate on the Old Notes may not
exceed in the aggregate 1.0% per annum; provided further, however, that (1) upon
the effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above) or (2) upon the
exchange of Exchange Notes for all Old Notes validly tendered (in the case of
clause (ii)(A) above) or upon the effectiveness of the Shelf Registration
Statement which had ceased to remain effective (in the case of clause (ii)(B)
above) Additional Interest on the Old Notes as a result of such clause (or the
relevant subclause thereof, as the case may be), shall cease to accrue.
Any amounts of Additional Interest due pursuant to clause (i) or (ii) above
will be payable in cash on January 15 and July 15 of each year to the holders of
record on the preceding January 1 or July 1, respectively. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest rate by the principal amount of the Old Notes multiplied 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.
The summary herein of certain provisions of the Registration Rights
Agreement does not purport to be complete and is subject to, and is qualified in
its entirety by, all the provisions of the Registration Rights Agreement, a copy
of which is filed as an exhibit to the Exchange Offer Registration Statement of
which this Prospectus is a part. In addition, the information set forth above
concerning certain interpretations of and positions taken by the Commission is
not intended to constitute legal advice, and perspective investors should
consult their own legal advisors with respect to such matters.
Following the consummation of the Exchange Offer, holders of the Old Notes
who were eligible to participate in the Exchange Offer but who did not tender
their Old Notes will not have any further registration
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<PAGE> 26
rights and such Old Notes will continue to be subject to certain restrictions on
transfer. Accordingly, the liquidity of the market for such Old Notes could be
adversely affected.
TERMS OF THE EXCHANGE OFFER
Upon the terms and subject to the conditions set forth in this Prospectus
and in the Letter of Transmittal, the Company will accept any and all Old Notes
validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on
the Expiration Date. The Company will issue $1,000 principal amount of Exchange
Notes in exchange for each $1,000 principal amount of outstanding Old Notes
accepted in the Exchange Offer. Holders may tender some or all of their Old
Notes pursuant to the Exchange Offer. However, Old Notes may be tendered only in
integral multiples of $1,000.
The form and terms of the Exchange Notes are the same as the form and terms
of the Old Notes except that (i) the Exchange Notes bear a Series B and the
Exchange Notes will have been registered under the Securities Act and hence will
not bear legends restricting the transfer thereof, (ii) the holders of the
Exchange Notes will not be entitled to certain rights under the Registration
Rights Agreement, including the provisions providing for Additional Interest
(other than with respect to periods prior to the issuance of such Exchange
Notes), all of which rights will terminate when the Exchange Offer is
consummated and (iii) the Exchange Notes will be issued in minimum denominations
of $1,000 compared to minimum denominations of $100,000 for the Notes. The
Exchange Notes will evidence the same debt as the Old Notes and will be entitled
to the benefits of the Indenture.
As of the date of this Prospectus, $150,000,000 aggregate principal amount
of Old Notes were outstanding. The Company has fixed the close of business on
, 1997 as the record date for the Exchange Offer for purposes of
determining the persons to whom this Prospectus and the Letter of Transmittal
will be mailed initially.
Holders of Notes do not have any appraisal or dissenters' rights under the
Business Corporation Law of Pennsylvania or the Indenture in connection with the
Exchange Offer. The Company intends to conduct the Exchange Offer in accordance
with the applicable requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
The Company shall be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for the tendering holders
for the purpose of receiving the Exchange Notes from the Company.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, the certificates for any such unaccepted Old Notes will be returned,
without expense, to the tendering holder thereof as promptly as practicable
after the Expiration Date.
Holders who tender Old Notes in the Exchange Offer will not be required to
pay brokerage commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of Old Notes
pursuant to the Exchange Offer. The Company will pay all charges and expenses,
other than transfer taxes in certain circumstances, in connection with the
Exchange Offer. See "-- Fees and Expenses."
NEITHER THE BOARD OF DIRECTORS OF THE COMPANY NOR THE COMPANY MAKES ANY
RECOMMENDATION TO HOLDERS OF OLD NOTES AS TO WHETHER TO TENDER OR REFRAIN FROM
TENDERING ALL OR ANY PORTION OF THEIR OLD NOTES PURSUANT TO THE EXCHANGE OFFER.
IN ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS
OF OLD NOTES MUST MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE
EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF NOTES TO TENDER AFTER READING
THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL AND CONSULTING WITH THEIR
ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
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EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
, 1997, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended. Notwithstanding the
foregoing, the Company will not extend the Expiration Date beyond ,
1997.
The Company may extend the Exchange Offer at any time and from time to time
by giving oral or written notice to the Exchange Agent or by press release and
mailing to the registered holders an announcement thereof, each on or before the
Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Old Notes, to extend the Exchange Offer or to terminate the
Exchange Offer if any of the conditions set forth below under "-- Conditions"
shall not have been satisfied, by giving oral or written notice of such delay,
extension or termination to the Exchange Agent or (ii) to amend the terms of the
Exchange Offer in any manner. Any such delay in acceptance, extension,
termination or amendment will be followed as promptly as practicable by oral or
written notice thereof to the registered holders.
PROCEDURES FOR TENDERING
Only a registered holder of Old Notes may tender such Old Notes in the
Exchange Offer. To tender in the Exchange Offer, a holder must complete, sign
and date the Letter of Transmittal, or a facsimile thereof, have the signatures
thereon guaranteed if required by the Letter of Transmittal, and mail or
otherwise deliver such Letter of Transmittal or such facsimile, together with
the Old Notes and any other required documents, to the "Exchange Agent" prior to
5:00 p.m., New York City time, on the Expiration Date. To be tendered
effectively, the Old Notes, Letter of Transmittal and other required documents
(or an Agent's Message in lieu thereof) must be completed and received by the
Exchange Agent at the address set forth below under "Exchange Agent" prior to
5:00 p.m., New York City time, on the Expiration Date. Delivery of the Old Notes
may be made by book-entry transfer in accordance with the procedures described
below. Confirmation of such book-entry transfer must be received by the Exchange
Agent prior to the Expiration Date.
By executing the Letter of Transmittal, each holder will make to the
Company the representations set forth above in the third paragraph under the
heading "-- Purpose and Effect of the Exchange Offer."
The tender by a holder and the acceptance thereof by the Company will
constitute agreement between such holder and the Company in accordance with the
terms and subject to the conditions set forth herein and in the Letter of
Transmittal.
THE METHOD OF DELIVERY OF OLD NOTES AND THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE ELECTION AND SOLE RISK
OF THE HOLDER. AS AN ALTERNATIVE TO DELIVERY BY MAIL, HOLDERS MAY WISH TO
CONSIDER OVERNIGHT OR HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ASSURE DELIVERY TO THE EXCHANGE AGENT BEFORE THE EXPIRATION
DATE. NO LETTER OF TRANSMITTAL OR NOTES SHOULD BE SENT TO THE COMPANY. HOLDERS
MAY REQUEST THEIR RESPECTIVE BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES
OR NOMINEES TO EFFECT THE ABOVE TRANSACTIONS FOR SUCH HOLDERS.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender should contact the registered holder promptly and instruct such
registered holder to tender on such beneficial owner's behalf. See the
instructions included with the Letter of Transmittal.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed by an Eligible Institution (as defined below)
unless the Old Notes tendered pursuant thereto are tendered (i) by a registered
holder who has not completed the box entitled "Special Issuance Instructions" or
"Special Delivery Instructions" on the Letter of Transmittal or (ii) for the
account of an Eligible Institution. In the
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<PAGE> 28
event that signatures on a Letter of Transmittal or a notice of withdrawal, as
the case may be, are required to be guaranteed, such guarantee must be by an
Eligible Institution. As used in this Prospectus, Eligible Institution has the
meaning set forth for such term in the Letter of Transmittal.
If the Letter of Transmittal is signed by a person other than the
registered holder of any Old Notes listed therein, such Old Notes must be
endorsed or accompanied by a properly completed bond power, signed by such
registered holder as such registered holder's name appears on such Old Notes
with the signature thereon guaranteed by an Eligible Institution.
If the Letter of Transmittal or any Old Notes or bond powers are signed by
trustees, executors administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and evidence satisfactory to the
Company of their authority to so act must be submitted with the Letter of
Transmittal.
The Exchange Agent will establish an account at the book-entry transfer
facility, The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer promptly after the date of this Prospectus, and
any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into the Exchange
Agent's account with respect to the Old Notes in accordance with the Book-Entry
Transfer Facility's procedures for such transfer. The Letter of Transmittal with
any required signature guarantees and any other required documents (or an
Agent's Message in lieu thereof), must be received by the Exchange Agent at its
address set forth below on or prior to the Expiration Date, or, if the
guaranteed delivery procedures described below are complied with, within the
time period provided under such procedures. Delivery of documents to the
Book-Entry Transfer Facility does not constitute delivery to the Exchange Agent.
The Exchange Agent and DTC have confirmed that the Exchange Offer is
eligible for the DTC Automated Tender Offer Program ("ATOP"). Accordingly, DTC
participants may electronically transmit their acceptance of the Exchange Offer
by causing DTC to transfer Old Notes in accordance with DTC's ATOP procedures
for transfer. DTC will then send an Agent's Message to the Exchange Agent. DTC
participants may also withdraw tendered Old Notes electronically by causing DTC
to transfer Old Notes back to the participant's account through DTC's ATOP
procedures for transfer. DTC will then send an Agent's Message of such
withdrawal to the Exchange Agent.
The term "Agent's Message" means a message transmitted by DTC, received by
the Exchange Agent and forming part of the confirmation of a book-entry
transfer, which states that DTC has received an express acknowledgment from the
participant in DTC tendering Old Notes which are the subject of such book-entry
confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that the Company may enforce such
agreement against such participant. In the case of an Agent's Message relating
to guaranteed delivery, the term means a message transmitted by DTC and received
by the Exchange Agent, which states that DTC has received an express
acknowledgment from the participant in DTC tendering Old Notes that such
participant has received and agrees to be bound by the Notice of Guaranteed
Delivery. In the case of an Agent's Message relating to withdrawal of tenders,
the term means a message transmitted by DTC and received by the Exchange Agent,
which states that DTC has received an express acknowledgement from the
participant in DTC which tendered the Old Notes that such participant has
withdrawn its tender and specifying the name and account number to which the Old
Notes have been credited.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance of tendered Old Notes and withdrawal of tendered Old Notes
will be determined by the Company in its sole discretion, which determination
will be final and binding. The Company reserves the absolute right to reject any
and all Old Notes not properly tendered or any Old Notes the Company's
acceptance of which would, in the opinion of counsel for the Company, be
unlawful. The Company also reserves the right in its sole discretion to waive
any defects, irregularities or conditions of tender as to particular Old Notes.
The Company's interpretation of the terms and conditions of the Exchange Offer
(including the instructions in the Letter of Transmittal) will be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with tenders of Old
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<PAGE> 29
Notes must be cured within such time as the Company shall determine. Although
the Company intends to notify holders of defects or irregularities with respect
to tenders of Old Notes, neither the Company, the Exchange Agent nor any other
person shall incur any liability for failure to give such notification. Tenders
of Old Notes will not be deemed to have been made until such defects or
irregularities have been cured or waived. Any Old Notes received by the Exchange
Agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by the Exchange
Agent to the tendering holders, unless otherwise provided in the Letter of
Transmittal, as soon as practicable following the Expiration Date.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available, (ii) for whom time will not permit delivery of their Old
Notes, the Letter of Transmittal or any other required documents, or an Agent's
message in lieu thereof, to the Exchange Agent prior to the Expiration Date or
(iii) who cannot complete the procedures for book-entry transfer, prior to the
Expiration Date, may effect a tender if:
(a) the tender is made through an Eligible Institution;
(b) prior to the Expiration Date, the Exchange Agent receives from
such Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by facsimile transmission, mail or hand delivery)
setting forth the name and address of the holder, the certificate number(s)
of such Old Notes and the principal amount of Old Notes tendered, or an
Agent's message in lieu thereof, stating that the tender is being made
thereby and guaranteeing that, within five New York Stock Exchange trading
days after the Expiration Date, the Letter of Transmittal (or facsimile
thereof) together with the certificate(s) representing the Old Notes (or a
confirmation of book-entry transfer of such Old Notes into the Exchange
Agent's account at the Book-Entry Transfer Facility), and any other
documents required by the Letter of Transmittal, or an Agent's message in
lieu thereof, will be deposited by the Eligible Institution with the
Exchange Agent; and
(c) such properly completed and executed Letter of Transmittal (or
facsimile thereof), as well as the certificate(s) representing all tendered
Old Notes in proper form for transfer (or a confirmation of book-entry
transfer of such Old Notes into the Exchange Agent's account at the
Book-Entry Transfer Facility), and all other documents required by the
Letter of Transmittal, or an Agent's message in lieu thereof, are received
by the Exchange Agent upon five New York Stock Exchange trading days after
the Expiration Date.
Upon request to the Exchange Agent, a Notice of Guaranteed Delivery will be
sent to holders who wish to tender their Old Notes according to the guaranteed
delivery procedures set forth above.
WITHDRAWAL OF TENDERS
Except as otherwise provided herein, tenders of Old Notes may be withdrawn
at any time prior to 5:00 p.m., New York City time, on the Expiration Date.
To withdraw a tender of Old Notes in the Exchange Offer, a letter or
facsimile transmission notice of withdrawal, or an Agent's Message in lieu
thereof, must be received by the Exchange Agent at its address set forth herein
prior to 5:00 p.m., New York City time, on the Expiration Date. Any such notice
of withdrawal must (i) specify the name of the person having deposited the Old
Notes to be withdrawn (the "Depositor"), (ii) identify the Old Notes to be
withdrawn (including the certificate number(s) and principal amount of such Old
Notes, or, in the case of Old Notes transferred by book-entry transfer, the name
and number of the account at the Book-Entry Transfer Facility to be credited),
(iii) be signed by the holder in the same manner as the original signature on
the Letter of Transmittal by which such Old Notes were tendered (including any
required signature guarantees) or be accompanied by documents of transfer
sufficient to have the Trustee with respect to the Old Notes register the
transfer of such Old Notes into the name of the person withdrawing the tender
and (iv) specify the name in which any such Old Notes are to be registered, if
different from that of the
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<PAGE> 30
Depositor. All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by the Company, whose
determination shall be final and binding on all parties. Any Old Notes so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no Exchange Notes will be issued with respect thereto unless
the Old Notes so withdrawn are validly retendered. Any Old Notes which have been
tendered but which are not accepted for exchange will be returned to the holder
thereof without cost to such holder as soon as practicable after withdrawal,
rejection of tender or termination of the Exchange Offer. Properly withdrawn Old
Notes may be retendered by following one of the procedures described above under
"-- Procedures for Tendering" at any time prior to the Expiration Date.
CONDITIONS
Notwithstanding any other term of the Exchange Offer, the Company shall not
be required to accept for exchange, or exchange Exchange Notes for, any Old
Notes, and may terminate or amend the Exchange Offer as provided herein before
the acceptance of such Old Notes, if:
(a) any action or proceeding is instituted or threatened in any court
or by or before any governmental agency with respect to the Exchange Offer
which, in the sole judgment of the Company, might materially impair the
ability of the Company to proceed with the Exchange Offer or any material
adverse development has occurred in any existing action or proceeding with
respect to the Company or any of its subsidiaries; or
(b) any law, statute, rule, regulation or interpretation by the Staff
of the Commission is proposed, adopted or enacted, which, in the sole
judgment of the Company, might materially impair the ability of the Company
to proceed with the Exchange Offer or materially impair the contemplated
benefits of the Exchange Offer to the Company; or
(c) any governmental approval has not been obtained, which approval
the Company shall, in its sole discretion, deem necessary for the
consummation of the Exchange Offer as contemplated hereby.
If the Company determines in its sole discretion that any of the conditions
are not satisfied, the Company may (i) refuse to accept any Old Notes and return
all tendered Old Notes to the tendering holders, (ii) extend the Exchange Offer
and retain all Old Notes tendered prior to the expiration of the Exchange Offer,
subject, however, to the rights of holders to withdraw such Old Notes (see
"-- Withdrawal of Tenders") or (iii) waive such unsatisfied conditions with
respect to the Exchange Offer and accept all properly tendered Old Notes which
have not been withdrawn.
EXCHANGE AGENT
The Bank of New York has been appointed as Exchange Agent for the Exchange
Offer. Questions and requests for assistance, requests for additional copies of
this Prospectus or of the Letter of Transmittal and requests for Notice of
Guaranteed Delivery should be directed to the Exchange Agent addressed as
follows:
The Bank of New York
101 Barclay Street -- 7E
New York, New York 10286
Attention: Reorganization Section, Enrique Lopez
Telephone: (212) 815-2742
Facsimile: (212) 815-6339
Delivery to an address other than as set forth above will not constitute a
valid delivery.
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telecopy, telephone or in person by officers and
regular employees of the Company and its affiliates.
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<PAGE> 31
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers, or others
soliciting acceptances of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer will
be paid by the Company. Such expenses include fees and expenses of the Exchange
Agent and Trustee, accounting and legal fees and printing costs, among others.
ACCOUNTING TREATMENT
The Exchange Notes will be recorded at the same carrying value as the Old
Notes, which is face value, as reflected in the Company's accounting records on
the date of exchange. Accordingly, no gain or loss for accounting purposes will
be recognized by the Company. The expenses of the Exchange Offer will be
expensed over the term of the Exchange Notes.
CONSEQUENCES OF FAILURE TO EXCHANGE
The Old Notes that are not exchanged for Exchange Notes pursuant to the
Exchange Offer will remain restricted securities. Accordingly, such Old Notes
may be resold only (i) to the Company (upon redemption thereof or otherwise),
(ii) so long as the Old Notes are eligible for resale pursuant to Rule 144A, to
a person inside the United States whom the seller reasonably believes is a
qualified institutional buyer within the meaning of Rule 144A under the
Securities Act in a transaction meeting the requirements of Rule 144A, in
accordance with Rule 144 under the Securities Act, or pursuant to another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel reasonably acceptable to the Company), (iii) outside
the United States to a foreign person in a transaction meeting the requirements
of Rule 904 under the Securities Act, or (iv) pursuant to an effective
registration statement under the Securities Act, in each case in accordance with
any applicable securities laws of any state of the United States. To the extent
that Old Notes are tendered and accepted in the Exchange Offer, the trading
market for untendered and tendered but unaccepted Old Notes could be adversely
affected.
RESALE OF THE EXCHANGE NOTES
With respect to resales of Exchange Notes, based on interpretations by the
Staff set forth in no-action letters issued to third parties, the Company
believes that a holder or other person who receives Exchange Notes, whether or
not such person is the holder (other than a person that is an "affiliate" of the
Company within the meaning of Rule 405 under the Securities Act) who receives
Exchange Notes in exchange for Old Notes in the ordinary course of business and
who is not participating, does not intend to participate, and has no arrangement
or understanding with any person to participate, in the distribution of the
Exchange Notes, will be allowed to resell the Exchange Notes to the public
without further registration under the Securities Act and without delivering to
the purchasers of the Exchange Notes a prospectus that satisfies the
requirements Section 10 of the Securities Act. However, if any holder acquires
Exchange Notes in the Exchange Offer for the purpose of distributing or
participating in a distribution of the Exchange Notes, such holder cannot rely
on the position of the Staff enunciated in such no-action letters or any similar
interpretive letters, and must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction, unless an exemption from registration is otherwise available.
Further, each Participating Broker-Dealer that receives Exchange Notes for its
own account in exchange for Old Notes, where such Old Notes were acquired by
such Participating Broker-Dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes.
As contemplated by these no-action letters and the Registration Rights
Agreement, each holder accepting the Exchange Offer is required to represent to
the Company in the Letter of Transmittal that (i) the Exchange Notes are to be
acquired by the holder or the person receiving such Exchange Notes, whether or
not such person is the holder, in the ordinary course of business, (ii) the
holder or any such other person (other
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than a broker-dealer referred to in the next sentence) is not engaging and does
not intend to engage, in the distribution of the Exchange Notes, (iii) the
holder or any such other person has no arrangement or understanding with any
person to participate in the distribution of the Exchange Notes, (iv) neither
the holder nor any such other person is an "affiliate" of the Company within the
meaning of Rule 405 under the Securities Act, and (v) the holder or any such
other person acknowledges that if such holder or other person participates in
the Exchange Offer for the purpose of distributing the Exchange Notes it must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale of the Exchange-Notes and cannot
rely on those no-action letters. As indicated above, each Participating Broker-
Dealer that receives an Exchange Note for its own account in exchange for Old
Notes must acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Notes. For a description of the procedures for such
resales by Participating Broker-Dealers, see "Plan of Distribution."
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following discussion is based upon current provisions of the Internal
Revenue Code of 1986, as amended, applicable Treasury regulations, judicial
authority and administrative rulings and practice. There can be no assurance
that the Internal Revenue Service (the "Service") will not take a contrary view,
and no ruling from the Service has been or will be sought. Legislative, judicial
or administrative changes or interpretations may be forthcoming that could alter
or modify the statements and conditions set forth herein. Any such changes or
interpretations may or may not be retroactive and could affect the tax
consequences to holders. Certain holders (including insurance companies,
tax-exempt organizations, financial institutions, broker-dealers, foreign
corporations and persons who are not citizens or residents of the United States)
may be subject to special rules not discussed below. The Company recommends that
each holder consult such holder's own tax advisor as to the particular tax
consequences of exchanging such holder's Notes for Exchange Notes, including the
applicability and effect of any state, local or foreign tax laws.
The exchange of the Notes for the Exchange Notes pursuant to the Exchange
Offer should not be a taxable event to the holder and thus the holder should not
recognize any taxable gain or loss as a result of the exchange. A holder's
adjusted tax basis in the Exchange Notes will be the same as his adjusted tax
basis in the Notes exchanged therefor, and his holding period for the Notes will
be included in his holding period for the Exchange Notes if the Notes are held
as capital assets on the Expiration Date. Although the exchange of the Notes for
the Exchange Notes will not create additional "market discount" or "amortizable
bond premium," to the extent that a holder acquired the Notes at a market
discount or with amortizable bond premium, such discount or premium would
generally carry over to the Exchange Notes received in exchange for the Notes.
Such holders should consult their tax advisors regarding the United States
Federal income tax treatment of such market discount and amortizable bond
premium.
PLAN OF DISTRIBUTION
Each broker-dealer that acquired Old Notes for its own account as a result
of market-making or other trading activities (a "Participating Broker-Dealer")
and that receives Exchange Notes for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Notes. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Participating Broker-Dealer in
connection with resales of Exchange Notes received in exchange for Old Notes
where such Old Notes were acquired as a result of market-making activities or
other trading activities. The Company has agreed that for a period not to exceed
180 days after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Participating Broker-Dealer for use in connection
with any such resale. In addition, until , 1998, all dealers
effecting transactions in the Exchange Notes may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sales of the Exchange
Notes by Participating Broker-Dealers. Exchange Notes received by Participating
Broker-Dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange Notes or
a combination of such
31
<PAGE> 33
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
Participating Broker-Dealer and/or the purchasers of any such Exchange Notes.
Any Participating Broker-Dealer that resells the Exchange Notes that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Notes may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Notes and any commissions or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that by acknowledging that
it will deliver and by delivering a prospectus, a Participating Broker-Dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
For a period not to exceed 180 days after the Expiration Date the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Participating Broker-Dealer that requests
such documents in the Letter of Transmittal.
LEGAL MATTERS
Certain legal matters in connection with the issuance of Exchange Notes
offered hereby will be passed upon for the Company by Ballard Spahr Andrews &
Ingersoll, Philadelphia, Pennsylvania.
EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
With respect to the unaudited interim financial information for the periods
ended March 31, 1997 and 1996 and June 30, 1997 and 1996 which is incorporated
herein by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their reports included in the Company's Quarterly Reports
on Form 10-Q for the quarters ended March 31, 1997 and June 30, 1997 and
incorporated by reference herein, they did not audit and they do not express an
opinion on that interim financial information. Accordingly, the degree of
reliance on their reports on such information should be restricted in light of
the limited nature of the review procedures applied. Deloitte & Touche LLP are
not subject to the liability provisions of Section 11 of the Securities Act for
their reports on the unaudited interim financial information because those
reports are not "reports" or a "part" of the registration statement prepared or
certified by an accountant within the meaning of Sections 7 and 11 of the
Securities Act.
32
<PAGE> 34
============================================================
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS, AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE INITIAL PURCHASERS. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL, OR THE SOLICITATION OF AN OFFER TO BUY,
ANY SECURITY OTHER THAN THE NOTES OFFERED HEREBY, NOR DOES IT CONSTITUTE AN
OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE NOTES TO ANYONE IN
ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT WOULD BE UNLAWFUL TO MAKE
SUCH AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN IMPLICATION THAT
THERE HAS NOT BEEN A CHANGE IN THE INFORMATION SET FORTH IN THIS PROSPECTUS OR
IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................... 2
Incorporation of Certain Documents by
Reference................................ 2
Prospectus Summary......................... 4
Recent Developments........................ 10
Use of Proceeds............................ 10
Capitalization............................. 11
Selected Consolidated Financial Data....... 12
Business................................... 13
Description of Notes....................... 14
The Exchange Offer......................... 22
Certain Federal Income Tax Consequences.... 31
Plan of Distribution....................... 31
Legal Matters.............................. 32
Experts.................................... 32
</TABLE>
UNTIL , 1998 (90 DAYS AFTER THE DATE OF THIS PROSPECTUS), ALL
DEALERS EFFECTING TRANSACTIONS IN THE EXCHANGE NOTES OFFERED HEREBY, WHETHER OR
NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN ADDITION TO THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN
ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
============================================================
============================================================
[GLATFELTER LOGO]
P. H. GLATFELTER COMPANY
OFFER TO EXCHANGE ITS
6 7/8% NOTES DUE 2007, SERIES B
FOR ANY AND ALL OF
ITS OUTSTANDING
6 7/8% NOTES DUE 2007
--------------------
PROSPECTUS
--------------------
, 1997
PRINTED ON ECUSTA NYALITE(R)
MANUFACTURED BY THE ECUSTA DIVISION OF THE
P. H. GLATFELTER COMPANY
BASIS 25 X 38 -- 27 LBS.
============================================================
<PAGE> 35
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Pennsylvania Business Corporation Law of 1988 authorizes the Company to
grant indemnities to directors and officers in terms sufficiently broad to
permit indemnification of such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act.
The Company's By-laws include a provision to eliminate the personal
liability of its directors for monetary damages for breach or alleged breach of
their duty of care to the full extent permitted by Pennsylvania law. In
addition, Article III of the Company's By-laws provides:
INDEMNIFICATION
3.1 Indemnification of Directors, Officers and Other Persons. The Company
shall indemnify any director or officer of the Company or any of its
subsidiaries who was or is an "authorized representative" of the Company (which
shall mean for the purposes of Paragraphs 3.1 through 3.7, a director or
officer, partner, fiduciary or trustee of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise) and who was or
is a "party" (which shall include for purposes of Paragraphs 3.1 through 3.7 the
giving of testimony or similar involvement) or is threatened to be made a party
to any "proceeding" (which shall mean for purposes of Paragraphs 3.1 through 3.7
any threatened, pending or completed action, suit, appeal or other proceeding of
any nature, whether civil, criminal, administrative or investigative, whether
formal or informal, and whether brought by or in the right of the Company, its
shareholders or otherwise) by reason of the fact that such person was or is an
authorized representative of the Company to the fullest extent permitted by law,
including without limitation indemnification against expenses (which shall
include for purposes of Paragraphs 3.1 through 3.7 attorneys' fees and
disbursements), damages, punitive damages, judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such proceeding unless the act or failure to act giving rise to
the claim is finally determined by a court to have constituted willful
misconduct or recklessness. If an authorized representative is not entitled to
indemnification in respect of a portion of any liabilities to which such person
may be subject, the Company shall nonetheless indemnify such person to the
maximum extent for the remaining portion of the liabilities.
3.2 Advancement of Expenses. The Company shall pay the expenses
(including attorneys' fees and disbursements) actually and reasonably incurred
in defending a proceeding on behalf of any person entitled to indemnification
under Paragraph 3.1 in advance of the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of such person to repay such amount if
it shall ultimately be determined that such person is not entitled to be
indemnified by the Company as authorized in Paragraphs 3.1 through 3.7 and may
pay such expenses in advance on behalf of any employee or agent on receipt of a
similar undertaking. The financial ability of such authorized representative to
make such repayment shall not be prerequisite to the making of an advance.
3.3 Employee Benefit Plans. For purposes of Paragraphs 3.1 through 3.7,
the Company shall be deemed to have requested an officer or director to serve as
fiduciary with respect to an employee benefit plan where the performance by such
person of duties to the Company also imposes duties on, or otherwise involves
services by, such person as a fiduciary with respect to the plan; excise taxes
assessed on an authorized representative with respect to any transaction with an
employee benefit plan shall be deemed "fines"; and action taken or omitted by
such person with respect to an employee benefit plan in the performance of
duties for a purpose reasonably believed to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Company.
3.4 Security For Indemnification Obligations. To further effect, satisfy
or secure the indemnification obligations provided herein or otherwise, the
Company may maintain insurance, obtain a letter of credit, act as self-insurer,
create a reserve, trust, escrow, cash collateral or other fund or account, enter
into indemnification agreements, pledge or grant a security interest in any
assets or properties of the Company, or use any other
II-1
<PAGE> 36
mechanism or arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall deem
appropriate.
3.5 Reliance Upon Provisions. Each person who shall act as an authorized
representative of the Company shall be deemed to be doing so in reliance upon
the rights of indemnification provided by these Paragraphs 3.1 through 3.7.
3.6 Amendment or Repeal. All rights of indemnification under Paragraphs
3.1 through 3.7 shall be deemed a contract between the Company and the person
entitled to indemnification under these Paragraphs 3.1 through 3.7 pursuant to
which the Company and each such person intend to be legally bound. Any repeal,
amendment or modification hereof shall be prospective only and shall not limit,
but may expand, any rights or obligations in respect of any proceeding whether
commenced prior to or after such change to the extent such proceeding pertains
to actions or failures to act occurring prior to such change.
3.7 Scope. The indemnification, as authorized by these Paragraphs 3.1
through 3.7, shall not be deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be entitled under any
statute, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in an official capacity and as to action in any
other capacity while holding such office. The indemnification and advancement of
expenses provided by or granted pursuant to these Paragraphs 3.1 through 3.7
shall continue as to a person who has ceased to be an officer or director in
respect of matters arising prior to such time, and shall inure to the benefit of
the heirs and personal representatives of such person.
The Company has insurance coverage for losses by any person who is or
hereafter may be a director or officer of the Company arising from claims
against that person for any wrongful act (subject to certain exceptions) in his
capacity as a director or officer of the Company. The policy also provides for
reimbursement to the Company for indemnification given by the Company, pursuant
to common statutory law or its Articles of Incorporation or By-laws, to any such
person arising from any such claim. The policy's coverage is limited to a
maximum of $10,000,000 for each loss and each policy year and there is a
deductible of $1,000,000 for the Company.
II-2
<PAGE> 37
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
3.1 Articles of Amendment dated April 27, 1977, including restated Articles of
Incorporation (incorporated by reference to Exhibit 3(a) of Company's Annual Report
on Form 10-K for the year ended December 31, 1993) as amended by Articles of Merger
dated January 30, 1979 (incorporated by reference to Exhibit 3(a) of Company's Annual
Report on Form 10-K for the year ended December 31, 1993); a Statement of Reduction
of Authorized Shares dated May 12, 1980 (incorporated by reference to Exhibit 3(a) of
Company's Annual Report on Form 10-K for the year ended December 31, 1993); a
Statement of Reduction of Authorized Shares dated September 23, 1981 (incorporated by
reference to Exhibit 3(a) of Company's Annual Report on Form 10-K for the year ended
December 31, 1993); a Statement of Reduction of Authorized Shares dated August 2,
1982 (incorporated by reference to Exhibit 3(a) of Company's Annual Report on Form
10-K for the year ended December 31, 1993); a Statement of Reduction of Authorized
Shares dated July 29, 1983 (incorporated by reference to Exhibit 3(a) of Company's
Annual Report on Form 10-K for the year ended December 31, 1993); by Articles of
Amendment dated April 25, 1984 (incorporated by reference to Exhibit 3(a) of
Company's Annual Report on Form 10-K for the year ended December 31, 1984); a
Statement of Reduction of Authorized Shares dated October 15, 1984 (incorporated by
reference to Exhibit (3)(b) of Company's Form 10-K for the year ended December 31,
1984); a Statement of Reduction of Authorized Shares dated December 24, 1985
(incorporated by reference to Exhibit (3)(b) of Company's Form 10-K for the year
ended December 31, 1985); by Articles of Amendment dated April 23, 1986 (incorporated
by reference to Exhibit (3) of Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1986); a Statement of Reduction of Authorized Shares dated
July 11, 1986 (incorporated by reference to Exhibit (3)(b) of Company's Form 10-K for
the year ended December 31, 1986); a Statement of Reduction of Authorized Shares
dated March 25, 1988 (incorporated by reference to Exhibit (3)(b) of Company's Form
10-K for the year ended December 31, 1987); a Statement of Reduction of Authorized
Shares dated November 9, 1988 (incorporated by reference to Exhibit (3)(b) of
Company's Form 10-K for the year ended December 31, 1988); a Statement of Reduction
of Authorized Shares dated April 24, 1989 (incorporated by reference to Exhibit 3(b)
of Company's Form 10-K for the year ended December 31, 1989); Articles of Amendment
dated November 29, 1990 (incorporated by reference to Exhibit 3(b) of Company's Form
10-K for the year ended December 31, 1990); Articles of Amendment dated June 26, 1991
(incorporated by reference to Exhibit 3(b) of Company's Form 10-K for the year ended
December 31, 1991); Articles of Amendment dated August 7, 1992 (incorporated by
reference to Exhibit 3(b) of Company's Form 10-K for the year ended December 31,
1992); Articles of Amendment dated July 30, 1993 (incorporated by reference to
Exhibit 3(b) of Company's Form 10-K for the year ended December 31, 1993); and
Articles of Amendment dated January 26, 1994 (incorporated by reference to Exhibit
3(b) of Company's Form 10-K for the year ended December 31, 1993).
3.2 Articles of Incorporation, as amended through January 26, 1994 (restated for the
purpose of filing on EDGAR) (incorporated by reference to Exhibit 3(c) of Company's
Form 10-K for the year ended December 31, 1993).
3.3 By-Laws, as amended through March 14, 1996 (incorporated by reference to Exhibit 3(c)
of Company's Form 10-K for the year ended December 31, 1996).
4.1 Indenture, dated as of July 22, 1997, between P. H. Glatfelter Company and The Bank
of New York, relating to the 6 7/8% Notes due 2007.
4.2 Purchase Agreement, dated as of July 17, 1997, among P. H. Glatfelter Company, Bear,
Stearns & Co. Inc. and BT Securities Corporation, relating to the 6 7/8% Notes.
4.3 Registration Rights Agreement, dated as of July 22, 1997, among P. H. Glatfelter
Company, Bear, Stearns & Co. Inc. and BT Securities Corporation, relating to the
6 7/8% Notes due 2007.
</TABLE>
II-3
<PAGE> 38
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -------------------------------------------------------------------------------------
<C> <S>
4.4 Indenture between P. H. Glatfelter Company and Wachovia Bank of Georgia, N.A., as
Trustee, dated as of January 15, 1993 (incorporated by reference to Exhibit 4(a) of
Company's Form 10-K for the year ended December 31, 1993).
4.5 Form of Note issued to Purchasers of 5 7/8% Notes due March 1, 1998 (incorporated by
reference to Exhibit 4(b) of Company's Form 10-K for the year ended December 31,
1992).
4.6 Escrow Agreement, dated as of February 24, 1997 between P. H. Glatfelter Company and
the Bank of New York relating to 5 7/8% Notes due March 1, 1998 (incorporated by
reference to Exhibit (4)(c) of the Company's Form 10-K for the year ended December
31, 1996).
4.7 Loan Agreement, dated February 24, 1997 between P. H. Glatfelter Company, as
borrower, and GWS Valuch, Inc., as lender (incorporated by reference to Exhibit 10(h)
of the Company's Form 10-K for the year ended December 31, 1996).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll.
10.1 P. H. Glatfelter Company Management Incentive Plan, adopted as of January 1, 1994, as
amended and restated effective March 13, 1997 (incorporated by reference to Exhibit B
of Company's Proxy Statement dated March 14, 1997).
10.2 P. H. Glatfelter Company 1988 Restricted Common Stock Award Plan, as amended and
restated June 24, 1992 (incorporated by reference to Exhibit 10(c) of Company's Form
10-K for the year ended December 31, 1992).
10.3 P. H. Glatfelter Company Supplemental Executive Retirement Plan, effective January 1,
1988, as amended and restated December 22, 1994 (incorporated by reference to Exhibit
10(c) of Company's Form 10-K for the year ended December 31, 1994).
10.4 Deferral Benefit Pension Plan of Ecusta Division, effective May 22, 1986
(incorporated by reference to Exhibit 10(ee) of Company's Form 10-K for the year
ended December 31, 1987).
10.5 Description of Executive Salary Continuation Plan (incorporated by reference to
Exhibit 10(g) of Company's Form 10-K for the year ended December 31, 1990).
10.6 P. H. Glatfelter Company Plan of Supplemental Retirement Benefits for the Management
Committee, as amended and restated effective June 28, 1989 (incorporated by reference
to Exhibit 10(h) of Company's Form 10-K for the year ended December 31, 1989).
10.7 P. H. Glatfelter Company 1992 Key Employee Long-Term Incentive Plan, as amended April
23, 1997 (incorporated by reference to Exhibit A of Company's Proxy Statement dated
March 14, 1997).
10.8 Agreement between the State of Wisconsin and Certain Companies Concerning the Fox
River, dated as of January 31, 1997, among P. H. Glatfelter Company, Fort Howard
Corporation, NCR Corporation, Appleton Papers Inc., Riverside Paper Corporation, U.S.
Paper Mills, Wisconsin Tissue Mills Inc. and the State of Wisconsin (incorporated by
reference to Exhibit 10(i) of the Company's Form 10-K for the year ended December 31,
1996).
12.1 Statement of Ratio of Earnings to Fixed Charges.
15.1 Letter in Lieu of Consent Regarding Review Report of Unaudited Interim Financial
Information.
21.1 Subsidiaries of P. H. Glatfelter Company.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1).
24.1 Powers of Attorney (included in Signature Page).
25.1 Statement of Eligibility of Trustee.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Exchange Agent Agreement.
</TABLE>
II-4
<PAGE> 39
ITEM 22. UNDERTAKINGS.
The undersigned Company hereby undertakes:
(1) To file, during any period in which any offers or sales are being made,
a post-effective amendment to the registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offering therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration form with
respect to reofferings by persons who may be deemed underwriters, in addition to
the information called for by the other items of the applicable form.
(5) That every prospectus: (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to the
registration statement and will not be used until such amendment is effective,
and that, for purposes of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(6) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions or otherwise, the Company has been
advised that in the opinion of the Securities and Exchange Commission (the
"SEC") such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(7) To respond to requests for information that is incorporated by
reference into the Prospectus pursuant to Item 4, 10(b), 11 or 13 of this form,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of the
registration statement through the date of the request.
(8) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
II-5
<PAGE> 40
applicable, each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(9) That, for purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of that time it was declared effective.
(10) It will file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section 310 of the
Trust Indenture Act in accordance with the rules and regulations prescribed by
the SEC under Section 305(b)(2) of the Trust Indenture Act.
II-6
<PAGE> 41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Spring Grove, Commonwealth of Pennsylvania, on
September 24, 1997.
P. H. GLATFELTER COMPANY
By: /s/ T.C. NORRIS
------------------------------------
T. C. Norris
Chairman, President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints T. C. Norris, R. P. Newcomer and R. S. Wood and
each of them, as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to the Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or their or his substitute
or substitutes, may lawfully do or cause to be done by virtue hereof.
------------------------
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ -------------------
<C> <S> <C>
/s/ T. C. NORRIS Chairman, President, Chief September 24, 1997
- ------------------------------------------ Executive Officer and Director
T. C. Norris
/s/ G. H. GLATFELTER II Senior Vice President and September 24, 1997
- ------------------------------------------ Director
G. H. Glatfelter II
/s/ R. P. NEWCOMER Senior Vice President and September 24, 1997
- ------------------------------------------ Chief Financial Officer
R. P. Newcomer
/s/ C. M. SMITH Comptroller September 24, 1997
- ------------------------------------------
C. M. Smith
/s/ R. E. CHAPPELL Director September 24, 1997
- ------------------------------------------
R. E. Chappell
/s/ N. DEBENEDICTIS Director September 24, 1997
- ------------------------------------------
N. DeBenedictis
</TABLE>
II-7
<PAGE> 42
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ------------------------------ -------------------
<C> <S> <C>
/s/ G. H. GLATFELTER Director September 24, 1997
- ------------------------------------------
G. H. Glatfelter
/s/ R.S. HILLAS Director September 24, 1997
- ------------------------------------------
R. S. Hillas
/s/ M.A. JOHNSON II Director September 24, 1997
- ------------------------------------------
M. A. Johnson II
/s/ R. W. KELSO Director September 24, 1997
- ------------------------------------------
R. W. Kelso
/s/ P. R. ROEDEL Director September 24, 1997
- ------------------------------------------
P. R. Roedel
/s/ J. M. SANZO Director September 24, 1997
- ------------------------------------------
J. M. Sanzo
/s/ R. L. SMOOT Director September 24, 1997
- ------------------------------------------
R. L. Smoot
</TABLE>
II-8
<PAGE> 43
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- ------ -------------------------------------------------------------------------- ------------
<C> <S> <C>
3.1 Articles of Amendment dated April 27, 1977, including restated Articles of
Incorporation (incorporated by reference to Exhibit 3(a) of Company's
Annual Report on Form 10-K for the year ended December 31, 1993) as
amended by Articles of Merger dated January 30, 1979 (incorporated by
reference to Exhibit 3(a) of Company's Annual Report on Form 10-K for the
year ended December 31, 1993); a Statement of Reduction of Authorized
Shares dated May 12, 1980 (incorporated by reference to Exhibit 3(a) of
Company's Annual Report on Form 10-K for the year ended December 31,
1993); a Statement of Reduction of Authorized Shares dated September 23,
1981 (incorporated by reference to Exhibit 3(a) of Company's Annual Report
on Form 10-K for the year ended December 31, 1993); a Statement of
Reduction of Authorized Shares dated August 2, 1982 (incorporated by
reference to Exhibit 3(a) of Company's Annual Report on Form 10-K for the
year ended December 31, 1993); a Statement of Reduction of Authorized
Shares dated July 29, 1983 (incorporated by reference to Exhibit 3(a) of
Company's Annual Report on Form 10-K for the year ended December 31,
1993); by Articles of Amendment dated April 25, 1984 (incorporated by
reference to Exhibit 3(a) of Company's Annual Report on Form 10-K for the
year ended December 31, 1984); a Statement of Reduction of Authorized
Shares dated October 15, 1984 (incorporated by reference to Exhibit (3)(b)
of Company's Form 10-K for the year ended December 31, 1984); a Statement
of Reduction of Authorized Shares dated December 24, 1985 (incorporated by
reference to Exhibit (3)(b) of Company's Form 10-K for the year ended
December 31, 1985); by Articles of Amendment dated April 23, 1986
(incorporated by reference to Exhibit (3) of Company's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1986); a Statement of Reduction
of Authorized Shares dated July 11, 1986 (incorporated by reference to
Exhibit (3)(b) of Company's Form 10-K for the year ended December 31,
1986); a Statement of Reduction of Authorized Shares dated March 25, 1988
(incorporated by reference to Exhibit (3)(b) of Company's Form 10-K for
the year ended December 31, 1987); a Statement of Reduction of Authorized
Shares dated November 9, 1988 (incorporated by reference to Exhibit (3)(b)
of Company's Form 10-K for the year ended December 31, 1988); a Statement
of Reduction of Authorized Shares dated April 24, 1989 (incorporated by
reference to Exhibit 3(b) of Company's Form 10-K for the year ended
December 31, 1989); Articles of Amendment dated November 29, 1990
(incorporated by reference to Exhibit 3(b) of Company's Form 10-K for the
year ended December 31, 1990); Articles of Amendment dated June 26, 1991
(incorporated by reference to Exhibit 3(b) of Company's Form 10-K for the
year ended December 31, 1991); Articles of Amendment dated August 7, 1992
(incorporated by reference to Exhibit 3(b) of Company's Form 10-K for the
year ended December 31, 1992); Articles of Amendment dated July 30, 1993
(incorporated by reference to Exhibit 3(b) of Company's Form 10-K for the
year ended December 31, 1993); and Articles of Amendment dated January 26,
1994 (incorporated by reference to Exhibit 3(b) of Company's Form 10-K for
the year ended December 31, 1993).........................................
3.2 Articles of Incorporation, as amended through January 26, 1994 (restated
for the purpose of filing on EDGAR) (incorporated by reference to Exhibit
3(c) of Company's Form 10-K for the year ended December 31, 1993).........
3.3 By-Laws, as amended through March 14, 1996 (incorporated by reference to
Exhibit 3(c) of Company's Form 10-K for the year ended December 31,
1996).....................................................................
</TABLE>
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<TABLE>
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SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
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4.1 Indenture, dated as of July 22, 1997, between P. H. Glatfelter Company and
The Bank of New York, relating to the 6 7/8% Notes due 2007...............
4.2 Purchase Agreement, dated as of July 17, 1997, among P. H. Glatfelter
Company, Bear, Stearns & Co. Inc. and BT Securities Corporation, relating
to the 6 7/8% Notes.......................................................
4.3 Registration Rights Agreement, dated as of July 22, 1997, among P. H.
Glatfelter Company, Bear, Stearns & Co. Inc. and BT Securities
Corporation, relating to the 6 7/8% Notes due 2007........................
4.4 Indenture between P. H. Glatfelter Company and Wachovia Bank of Georgia,
N.A., as Trustee, dated as of January 15, 1993 (incorporated by reference
to Exhibit 4(a) of Company's Form 10-K for the year ended December 31,
1993).....................................................................
4.5 Form of Note issued to Purchasers of 5 7/8% Notes due March 1, 1998
(incorporated by reference to Exhibit 4(b) of Company's Form 10-K for the
year ended December 31, 1992).............................................
4.6 Escrow Agreement, dated as of February 24, 1997 between P. H. Glatfelter
Company and the Bank of New York relating to 5 7/8% Notes due March 1,
1998 (incorporated by reference to Exhibit (4)(c) of the Company's Form
10-K for the year ended December 31, 1996)................................
4.7 Loan Agreement, dated February 24, 1997 between P. H. Glatfelter Company,
as borrower, and GWS Valuch, Inc., as lender (incorporated by reference to
Exhibit 10(h) of the Company's Form 10-K for the year ended December 31,
1996).....................................................................
5.1 Opinion of Ballard Spahr Andrews & Ingersoll..............................
10.1 P. H. Glatfelter Company Management Incentive Plan, adopted as of January
1, 1994, as amended and restated effective March 13, 1997 (incorporated by
reference to Exhibit B of Company's Proxy Statement dated March 14,
1997).....................................................................
10.2 P. H. Glatfelter Company 1988 Restricted Common Stock Award Plan, as
amended and restated June 24, 1992 (incorporated by reference to Exhibit
10(c) of Company's Form 10-K for the year ended December 31, 1992)........
10.3 P. H. Glatfelter Company Supplemental Executive Retirement Plan, effective
January 1, 1988, as amended and restated December 22, 1994 (incorporated
by reference to Exhibit 10(c) of Company's Form 10-K for the year ended
December 31, 1994)........................................................
10.4 Deferral Benefit Pension Plan of Ecusta Division, effective May 22, 1986
(incorporated by reference to Exhibit 10(ee) of Company's From 10-K for
the year ended December 31, 1987).........................................
10.5 Description of Executive Salary Continuation Plan (incorporated by
reference to Exhibit 10(g) of Company's Form 10-K for the year ended
December 31, 1990)........................................................
10.6 P. H. Glatfelter Company Plan of Supplemental Retirement Benefits for the
Management Committee, as amended and restated effective June 28, 1989
(incorporated by reference to Exhibit 10(h) of Company's Form 10-K for the
year ended December 31, 1989).............................................
10.7 P. H. Glatfelter Company 1992 Key Employee Long-Term Incentive Plan, as
amended April 23, 1997 (incorporated by reference to Exhibit A of
Company's Proxy Statement dated March 14, 1997)...........................
</TABLE>
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<TABLE>
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SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
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10.8 Agreement between the State of Wisconsin and Certain Companies Concerning
the Fox River, dated as of January 31, 1997, among P. H. Glatfelter
Company, Fort Howard Corporation, NCR Corporation, Appleton Papers Inc.,
Riverside Paper Corporation, U.S. Paper Mills, Wisconsin Tissue Mills Inc.
and the State of Wisconsin (incorporated by reference to Exhibit 10(i) of
the Company's Form 10-K for the year ended December 31, 1996).............
12.1 Statement of Ratio of Earnings to Fixed Charges...........................
15.1 Letter in Lieu of Consent Regarding Review Report of Unaudited Interim
Financial Information.....................................................
21.1 Subsidiaries of P. H. Glatfelter Company..................................
23.1 Consent of Deloitte & Touche LLP..........................................
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 5.1)....
24.1 Powers of Attorney (included in Signature Page)...........................
25.1 Statement of Eligibility of Trustee.......................................
99.1 Form of Letter of Transmittal.............................................
99.2 Form of Notice of Guaranteed Delivery.....................................
99.3 Form of Exchange Agent Agreement..........................................
</TABLE>
<PAGE> 1
EXHIBIT 4.1
P.H. GLATFELTER COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
-------------------
INDENTURE
DATED AS OF JULY 22, 1997
-------------------
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TABLE OF CONTENTS
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RECITALS OF THE COMPANY...........................................................................................1
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions ..............................................................................1
SECTION 1.02. Compliance Certificates and Opinions..............................................................11
SECTION 1.03. Form of Documents Delivered to Trustee............................................................11
SECTION 1.04. Acts of Holders .............................................................................12
SECTION 1.05. Notices, Etc., to Trustee and Company.............................................................13
SECTION 1.06. Notices to Holders .............................................................................13
SECTION 1.07. Compliance with Trust Indenture Act...............................................................14
SECTION 1.08. Effect of Headings and Table of Contents..........................................................14
SECTION 1.09. Successors and Assigns............................................................................14
SECTION 1.10. Separability Clause .............................................................................14
SECTION 1.11. Benefits of Indenture.............................................................................14
SECTION 1.12. Governing Law .............................................................................15
SECTION 1.13. Legal Holidays .............................................................................15
SECTION 1.14. Liability Solely Corporate........................................................................15
SECTION 1.15. Counterparts .............................................................................15
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally .............................................................................16
SECTION 2.02. Form of Face of Security..........................................................................16
SECTION 2.03. Form of Reverse of Security.......................................................................21
SECTION 2.04. Form of Trustee's Certificate of Authentication...................................................33
SECTION 2.05. Form of Legend for Global Securities..............................................................33
SECTION 2.06. Form of Legend on Restricted Securities...........................................................34
ARTICLE III
The Securities
SECTION 3.01. Title and Terms .............................................................................34
</TABLE>
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SECTION 3.02. Denominations .............................................................................36
SECTION 3.03. Execution, Authentication, Delivery and Dating....................................................36
SECTION 3.04. Temporary Securities .............................................................................39
SECTION 3.05. Registration, Registration of Transfer and Exchange...............................................39
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities..................................................42
SECTION 3.07. Payment of Interest; Interest Rights Preserved....................................................43
SECTION 3.08. Persons Deemed Owners.............................................................................44
SECTION 3.09. Cancellation .............................................................................45
SECTION 3.10. Computation of Interest...........................................................................45
SECTION 3.11. CUSIP Numbers .............................................................................45
SECTION 3.12. Book-Entry Provisions for Global Security.........................................................46
SECTION 3.13. Special Transfer Provisions.......................................................................48
SECTION 3.14. Maintenance of Office or Agency...................................................................52
SECTION 3.15. Money for Securities; Payments To Be Held in Trust................................................53
SECTION 3.16. Rule 144A Information Requirement.................................................................54
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture...........................................................55
SECTION 4.02. Application of Trust Money........................................................................56
SECTION 4.03. Defeasance and Discharge of Indenture.............................................................57
SECTION 4.04. Defeasance of Certain Obligations.................................................................59
SECTION 4.05. Reinstatement .............................................................................60
SECTION 4.06. Miscellaneous Provisions..........................................................................61
ARTICLE V
Remedies
SECTION 5.01. Events of Default .............................................................................61
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment................................................63
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...................................64
SECTION 5.04. Trustee May File Proofs of Claim..................................................................65
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.......................................66
SECTION 5.06. Application of Money Collected....................................................................66
SECTION 5.07. Limitation on Suits .............................................................................67
</TABLE>
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SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.........................67
SECTION 5.09. Restoration of Rights and Remedies................................................................68
SECTION 5.10. Rights and Remedies Cumulative....................................................................68
SECTION 5.11. Delay or Omission Not Waiver......................................................................68
SECTION 5.12. Control by Holders .............................................................................68
SECTION 5.13. Waiver of Past Defaults...........................................................................69
SECTION 5.14. Undertaking for Costs.............................................................................69
SECTION 5.15. Waiver of Stay or Extension Laws..................................................................70
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities...............................................................70
SECTION 6.02. Notice of Defaults .............................................................................72
SECTION 6.03. Certain Rights of Trustee.........................................................................72
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities............................................74
SECTION 6.05. May Hold Securities .............................................................................74
SECTION 6.06. Money Held in Trust .............................................................................74
SECTION 6.07. Compensation and Reimbursement....................................................................74
SECTION 6.08. Disqualification; Conflicting Interests...........................................................76
SECTION 6.09. Corporate Trustee Required; Eligibility...........................................................76
SECTION 6.10. Resignation and Removal; Appointment of Successor.................................................76
SECTION 6.11. Acceptance of Appointment by Successor............................................................78
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.......................................79
Section 6.13. Preferential Collection of Claims Against Company.................................................79
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders.........................................80
SECTION 7.02. Preservation of Information; Communication to Holders.............................................80
SECTION 7.03. Reports by Trustee .............................................................................81
SECTION 7.04. Reports by Company .............................................................................81
</TABLE>
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ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer of Lease
SECTION 8.01. Company May Consolidate, Etc., Only On Certain Terms..............................................82
SECTION 8.02. Successor Substituted.............................................................................83
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of Holders................................................83
SECTION 9 02. Supplemental Indentures with Consent of Holders...................................................84
SECTION 9.03. Execution of Supplemental Indentures..............................................................85
SECTION 9.04. Effect of Supplemental Indentures.................................................................86
SECTION 9.05. Conformity with Trust Indenture Act...............................................................86
SECTION 9.06. Reference in Securities to Supplemental Indentures................................................86
SECTION 9.07. Notice of Supplemental Indentures.................................................................86
SECTION 9.08. Waiver of Certain Covenants.......................................................................86
SECTION 9.09. Payment for Consent .............................................................................87
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal.............................................................................87
SECTION 10.02. Limitation on Liens .............................................................................87
SECTION 10.03. Limitation on Sale and Leaseback Transactions....................................................90
SECTION 10.04. Compliance Certificate...........................................................................90
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption .............................................................................91
SECTION 11.02. Applicability of Article.........................................................................91
SECTION 11.03. Election to Redeem; Notice to Trustee............................................................91
</TABLE>
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SECTION 11.04. Selection by Trustee of Securities to Be Redeemed................................................91
SECTION 11.05. Notice of Redemption.............................................................................92
SECTION 11.06. Deposit of Redemption Price......................................................................93
SECTION 11.07. Securities Payable on Redemption Date............................................................93
SECTION 11.08. Securities Redeemed in Part......................................................................94
</TABLE>
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<PAGE> 7
INDENTURE, dated as of July 22, 1997 between P.H. GLATFELTER
COMPANY, a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (herein called the "Company"), having its principal
office at 228 South Main Street, Spring Grove, Pennsylvania 17362, and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the creation of an issue of 6 7/8% Notes due 2007
(the "Series A Securities") and 6 7/8% Notes due 2007 (the "Series B Securities"
and, together with the Series A Securities, the "Securities"), of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof and intending to be legally bound hereby,
it is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Securities as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) each of the terms defined in this Article has the meaning
assigned to it in this Article and includes the plural as well as the singular;
(b) each of the other terms used herein which is defined in
the Trust Indenture Act or by rules and regulations of the Commission under the
Trust Indenture Act, either directly or by reference therein, has the meaning
assigned to it therein; each of the following TIA terms used in this Indenture
has the following meaning:
"indenture securities" means the Securities;
"indenture security holder" means a Holder;
<PAGE> 8
"indenture to be qualified" means this Indenture; and
"indenture trustee" or "institutional trustee" means
the Trustee;
(c) any gender used in this Indenture shall be deemed and
construed to include correlative words of the masculine, feminine or neuter
gender;
(d) each of the accounting terms not otherwise defined herein
has the meanings assigned to it in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(e) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument; and the words "herein",
"hereof" and "hereunder" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(f) "or" is not exclusive; and
(g) "including" means including, without limitation.
Certain terms, used principally in Article VI, are defined in that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Interest" means additional interest on the
Securities which the Company agrees to pay to the Holders in accordance with
Section 4 of the Registration Rights Agreement.
"Adjusted Treasury Rate" means, with respect to any Redemption
Date, the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of the principal amount) equal to the
Comparable Treasury Price for such Redemption Date, plus 0.15%.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or
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<PAGE> 9
under direct or indirect common control with such specified Person. For the
purposes of this definition, "control", when used with respect to any specified
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" have
meanings correlative to the foregoing.
"Agent Member" means any member of, or Agent Member in, the
Depositary.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee appointed by that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution such action may be taken by any committee,
officer or employee of the Company authorized to take such action by a Board
Resolution.
"Business Day" means any day other than a Saturday, Sunday or
a day on which banking institutions generally in New York City are authorized or
obligated by law or executive order to close.
"Capitalized Lease Obligation" means obligations under a lease
that are required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of
such obligations determined in accordance with generally accepted accounting
principles.
"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 this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
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<PAGE> 10
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary and delivered to the Trustee.
"Comparable Treasury Issue" means the United States Treasury
security selected by a Quotation Agent as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the remaining
term of such Securities.
"Comparable Treasury Price" means, with respect to any
Redemption Date, (A) the average of the Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations, or (B) if the Trustee obtains three or fewer such
Reference Treasury Dealer Quotations, the average of all such Reference Treasury
Dealer Quotations.
"Consolidated Net Tangible Assets" means, at the date of
determination, the aggregate amount of assets (less applicable reserves and
other properly deductible items) after deducting therefrom (a) total current
liabilities (excluding debt or any guaranty thereof due within 12 months) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other like intangibles, all as set forth on the then most recent
consolidated balance sheet of the Company and its consolidated Subsidiaries
computed in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee in
The City of New York, New York at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at 101 Barclay Street, Floor 21 West, New York, New York
10286; and such other office as the Trustee may designate from time to time.
"Corporation" includes corporations, associations, companies
(including joint stock companies and limited liability companies) and business
trusts.
"Defaulted Interest" has the meaning specified in Section
3.07.
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<PAGE> 11
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company or another Person designated as
Depositary by the Company, which must be a clearing agency registered under the
Exchange Act.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means any exchange pursuant to the
Registration Rights Agreement of Series A Securities for a like principal amount
of Series B Securities.
"Financing Lien" has the meaning specified in Section 10.02.
"Global Security" has the meaning specified in Section 3.01.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" of any Person means, at any date, any of the
following (without duplication): (a) all obligations unconditional or
contingent, of such Person for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments or letters of credit; (b) all obligations of
such Person to pay the deferred purchase price of property or services, except
accounts payable and accrued liabilities, in each case, arising in the ordinary
course of business; (c) Capitalized Lease Obligations of such Person; (d)
reimbursement obligations of such Person with respect to letters of credit; (e)
all Indebtedness of others secured by a lien on any asset of such Person,
whether or not such Indebtedness is assumed or guaranteed by such Person; and
(f) all Indebtedness of others guaranteed by such Person; and the amount thereof
shall be the outstanding principal balance of any such unconditional obligations
described in clauses (a) through (f) and the maximum liability of any such
conditional obligations at such date.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
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<PAGE> 12
"Initial Purchasers" means Bear, Stearns & Co. Inc. and BT
Securities Corporation.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"interest", when used with respect to any Security, means the
amount of all interest accruing on such Security, including all Additional
Interest.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means the original date of issuance of the
Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-U.S. Person" means a person who is not a U.S. person, as
defined in Regulation S.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, a Vice President or an Assistant Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Offshore Global Security" has the meaning set forth in
Section 3.01.
"Offshore Physical Security" has the meaning set forth
in Section 3.01.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee of
or counsel for the Company.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
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<PAGE> 13
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.06
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) and/or interest on any Securities on
behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, association, trust, estate, unincorporated organization or government
or any agency or political subdivision thereof.
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<PAGE> 14
"Physical Security", has the meaning set forth in Section
3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security, and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Primary Treasury Dealer" means a primary U.S. Government
securities dealer in New York City.
"Private Placement Legend" means the legend initially set
forth on the Securities in the form set forth in Section 2.02(a).
"Property" has the meaning specified in Section 10.02.
"Purchase Agreement" means the Purchase Agreement dated July
17, 1997 among the Company and the Initial Purchasers.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A.
"Quotation Agent" means one of the Reference Treasury Dealers
appointed by the Company.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means, as of any date of determination, an amount equal to the
greater of (i) 100% of the principal amount of the Securities or (ii) as
determined by the Quotation Agent, the sum of the present value of the remaining
scheduled payments of principal and interest thereon discounted to the
Redemption Date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Adjusted Treasury Rate.
"Reference Treasury Dealer" means (i) each of Bear, Stearns &
Co. Inc. and BT Securities Corporation and their respective successors;
provided, however, that if any of the foregoing shall cease to be a Primary
Treasury Dealer, the
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<PAGE> 15
Company shall substitute therefor another Primary Treasury Dealer; and (ii) any
other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any Redemption Date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding such Redemption Date.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of July 22, 1997 among the Company and the Initial
Purchasers, as the same may be amended or supplemented or otherwise modified
from time to time in accordance with the terms thereof.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the January 1 and July 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Security" has the meaning specified in Section
2.06.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" has the meaning specified in
Section 10.03.
"Securities" has the meaning stated in the first recital of
this Indenture that are authenticated and delivered under this Indenture. For
all purposes of this Indenture, the term "Securities" shall include any Series B
Securities to be
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issued and exchanged for any Series A Securities pursuant to the Registration
Rights Agreement and for purposes of this Indenture, all Series A Securities and
Series B Securities shall vote together as one series of Securities under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.07(a)(i).
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means any Corporation or other Person the
outstanding securities or interests of which having ordinary voting power to
elect a majority of the board of directors or similar governing body of such
Corporation or other Person (whether or not any other class of securities has or
might have voting power by reason of the happening of a contingency) are at any
time owned or controlled directly or indirectly by the Company or one or more
Subsidiaries or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include such successor Person.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this instrument was executed, except
as provided in Section 9.05.
"U.S. Global Security" has the meaning set forth in Section
3.01.
"U.S. Government Obligations" means direct obligations of the
United States of America, backed by its full faith and credit.
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"U.S. Physical Security" has the meaning set forth in Section
3.01.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion whether such covenant or condition
has been complied with; and
(d) a statement whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such
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Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of any officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such officer's
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing, and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such
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<PAGE> 19
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 1.05. Notices, Etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Trustee Administration; or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument (Attention: Treasurer) or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.06. Notices to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, or any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice
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with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made by or with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. Compliance with Trust Indenture Act. Upon the
effectiveness of the Exchange Registration Statement or the effectiveness of a
Shelf Registration Statement (each, as defined in Registration Rights
Agreement), this Indenture will be subject to the provisions of the Trust
Indenture Act that are required to be part of this Indenture and if any
provision of this Indenture limits, qualifies or conflicts with a provision
which is required to be included in this Indenture by the Trust Indenture Act,
the required provision shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and
agreements in this Indenture by the Company or the Trustee shall bind their
respective successors and assigns and inure to the benefit of their permitted
successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities 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.
SECTION 1.11. Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Security Registrar, and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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SECTION 1.12. Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to the conflict of law provisions thereof.
SECTION 1.13. Legal Holidays. Except as may be otherwise
specified with respect to any particular Securities, in any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of interest or principal (and premium,
if any) need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date, Redemption Date or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Stated Maturity, as the case may be.
SECTION 1.14. Liability Solely Corporate. No recourse shall be
had for the payment of the principal of (or premium, if any) or the interest on
any Securities, or any part thereof, or of the indebtedness represented thereby,
or upon any obligation, covenant or agreement of this Indenture, against any
incorporator, or against any stockholder, officer or director, as such, past,
present or future, of the Company (or any incorporator, stockholder, officer or
director of any predecessor or successor corporation), either directly or
through the Company (or any such predecessor or successor corporation), whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly agreed and understood
that this Indenture and the Securities are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or be incurred by, any
such incorporator, stockholder, officer or director, past, present or future, of
the Company (or any incorporator, stockholder, officer or director of any such
predecessor or successor corporation), either directly or indirectly through the
Company or any such predecessor or successor corporation, because of the
indebtedness hereby authorized or under or by reason of any of the obligations,
covenants, promises or agreements contained in this Indenture or in any of the
Securities or to be implied herefrom or therefrom; and that any such personal
liability is hereby expressly waived and released as a condition of, and as part
of the consideration for, the execution of this Indenture and the issue of
Securities.
SECTION 1.15. Counterparts. This Indenture may be executed in
counterparts (including executed counterparts delivered and exchanged by
facsimile transmission), each of which
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so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities shall be in
substantially the forms set forth, or referenced, in this Article, in each case
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth in this Article with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture.
The definitive Securities may be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 2.02. Form of Face of Security. (a) The form of the
face of the Series A Securities shall be substantially as follows:
THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY
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MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(A) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES
ACT, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT OR (D) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE.
Each Holder hereof, by its acceptance hereof, will be
deemed to have agreed to be bound by the provisions of the
Registration Rights Agreement.
P.H. GLATFELTER COMPANY
6 7/8% NOTES DUE 2007
SERIES A
CUSIP No. ____________
No. __________________ $______________
P.H. GLATFELTER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania (the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________ or
registered assigns, the principal sum of ___________ United States dollars on
July 15, 2007, at the office or agency of the Company referred to below, and to
pay interest thereon on January 15 and July 15 of each year, commencing on
January 15, 1998, accruing from the later of July 22, 1997 and the most recent
date to which interest has been paid or duly provided for, at the rate of 6 7/8%
per annum, until
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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. In addition, the Company
may be obligated to pay Additional Interest on the outstanding principal amount
hereof in accordance with certain provisions of the Registration Rights
Agreement.
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 Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be January 1 or July 1
(whether or not a Business Day), as the case may be, next 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 Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the person in whose name this Security (or one or more Predecessor
Securities) 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 of Securities not less than 10 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 the Depositary or any clearing agency
through which clearing of trades of the Securities regularly takes place or any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by the Depositary or any such clearing agency or exchange,
all as more fully provided in such Indenture.
If this Security is a Global Security, all payments in respect
of this Security will be made to the Depositary or its nominee in immediately
available funds in accordance with customary procedures established from time to
time by the Depositary. If this Security is a Global Security and a Restricted
Security, reference is made to the restriction on ownership of beneficial
interests herein contained in the Indenture. If this Security is not a Global
Security, payment of the principal of (and premium, if any), and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed
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<PAGE> 25
to the address of the person entitled thereto as such address shall appear on
the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, P.H. Glatfelter Company has caused
this instrument to be duly executed.
P.H. GLATFELTER COMPANY
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
(b) The form of the face of the Series B Securities
shall be substantially as follows:
P.H. GLATFELTER COMPANY
6 7/8% NOTES DUE 2007
SERIES B
CUSIP No. ___________
No. _________________ $____________
P.H. GLATFELTER COMPANY, a corporation duly organized and
existing under the laws of the Commonwealth of Pennsylvania
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<PAGE> 26
(the "Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________ or registered assigns, the principal sum of ____________ United
States Dollars on July 15, 2007, at the office or agency of the Company referred
to below, and to pay interest thereon on January 15 and July 15 of each year,
commencing on January 15, 1998, accruing from the later of July 22, 1997 and the
most recent date to which interest has been paid or duly provided for on this
Series B Security or on the Series A Securities exchanged for this Series B
Security, at the rate of 6 7/8% per annum, 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. In addition, the Company may be obligated to pay
Additional Interest on the outstanding principal amount hereof in accordance
with certain provisions of the Registration Rights Agreement.
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 Security (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be January 1 and July 1
(whether or not a Business Day), as the case may be, next 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 Securities, to the extent lawful, shall forthwith
cease to be payable to the Holder on such Regular Record Date, and may be paid
to the person in whose name this Security (or one or more Predecessor
Securities) 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 of Securities not less than 10 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 the Depositary or any clearing agency
through which clearing of trades of the Securities regularly takes place or any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by the Depositary or any such clearing agency or exchange,
all as more fully provided in such Indenture.
If this Security is a Global Security, all payments in respect
of this Security will be made to the Depositary or its nominee in immediately
available funds in accordance with customary procedures established from time to
time by the Depositary. If this Security is not a Global Security, payment of
the principal of (and premium, if any), and interest on this Security will be
made at the office or agency of the Company
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<PAGE> 27
maintained for that purpose in the Borough of Manhattan in The City of New York,
or at such other office or agency of the Company as may be maintained for such
purpose, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts; provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the person entitled thereto as such address shall
appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, P.H. Glatfelter Company has caused this
instrument to be duly executed.
P.H. GLATFELTER COMPANY
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
SECTION 2.03. Form of Reverse of Security. (a) The form of the
reverse of the Series A Securities shall be substantially as follows:
This Security is one of a duly authorized issue of Securities
of the Company designated as its 6 7/8% Notes due 2007 (the "Series A
Securities"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $150,000,000, which may be issued under
an Indenture (herein called the "Indenture") dated as of July 22, 1997 between
the Company and The Bank of New York, as trustee
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(herein called the "Trustee, which term includes any successor Trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties, obligations and immunities thereunder of the Company, the Trustee and
the Holders of the Securities, and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
Each of the capitalized terms used in this Series A Security
which is defined in the Indenture and not otherwise defined herein shall have
the meaning assigned to it in the Indenture.
No reference herein to the Indenture and no provisions of this
Series A Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of (and
premium, if any), and interest on this Security at the times, place, and rate,
and in the coin or currency, herein prescribed.
The Securities are subject to redemption upon not less than 30
nor more than 60 days' notice by mail, at any time, as a whole or in part, at
the election of the Company at the Redemption Price as determined in accordance
with the Indenture, plus accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as of the close of business on the relevant Regular
Record Date referred to on the face hereof, all as provided in the Indenture.
The Series A Securities do not have the benefit of any sinking
fund obligation.
In the event of redemption of this Series A Security in part
only, a new Series A Security or Securities for the unredeemed portion hereof
will be issued in the name of the Holder, or the Person designated by such
Holder, hereof upon cancellation hereof.
Pursuant to the Registration Rights Agreement, the Company
will be obligated to consummate an exchange offer pursuant to which the Holder
of this Security shall have the right to exchange this Security for 6 7/8% Notes
due 2007, Series B, of the Company (the "Series B Securities"), which have been
registered (or, with respect to certain Series B Securities, which will be
entitled to such registration, as set forth in the Registration Rights
Agreement) under the Securities Act, in like
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principal amount and having identical terms as the Series A Securities. The
Holders of Series A Securities 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 Agreement. The Series A Securities and the Series B
Securities are together referred to herein as the "Securities".
The Indenture contains provisions (which provisions apply to
this Series A Security) for defeasance at any time of (a) the entire
indebtedness of the Company on this Series A Security and (b) certain
restrictive covenants and related Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
The Company and the Trustee may, without the consent of the
Holders of any Outstanding Securities, amend, waive or supplement the Indenture
or the Securities for certain specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies, maintaining the qualification of
the Indenture under the Trust Indenture Act of 1939, as amended, and making any
change that does not adversely affect the rights of any Holder. Other amendments
and modifications of the Indenture or the Securities may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, subject to certain
exceptions requiring the consent of the Holders of the particular Securities to
be affected. Any such consent or waiver by or on behalf of the Holder of this
Series A Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Series A Security and of any Series A Security issued
upon the registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Series A
Security.
All Series A Securities and Series B Securities shall vote
together as one series of Securities under the Indenture.
The Series A Securities are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series A Securities are exchangeable for a
like aggregate principal amount of Series A Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
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<PAGE> 30
If this Series A Security is in certificated form, then as
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Series A Security is registrable on the Security Register
of the Company, upon surrender of this Series A Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Series A Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Series A Security is a Restricted Security in
certificated form, then as provided in the Indenture and subject to certain
limitations therein set forth, the Holder, provided it is a Qualified
Institutional Buyer, may exchange this Series A Security for a book-entry
security by instructing the Trustee to arrange for such Series A Security to be
represented by a beneficial interest in a Global Security in accordance with the
customary procedures of the Depositary.
If this Series A Security is a Global Security, it is
exchangeable for Series A Securities in certificated form if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary or
the Depositary ceases to be a "clearing agency" registered under the Securities
Exchange Act of 1934, as amended, and, in each case, a successor Depositary is
not appointed by the Company within 90 days of such notice or such cessation, as
the case may be, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be exchangeable or (iii) there shall have
occurred and be continuing an Event of Default with respect to any Securities
represented by the Global Security. Upon the occurrence in respect of any Global
Security of any one or more of the conditions specified in clauses (i), (ii) and
(iii) of the preceding sentence such Global Security may be exchanged for
Securities not bearing the legend specified in Section 2.05 and registered in
the names of such Persons as may be specified by the Depositary (including
Persons other than the Depositary). In addition, in accordance with the
provisions of the Indenture and subject to certain limitations therein set
forth, a beneficial owner of a beneficial interest in a Global Security may
request a Series A Security in certificated form, in exchange in whole or in
part, as the case may be, for such beneficial owner's interest in the Global
Security. In any such instance, an owner of a
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<PAGE> 31
beneficial interest in a Global Security will be entitled to physical delivery
in certificated form of Series A Securities in authorized denominations equal in
principal amount to such beneficial interest and to have such Series A
Securities registered in its name.
No service charge shall be made for any registration of
transfer or exchange or redemption of Series A Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The Company may but shall not be required (i) to issue,
register the transfer of or exchange Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 11.03 of the
Indenture and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Prior to and at the time of due presentment of this Series A
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name this Series A
Security is registered as the owner hereof for all purposes, whether or not this
Series A Security shall be overdue, and neither the Company, the Trustee nor any
agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on this Security, or any part thereof, or
of the indebtedness represented hereby, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Security is solely a corporate obligation, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or any
such predecessor or successor corporation, under or by reason of any of the
obligations, covenants, promises or agreements contained in this Security or to
be implied herefrom; and that any such
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<PAGE> 32
personal liability is hereby expressly waived and released as a condition of,
and as part of the consideration for, the issue of this Security.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflict of
law provisions thereof.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)___________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code) and
irrevocably appoint ___________________________________________________________
_______________________________________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of the declaration by the
Commission of the effectiveness of a registration statement under the Securities
Act of 1933, as amended (the "Securities Act"), covering resales of this
Security (which effectiveness shall not have been suspended or terminated at the
date of the transfer) and (ii) the later of July 22, 1998, or the date one year
after the later of the date of issuance appearing on the face of this Security
and the last date on which the Company or an affiliate of the Company was the
owner of this Security (or any Predecessor Security), the undersigned confirms
that it has not utilized any general solicitation or general advertising in
connection with the transfer and that:
[Check one]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act provided
by Rule 144A thereunder.
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<PAGE> 33
or
[ ] (b) this Security is being transferred other than in
accordance with (a) above and documents, including a
transferee certificate substantially in the form
attached hereto, are being furnished which comply with
the conditions of transfer set forth in this Security
and the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b) above, if
the appropriate document is not attached or otherwise furnished to the Trustee,
the Trustee or Security Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 of the Indenture shall have been satisfied.
_______________________________________________________________________________
Date: _________________ Your signature:_________________
(Sign exactly as your name
appears on the other side of
this Security)
By:________________________
Notice: To be executed by
an executive officer
Signature Guarantee: _________________
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Security
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is
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<PAGE> 34
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated: ________________ By: _________________________
Notice: To be executed by
an executive officer
[The Transferee Certificates (Exhibits A and B to the
Indenture) will be attached to the Series A Security]
(b) The form of the reverse of the Series B Securities shall
be substantially as follows:
This Security is one of a duly authorized issue of Securities
of the Company designated as its 6 7/8% Notes due 2007, Series B (the "Series B
Securities"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $150,000,000 which may be issued under
an Indenture (herein called the "Indenture") dated as of July 22, 1997, between
the Company and The Bank of New York, as trustee (herein called the "Trustee,"
which term includes any successor Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitation of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Each of the capitalized terms used in this Series B Security
which is defined in the Indenture and not otherwise defined herein shall have
the meaning assigned to it in the Indenture.
No reference herein to the Indenture and no provision of this
Series B Security or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Security at the time, place, and rate, and
in the coin or currency, herein prescribed.
The Series B Securities were issued pursuant to an exchange
offer pursuant to which 6 7/8% Notes due 2007 of the
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<PAGE> 35
Company (the "Series A Securities"), in like principal amount and having
substantially identical terms as the Series B Securities, were exchanged for the
Series B Securities. The Series A Securities and the Series B Securities are
together referred to herein as the "Securities".
The Securities are subject to redemption upon not less than 30
nor more than 60 days' notice by mail, at any time, as a whole or in part, at
the election of the Company at the Redemption Price, plus accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as of the close of business on
the relevant Regular Record Date referred to on the face hereof, all as provided
in the Indenture.
The Series B Securities do not have the benefit of any sinking
fund obligation.
In the event of redemption of this Series B Security in part
only, a new Series B Security or Securities for the unredeemed portion hereof
will be issued in the name of the Holder, or the Person designated by such
Holder, hereof upon cancellation hereof.
The Indenture contains provisions (which provisions apply to
this Series B Security) for defeasance at any time of (a) the entire
indebtedness of the Company on this Series B Security and (b) certain
restrictive covenants and related Events of Default, in each case upon
compliance by the Company with certain conditions set forth therein.
The Company and the Trustee may, without the consent of the
Holders of any Outstanding Securities, amend, waive or supplement the Indenture
or the Securities for certain specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies, maintaining the qualification of
the Indenture under the Trust Indenture Act of 1939, as amended, and making any
change that does not adversely affect the rights of any Holder. Other amendments
and modifications of the Indenture or the Securities may be made by the Company
and the Trustee with the consent of the Holders of not less than a majority of
the aggregate principal amount of the Outstanding Securities, subject to certain
exceptions requiring the consent of the Holders of the particular Securities to
be affected. Any such consent or waiver by or on behalf of the Holder of this
Series B Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Series B Security issued upon the
registration of transfer hereof or in exchange hereof or in
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<PAGE> 36
lieu hereof whether or not notation of such consent or waiver is made upon this
Series B Security.
All Series A Securities and Series B Securities shall vote
together as one series of Securities under the Indenture.
The Series B Securities are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, the Series B Securities are exchangeable for a
like aggregate principal amount of Series B Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
If this Series B Security is in certificated form, then as
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Series B Security is registrable on the Security Register
of the Company, upon surrender of this Series B Security for registration of
transfer at the office or agency of the Company maintained for such purpose in
The City of New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof of his attorney duly authorized in
writing, and thereupon one or more new Series B Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
If this Series B Security is a Global Security, it is
exchangeable for Series B Securities in certificated form if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary or
the Depositary ceases to be a "clearing agency" registered under the Securities
Exchange Act of 1934, as amended, and, in each case, a successor Depositary is
not appointed by the Company within 90 days of such notice or such cessation, as
the ease may be, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be exchangeable or (iii) there shall have
occurred and be continuing an Event of Default with respect to any Securities
represented by the Global Security. Upon the occurrence in respect of any Global
Security of any one or more of the conditions specified in clauses (i), (ii) and
(iii) of the preceding sentence such Global Security may be exchanged for
Securities not bearing the legend specified in Section 2.05 and registered in
the names of such Persons as may be specified by the Depositary (including
Persons other than the Depositary). In addition, in accordance with the
provisions of the Indenture and
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<PAGE> 37
subject to certain limitations therein set forth, a beneficial owner of a
beneficial interest in a Global Security may request a Series B Security in
certificated form, in exchange in whole or in part, as the case may be, for such
beneficial owner's interest in the Global Security. In any such instance, an
owner of a beneficial interest in a Global Security will be entitled to physical
delivery in certificated form of Series B Securities in authorized denominations
equal in principal amount of such beneficial interest and to have such Series B
Securities registered in its name.
No service charge shall be made for any registration of
transfer or exchange or redemption of Series B Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
The Company may but shall not be required (i) to issue,
register the transfer of or exchange Securities during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Section 11.03 of the
Indenture and ending at the close of business on the day of such mailing, or
(ii) to register the transfer of or exchange any Security so selected for
redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Prior to and at the time of due presentment of this Series B
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name this Series B
Security is registered as the owner hereof for all purposes, whether or not this
Series B Security shall be overdue, and neither the Company, the Trustee nor any
agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of
(or premium, if any) or the interest on this Security, or any part thereof, or
of the indebtedness represented hereby, against any incorporator, or against any
stockholder, officer or director, as such, past, present or future, of the
Company (or any incorporator, stockholder, officer or director of any
predecessor or successor corporation), either directly or through the Company
(or any such predecessor or successor corporation), whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that this
Security is solely a corporate obligation, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer
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<PAGE> 38
or director of any such predecessor or successor corporation), either directly
or indirectly through the Company or any such predecessor or successor
corporation, under or by reason of any of the obligations, covenants, promises
or agreements contained in this Security or to be implied herefrom; and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the issue of this Security.
This Security shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflict of
law provisions thereof.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
_______________________________________________________________________________
(Insert assignee's social security or tax ID number)___________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code) and
irrevocably appoint
_______________________________________________________________________________
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for such agent.
_______________________________________________________________________________
Date:___________________ Your signature:__________________
(Sign exactly as your name
appears on the other side of
this Security)
By:__________________________
Notice: To be executed by
an executive officer
Signature Guarantee: ___________________
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<PAGE> 39
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Security Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Security
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
SECTION 2.04. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein and referred to
in the within-mentioned Indenture.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:
THE BANK OF NEW YORK, as Trustee
By:_______________________________________
Authorized Signatory
SECTION 2.05. Form of Legend for Global Securities. Any Global
Security authenticated and delivered hereunder shall, in addition to the
provisions contained in Sections 2.02 and 2.03, bear a legend in substantially
the following form or such similar form as may be required by the Depositary:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY 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
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) 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 (55 Water Street, New York, New York), a
New York corporation, to the
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<PAGE> 40
issuer or to 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 requested by an authorized representative
of The Depository Trust Company (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized representative
of The Depository Trust Company), 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."
SECTION 2.06. Form of Legend on Restricted Securities. During the
period beginning on the later of the Issue Date and the last date on which the
Company or any Affiliate of the Company was the owner of a Series A Security (or
any Predecessor Security) and ending on the date one year from any such date (or
such longer period as may be required under the Securities Act or applicable
state securities laws in the opinion of counsel for the Company), any Series A
Security issued or owned during the period set forth above, as the case may be,
and any Security issued upon registration of transfer of, or in exchange for, or
in lieu of, such Series A Security, shall be deemed a "Restricted Security" and
shall be subject to the restrictions on transfer provided in the legend set
forth on the face of the form of Series A Security in Section 2.02(a); provided,
however, that the term "Restricted Security" shall not include (a) any Series A
Security which is issued upon transfer of, or in exchange for, any Security
which is not a Restricted Security or (b) any Series A Security as to which such
restrictions on transfer have been terminated in accordance with Section 3.05,
(c) any Series B Security issued pursuant to an Exchange Offer or (d) any Series
B Security covered by a Shelf Registration Statement (as defined in the
Registration Rights Agreement). Any Restricted Security shall bear the legend
set forth on the face of the Security pursuant to Section 2.02(a).
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is
limited to $150,000,000 aggregate principal amount of Series A Securities and
$150,000,000 aggregate principal amount of Series B Securities, provided the
Series B Securities shall initially be authenticated and delivered only in
exchange for Series A Securities, except for Securities authenticated and
delivered upon registration of
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<PAGE> 41
transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 3.03, 3.04, 3.05, 3.06 or 9.06.
The Series A Securities shall be known and designated as the "6 7/8%
Notes due 2007" of the Company. The Series B Securities shall be known and
designated as the "6 7/8% Notes due 2007, Series B" of the Company. The final
Stated Maturity of the Series A Securities and the Series B Securities shall be
July 15, 2007. The Series A Securities shall bear interest at the rate of 6 7/8%
per annum, and Additional Interest, if any in accordance with the provisions of
the Registration Rights Agreement, from the later of July 22, 1997 and the most
recent date to which interest has been paid, as the case may be; provided that,
if there is no existing Event of Default in the payment of interest and if a
Series A Security is authenticated between a Regular Record Date and the next
succeeding Interest Payment Date, interest on such Series A Security shall
accrue from such Interest Payment Date. The Series B Securities shall bear
interest at the rate of 6 7/8% per annum, and Additional Interest, if any in
accordance with the provisions of the Registration Rights Agreement, from the
later of July 22, 1997 and the most recent date to which interest has been paid
on the Series B Securities or on the Series A Securities exchanged for the
Series B Securities, as the case may be; provided that, if there is no existing
Event of Default in the payment of interest and if a Series B Security is
authenticated between a Regular Record Date and the next succeeding Interest
Payment Date, interest on such Series B Security shall accrue from such Interest
Payment Date. Interest on the Series A Securities and on the Series B Securities
is payable semiannually on January 15 and July 15 in each year, commencing
January 15, 1998, until the principal thereof is paid or duly provided for.
Interest on any overdue principal, interest (to the extent lawful) or premium,
if any, shall be payable on demand.
The Company shall notify the Trustee within three Business Days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid in accordance with the Registration Rights
Agreement.
Series B Securities may be issued only in exchange for a like
principal amount of Series A Securities pursuant to an Exchange Offer.
Series A Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of a single permanent global security (the "U.S.
Global Security") and Series A Securities offered and sold in reliance on
Regulation S shall be issued initially in the form of a single permanent global
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<PAGE> 42
security (the "Offshore Global Security" and, together with the U.S. Global
Security, the "Global Securities"), each substantially in the form set forth in
Sections 2.02(a) and 2.03(a) hereof, deposited with the Trustee, as custodian of
the Depositary, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of any Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Series A Securities which are offered and sold to Institutional
Accredited Investors which are not QIBs (excluding Non-U.S. Persons) shall be
issued in the form of permanent certificated Securities in registered form (the
"U.S. Physical Securities"). Securities issued pursuant to Section 3.13 in
exchange for interests in the U.S. Global Security shall be in the form of U.S.
Physical Securities. Securities issued in exchange for interests in the Offshore
Global Security pursuant to Section 3.13 shall be in the form of permanent
certificated Securities in registered form (the "Offshore Physical Securities"
and, together with the U.S. Physical Securities, the "Physical Securities").
Physical Securities shall be in substantially the form set forth in
Sections 2.02(a) and 2.03(a) hereof.
The principal of (and premium, if any), and interest on Global
Securities shall be payable to the Depositary or its nominee, as the case may
be, as the sole registered owner and the sole holder of the Global Securities
represented thereby. The principal of (and premium, if any), and interest on
Securities in certificated form shall be payable at the office or agency of the
Company maintained for such purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose; provided,
however, that at the option of the Company interest may be paid by check mailed
to the addresses of the persons entitled thereto as such addresses shall appear
on the Security Register.
SECTION 3.02. Denominations. The Securities shall be issuable only in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof;
provided, however, that the Series A Securities shall be issuable only in
denominations of $100,000 and any integral multiple of $1,000 in excess thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by any two of its Chairman
of the Board, its President,
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<PAGE> 43
its Vice Presidents and its Treasurer. The signature of any of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and make available for delivery such
Securities as provided in this Indenture. On Company Order, the Trustee or an
authenticating agent shall authenticate for original issue Series B Securities
in an aggregate principal amount not to exceed $150,000,000; provided that such
Series B Securities shall be issuable only upon the valid surrender for
cancellation of Series A Securities of a like aggregate principal amount in
accordance with an Exchange Offer pursuant to the Registration Rights Agreement.
In each case, the Trustee shall be entitled to receive an Officers' Certificate
and an Opinion of Counsel of the Company that it may reasonably request in
connection with such authentication of Securities. Such order shall specify the
amount of Securities to be authenticated and the date on which the original
issue of Series A Securities or Series B Securities is to be authenticated. The
aggregate principal amount of Securities outstanding at any time may not exceed
$150,000,000 except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 3.06.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and made available for delivery hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and made available for delivery
hereunder
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but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.09 together
with a written statement (which need not comply with Section 1.02 and need not
be accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
In case the Company, pursuant to Article VIII, shall be consolidated,
amalgamated, merged with or into any other person or shall convey, transfer or
lease substantially all of its properties and assets to any person, and the
successor person resulting from such consolidation, amalgamation or surviving
such merger, or into which the Company shall have been merged, or the person
which shall have received a conveyance, transfer or lease as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article VIII, any of the Securities authenticated or made available for delivery
prior to such consolidation, amalgamation, merger, conveyance, transfer or lease
may, from time to time, at the request of the successor person, be exchanged for
other Securities executed in the name of the successor person with such changes
in terminology and form as may be appropriate, but otherwise in substance of
like tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the successor person, shall
authenticate and deliver replacement Securities as specified in such request for
the purpose of such exchange. If such Securities shall at any time be
authenticated and made available for delivery in any new name of a successor
person pursuant to this Section 3.03 in exchange or substitution for or upon
registration of transfer of any Securities, such successor person, at the option
of the Holders but without expense to them, shall provide for the exchange of
all Securities at the time Outstanding for Securities authenticated and
delivered in such new name.
The Trustee may appoint an authenticating agent to authenticate
Securities on behalf of the Trustee if directed to do so by a Company Order.
Each reference in this Indenture to authentication by the Trustee includes
authentication by each such agent. An authenticating agent has the same rights
as any Security Registrar or Paying Agent to deal with the Company and its
Affiliates.
If any of the Securities are to be issued in the form of one or more
Global Securities, then the Company shall execute and the Trustee shall
authenticate and make available for
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delivery one or more Global Securities that (i) shall represent and shall be in
minimum denominations of $100,000, in the case of the Series A Securities, and
$1,000, in the case of the Series B Securities, or, in each case, integral
multiples of S1,000 in excess thereof, (ii) shall be registered in the name of
the Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depository's instructions and (iv) shall bear the legend in
substantially the form set forth in Section 2.05.
SECTION 3.04. Temporary Securities. Pending the preparation of
definitive Securities and with respect to Global Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten or otherwise produced, in any authorized denomination, substantially
of the tenor of the definitive Securities in lieu of which they are issued and
with such appropriate insertions, omissions substitutions and other variations
as the officers executing such Securities may determine, as evidenced by their
execution of such Securities. Such temporary Securities may be in the form of
Global Securities.
If temporary Securities are issued (other than Global Securities), the
Company will cause definitive Securities to be prepared without unreasonable
delay. After the preparation of definitive Securities, the temporary Securities
shall be exchangeable for definitive Securities of like tenor upon surrender of
the temporary Securities at the office or agency of the Company designated for
such purpose pursuant to Section 3.14, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like principal amount of definitive Securities of like
tenor and of any authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
SECTION 3.05. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided at the Corporate Trust Office.
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Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated for such purpose pursuant to Section
3.14, the Company shall execute and the Trustee shall authenticate and make
available for delivery (in the name of the designated transferee or transferees)
one or more new Securities, of any authorized denominations and of a like
aggregate principal amount and tenor and bearing a number not contemporaneously
outstanding.
Subject to the provisions of Sections 3.12 and 3.13, at the option of
the Holder, Securities may be exchanged for other Securities, of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Securities to be exchanged at the office or agency of the Company
designated for such purpose pursuant to Section 3.14. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, the Securities which the
Holder making the exchange is entitled to receive.
If a Series A Security is a U.S. Physical Security, 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 Security for a
book-entry security by instructing the Trustee to arrange for such Series A
Security to be represented by a beneficial interest in a Global Security.
All Securities issued upon any registration of transfer or exchange of
Securities, including any exchange pursuant to an Exchange Offer, shall be the
valid obligations of the Company, evidencing the same debt and entitled to the
same benefits under this Indenture as the Securities surrendered upon such
registration of transfer or exchange and no such transfer or exchange shall
constitute a repayment of any obligation nor create any new obligation, of the
Company.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or such Holder's attorney duly authorized in writing.
Every Restricted Security shall be subject to the restrictions on
transfer provided in the legend required to be set forth on the face of each
Restricted Security pursuant to Section 2.06, Section 2.02(a) and the
restrictions set forth in
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this Section 3.05, and the Holder of each Restricted Security, by such Holder's
acceptance thereof, agrees to be bound by such restrictions on transfer.
The restrictions imposed by this Section 3.05 and Section 2.06 upon
the transferability of any particular Restricted Security shall cease and
terminate (a) in the case of an Offshore Global Security or an Offshore Physical
Security, on the 41st day after the Issue Date or (b) in the case of a U.S.
Global Security or a U.S. Physical Security, on (x) the later of July 22, 1998
or one year after the later of the Issue Date or the last date on which the
Company or any Affiliate of the Company was the owner of such Restricted
Security (or any predecessor of such Restricted Security) or (y) (if earlier) if
and when such Restricted Security has been sold pursuant to an effective
registration statement under the Securities Act or, unless the Holder thereof is
an affiliate of the Company within the meaning of Rule 144 (or such successor
provision), transferred pursuant to Rule 144 or Rule 904 under the Securities
Act (or any successor provision). Any Restricted Security as to which such
restrictions on transfer shall have expired in accordance with their terms or
shall have terminated may, upon surrender of such Restricted Security for
exchange to the Trustee or any transfer agent in accordance with the provisions
of this Section 3.05, be exchanged for a new Security, of like series, tenor and
aggregate principal amount, which shall not bear the restrictive legend required
by Section 2.06 and shall thereafter be deemed not to be a Restricted Security
for any purpose under this Indenture. The Company shall inform the Trustee in
writing of the effective date of any registration statement registering any
Restricted Securities under the Securities Act.
No service charge shall be made for any registration of transfer,
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04 or 3.06 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange Securities during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 11.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption, in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
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Notwithstanding any other provision of this Indenture, a Global
Security may not be transferred except as a whole by the Depositary for such
Global Security to a nominee of the Depositary or by a nominee of the Depositary
to the Depositary or another nominee of the Depositary.
Any Holder of the Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book-entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial interest
in the Security shall be required to be reflected in a book entry.
When Securities are presented to the Security Registrar with a request
to register the transfer or to exchange them for an equal principal amount of
Securities of other authorized denominations, the Security Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities at the
Security Registrar's request.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
upon Company Request the Trustee shall authenticate and make available for
delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such Security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon Company Request the Trustee shall
authenticate and make available for delivery, in lieu of any such destroyed,
lost or stolen Security, a new Security, including a Global Security if the
destroyed, lost or stolen Security was a Global Security, of the same series and
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the
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Company in its discretion may, instead of issuing a new Security, pay such
Security in accordance with its terms.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed with respect thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder. A new Security shall have
such legends as appeared on the old Security unless the Company determines
otherwise.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name that
Security (or one or more Predecessor Securities) is registered in the Security
Register at the close of business on the Regular Record Date for such Interest
Payment Date.
Any interest on any Security which is payable but is not punctually
paid or duly provided for on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the
Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the
proposed payment, and
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at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when
deposited to be so held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class, postage prepaid, to each Holder of
Securities at such Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to
the following clause (b).
(b) The Company may make payment of any Defaulted
Interest on the Securities in any other lawful manner not
inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee
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may treat the Person in whose name such Security is registered in the Security
Register as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 3.07) interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary (or its nominee) shall have any rights under this
Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any Global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of beneficial
interest in such Global Security, the operation of customary practices governing
the exercise of the rights of the Depositary (or its nominees) as Holder of such
Global Security.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
redemption or registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and made available for
delivery hereunder which the Company may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be returned to the Company.
SECTION 3.10. Computation of Interest. Interest on the Securities of
each series shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 3.11. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers, and if it does so, the
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Trustee shall use the applicable CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities, and
any such redemption or exchange shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in any CUSIP number. All Series B Securities shall bear identical CUSIP
numbers. The Company shall promptly notify the Trustee in writing of any change
in the CUSIP number of either series of Securities.
SECTION 3.12. Book-Entry Provisions for Global Security. (a) Each
Global Security initially shall (i) be registered in the name of the Depositary
for such Global Security or the nominee of such Depositary, (ii) be delivered to
the Trustee as custodian for such Depositary and (iii) bear legends as set forth
in Section 2.05.
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 3.13. Beneficial owners may
obtain Physical Securities in exchange for their beneficial interests in a
Global Security upon request in accordance with the Depositary's and the
Security Registrar's procedures (x) in the case of the Offshore Global Security,
at any time on or after the 41st day following the Issue Date, and (y) in the
case of the U.S. Global Security, at any time. In addition, Physical Securities
shall be issued in exchange for a Global Security if (i) the Depositary notified
the Company that it is unwilling or unable to continue as Depositary for a
Global Security or the Depositary ceases to be a "clearing agency" registered
under the Exchange Act and, in each case, a successor Depositary is not
appointed by the Company within 90 days of such notice or such cessation, as the
case may be, (ii) the Company executes and delivers to the Trustee a Company
Order that such Global Security shall be so exchangeable or (iii) an Event of
Default has occurred and is continuing with respect to any Securities
represented by a Global Security. Upon the occurrence in respect of any Global
Security of any one or more of the conditions specified in clauses (i), (ii) and
(iii) of the preceding sentence such Global Security may be exchanged for
Securities not bearing the legend specified in Section 2.05 and registered in
the names of such Persons as may be specified by the Depositary (including
Persons other than the Depositary).
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(c) Any beneficial interest in one of the Global Securities
that is transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the
beneficial interest in the U.S. Global Security to beneficial owners pursuant to
subsection (b) of this Section, the Security Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and the Company shall
execute, and the Trustee shall authenticate and make available for delivery, one
or more U.S. Physical Securities of like tenor and amount.
(e) In connection with the transfer of an entire Global
Security to beneficial owners thereof pursuant to subsection (b) of this
Section, such Global Security shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall
authenticate and make available for delivery, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in such
Global Security, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(f) Any U.S. Physical Security delivered in exchange for an
interest in the U.S. Global Security pursuant to subsection (b) or subsection
(d) of this Section shall, except as otherwise provided by paragraph (a)(i)(x)
or paragraph (e) of Section 3.13, bear the Private Placement Legend.
(g) The registered holder of the Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(h) QIBs that are beneficial owners of interests in a Global
Security may receive Physical Securities (which shall bear the Private Placement
Legend if required by Section 2.06) in accordance with the procedures of the
Depositary. In connection with the execution, authentication and delivery of
such Physical Securities, the Security Registrar shall reflect on its books and
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records a decrease in the principal amount of the relevant Global Security equal
to the principal amount of such Physical Securities, and the Company shall
execute and the Trustee shall authenticate and make available for delivery one
or more Physical Securities having an equal aggregate principal amount.
SECTION 3.13. Special Transfer Provisions. Unless and until
(i) such Series A Security is sold under an effective registration statement or
(ii) such Series A Security is exchanged for a Series B Security in connection
with an effective registration statement, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply to each
Series A Security:
(a) Transfers to Non-QIB Institutional Accredited
Investors. The following provisions shall apply with respect
to registration of any proposed transfer of a Restricted
Security to any Institutional Accredited Investor which is not
a QIB (excluding Non-U.S. persons):
(i) The Security Registrar shall register
the transfer of any Series A Security, whether or not
such Security bears the Private Placement Legend, if
(x) the requested transfer is subsequent to a date
which is one year after the later of the Issue Date
and the last date on which the Company or any of its
Affiliates was the owner of such Security or (y) the
proposed transferee has delivered to the Security
Registrar a certificate substantially in the form of
Exhibit A hereto.
(ii) If the proposed transferor is an Agent
Member holding a beneficial interest in the U.S.
Global Security seeking to transfer a U.S. Physical
Security to another person, upon receipt by the
Security Registrar of (x) the documents, if any,
required by paragraph (i) and (y) instructions given
in accordance with the Depositary's and the Security
Registrar's procedures therefor, the Security
Registrar shall reflect on its books and records the
date and a decrease in the principal amount of the
U.S. Global Security in an amount equal to the
principal amount of the beneficial interest in the
U.S. Global Security to be transferred, and the
Company shall execute, and the Trustee shall
authenticate and make available for delivery, one
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or more U.S. Physical Certificates of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed
transfer of a Restricted Security to a QIB (other than a
Non-U.S. person):
(i) If the Security to be transferred
consists of (x) U.S. Physical Securities, the
Security Registrar shall register the transfer if
such transfer is being made by a proposed transferor
who has checked the box provided for on the form of
Series A Security stating, or has otherwise advised
the Company and the Security Registrar in writing,
that the sale has been made in compliance with the
provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of
Series A Security stating, or has otherwise advised
the Company and the Security Registrar in writing,
that it is purchasing the Series A Security for its
own account or an account with respect to which it
exercises sole investment discretion and that it and
any such account are QIBs within the meaning of Rule
144A, and that it is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or
has determined not to request such information and
that it is aware that the transferor is relying upon
its foregoing representations in order to claim the
exemption form registration provided by Rule 144A or
(y) an interest in the U.S. Global Security, the
transfer of such interest may be effected only
through the book-entry system maintained by the
Depositary.
(ii) If the proposed transferee is an Agent
Member, and the Series A Security to be transferred
consists of U.S. Physical Securities, upon receipt by
the Security Registrar of instructions given in
accordance with the Depositary's and the Security
Registrar's procedures therefor, the Security
Registrar shall reflect on its books and records the
date and an increase in the principal amount of the
U.S. Global Security in an amount equal to the
principal amount of the U.S. Physical Securities
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to be transferred, and the Trustee shall cancel the
U.S. Physical Securities so transferred.
(c) Transfers of Interests in the Offshore Global
Security or Offshore Physical Securities to U.S. Persons. The
following provisions shall apply with respect to any transfer
of interests in the Offshore Global Security or Offshore
Physical Securities to U.S. Persons:
(i) prior to the removal of the Private
Placement Legend from the Offshore Global Security or
Offshore Physical Securities pursuant to Section 2.06
and Section 3.05, the Security Registrar shall refuse
to register such transfer and
(ii) after such removal, the Security
Registrar shall register the transfer of any such
Security without requiring any additional
certification.
(d) Transfers to Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer
of a Series A Security to a Non-U.S. Person:
(i) The Security Registrar shall register
any proposed transfer to any Non-U.S. Person if the
Security to be transferred is a U.S. Physical
Security or an interest in the U.S. Global Security
only upon receipt of a certificate substantially in
the form of Exhibit B from the proposed transferor.
(ii) (x) If the proposed transferor is an
Agent Member holding a beneficial interest in the
U.S. Global Security, upon receipt by the Security
Registrar of (1) the documents required by paragraph
(i) of this paragraph (d) and (2) instructions in
accordance with the Depositary's and the Security
Registrar's procedures, the Security Registrar shall
reflect on its books and records the date and a
decrease in the principal amount of the U.S. Global
Security in an amount equal to the principal amount
of the beneficial interest in the U.S. Global
Security to be transferred, and (y) if the proposed
transferee is an Agent Member, upon receipt by the
Security
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Registrar of instructions given in accordance with
the Depositary's and the Security Registrar's
procedures, the Security Registrar shall reflect on
its books and records the date and an increase in the
principal amount of the Offshore Global Security in
an amount equal to the principal amount of the U.S.
Physical Securities or the U.S. Global Security, as
the case may be, to be transferred, and the Trustee
shall cancel the Physical Security so transferred or
decrease the principal amount of the U.S. Global
Security, as the case may be.
(e) Private Placement Legend. Upon the transfer,
exchange or replacement of Securities not bearing the Private
Placement Legend, the Security Registrar shall deliver
Securities that do not bear the Private Placement Legend. Upon
the transfer, exchange or replacement of Securities bearing
the Private Placement Legend, the Security Registrar shall
deliver only Securities that bear the Private Placement Legend
unless either (i) the Private Placement Legend is no longer
required pursuant to Section 2.06 and Section 3.05, or (ii)
there is delivered to the Security Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee
to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain
compliance with the provisions of the Securities Act.
(f) General. By its acceptance of any Security, or
any beneficial interest in any Global Security, bearing the
Private Placement Legend, each Holder of such Security or
beneficial interest acknowledges the restrictions on transfer
of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture. The Security
Registrar shall not register a transfer of any Security unless
such transfer couples with the restrictions on transfer of
such Security set forth in this Indenture. In connection with
any transfer of Securities to an Institutional Accredited
Investor, each such Holder or beneficial owner agrees by its
acceptance of the Securities to furnish the Security Registrar
or the Company such certifications, legal opinions or other
information as such Person may reasonably require to confirm
that such transfer is being made pursuant to an exemption
from, or a transaction not subject to, the
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registration requirements of the Securities Act; provided that
the Security Registrar shall not be required to determine (but
may rely on a determination made by the Company with respect
to) the sufficiency of any such certifications, legal opinions
or other information.
The Security Registrar shall retain copies of all
letters, notices and other written communications received
pursuant to Section 3.12 or this Section 3.13. The Company
shall have the right to inspect and make copies of all such
letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice
to the Security Registrar.
Each Holder of a Security agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Agent Members
or beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
SECTION 3.14. Maintenance of Office or Agency. The Company will
maintain in The City of New York, New York, an office or agency where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer or exchange or redemption and where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Corporate Trust Office of the Trustee shall be such office or
agency of the Company, unless the Company shall designate and monitor the other
office or agency for one or more of such purposes. The Company will 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 shall fail 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 Corporate Trust Office of the Trustee, and the
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Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Securities 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 manner relieve the
Company of its obligation to maintain an office or agency in The City of New
York, New York, for such purposes. The Company will 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.
SECTION 3.15. Money for Securities; Payments To Be Held in Trust. If
the Company shall at any time act as its own Paying Agent, it will, on or before
each due date of the principal of (and premium, if any) or interest on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency in which such Securities are payable
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents, it will, on
or prior to each due date of the principal of (and premium, if any) or interest
on any Securities, deposit with such Paying Agent a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities
in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give the Trustee notice of any default by the
Company in the making of any payment of principal (and
premium, if any) or interest on the Securities; and
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(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent, and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to any applicable escheat, abandoned property or unclaimed
property law, any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company upon Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 3.16. Rule 144A Information Requirement. Until such time as
the Company consummates an Exchange Offer for all the Securities or has
registered the Securities for resale under the Securities Act, the Company will
make available, upon request, to any Holder or beneficial holder of Securities
and any prospective purchaser of the Securities designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act.
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ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein expressly provided for
and rights to receive payments of principal (and premium, if any) and interest
on such Securities), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(i) all Securities theretofore authenticated
and delivered (other than (A) Securities which have
been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06 and (B)
Securities for whose payment money has theretofore
been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in
Section 3.15) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable; or
(B) will become due and payable at
their Stated Maturity within one year; or
(C) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice by the Trustee in the name, and at
the expense of the Company;
and the Company, in the case of (A), (B) or (C), has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds in trust for the purpose an
amount, in the currency in which such Securities are payable,
sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation,
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for principal (and premium, if any) and interest to the date
of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date,
as the case may be; provided, however, in the case of (B) or
(C), in the event a petition for relief under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or state bankruptcy, insolvency or other
similar law, is filed with respect to the Company within 93
days after the deposit and the Trustee is required to return
the deposited money to the Company, the obligations of the
Company under this Indenture with respect to the Securities
shall not be deemed terminated or discharged;
(b) the Company has paid or caused to be paid all
other sums payable hereunder by the Company, including amounts
owing to the Trustee under Section 6.07;
(c) in the case of clause (a)(ii)(B) or (C) above,
the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been
complied with; and
(d) the Company has delivered to the Trustee an
Opinion of Counsel or a ruling by the Internal Revenue Service
to the effect that such deposit and discharge will not cause
Holders of Securities to recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and
discharge 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 discharge had not
occurred.
Notwithstanding the satisfaction and discharge of this Indenture, if
money shall have been deposited with the Trustee pursuant to subclause (ii) of
clause (a) of this Section, the obligations of the Trustee under Section 4.02
and the last paragraph of Section 3.15, shall survive.
SECTION 4.02. Application of Trust Money. Subject to
provisions of the last paragraph of Section 3.15, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
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acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee but such money need not
be segregated from other funds except to the extent required by law.
SECTION 4.03. Defeasance and Discharge of Indenture. The
Company shall be deemed to have paid and discharged the entire indebtedness on
all the Outstanding Securities on the 94th day after the date of the deposit
referred to in subparagraph (e) hereof, and the provisions of this Indenture, as
they relate to such Outstanding Securities, shall no longer be in effect (and
the Trustee, at the expense of the Company, shall, at Company Request, execute
proper instruments acknowledging the same), except, as to:
(a) the rights of Holders of Securities to receive,
from the trust funds described in subparagraph (e) hereof,
payment of the principal of (and premium, if any) or interest
on the Outstanding Securities on the Stated Maturity of such
principal or installment of principal or interest or upon
redemption;
(b) the Company's obligations with respect to such
Securities under Sections 3.05, 3.06, 3.14 and 3.15;
(c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder; and
(d) this Article IV,
provided that the following conditions shall have been satisfied:
(e) the Company has irrevocably deposited or caused
to be irrevocably deposited with the Trustee (or another
trustee satisfying the requirements of Section 6.09) as trust
funds in the trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the
Securities, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms
will provide not later than one day before the due date of any
payment referred to in clause (A) or (B) of this subparagraph
(e) money in an amount or (iii) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a
written certification
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thereof delivered to the Trustee, to pay and discharge the
principal of (and premium, if any) and each installment of
principal of (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity of such
principal or installments of interest;
(f) such deposit shall not cause the Trustee with
respect to the Securities to have a conflicting interest as
defined in Section 6.08 and for purposes of the Trust
Indenture Act with respect to the Securities;
(g) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound;
(h) no Event of Default or event (including such
deposit) which, with notice or lapse of time or both, would
become an Event of Default shall have occurred and be
continuing on the date of such deposit and no Event of Default
of the type referred to in paragraph (f) or (g) with respect
to the Company or event which, with notice or lapse of time or
both, would become such an Event of Default shall have
occurred and be continuing during the period ending on the
93rd day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the
expiration of such period);
(i) if the Securities are then listed on any national
securities exchange, the Company has delivered to the Trustee
an Opinion of Counsel or a letter or other document from such
exchange to the effect that the deposit would not cause the
Securities to be delisted;
(j) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel to the effect
that there has been a change in applicable Federal law such
that, or the Company has received from, or there has been
published by, the Internal Revenue Service a ruling to the
effect that, Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge 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, defeasance and discharge had not occurred;
and
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(k) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the defeasance
contemplated by this Section have been complied with.
SECTION 4.04. Defeasance of Certain Obligations. Subject to the
satisfaction of the conditions set forth below, (i) the Company shall be
released from its obligations under the covenants contained in Sections 10.02
and 10.03 with respect to the Outstanding Securities and such covenants shall be
of no force and effect, in each case, on and after the date the conditions set
forth below are satisfied, (ii) the Company may omit to comply with any term,
provision or condition set forth in Sections 10.02 and 10.03, whether directly
or indirectly, by reason of any reference elsewhere in this Indenture to any
such covenant or by reason of any reference in any such covenant to any other
provision in this Indenture or in any other document and (iii) any such omission
with respect to Sections 10.02 and 10.03 shall not be an Event of Default, but,
except as specified above, the remainder of this Indenture and the Securities
shall be unaffected thereby. The following shall be the conditions to the
application of this Section 4.04 to the Outstanding Securities:
(a) with reference to this Section 4.04, the Company
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09) as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities, (i) money in an
amount, or (ii) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in
accordance with their terms will provide not later than one
day before the Stated Maturity, money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the principal of (and premium,
if any) and each installment of interest on the Securities on
the Stated Maturity of such principal or installments of
interest;
(b) such deposit shall not cause the Trustee to have
a conflicting interest as defined in Section 6.08 and for
purposes of the Trust Indenture Act with respect to the
Securities;
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(c) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Company is a
party or by which it is bound;
(d) no Event of Default or event (including such
deposit) which, with notice or lapse of time or both, would
become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(e) if the Securities are then listed on any national
securities exchange, the Company has delivered to the Trustee
an Opinion of Counsel or a letter or other document from such
exchange to the effect that the deposit would not cause the
Securities to be delisted;
(f) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and defeasance of certain
obligations and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such deposit and defeasance had not
occurred; and
(g) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the defeasance contemplated in this Section have been complied
with.
SECTION 4.05. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 4.01, 4.03 or 4.04 hereof 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, then the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article IV until
such time as the Trustee or Paying Agent is permitted to apply all such money or
U.S. Government Obligations in accordance with Section 4.01, 4.03 or 4.04, as
applicable; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest on any Securities following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such
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Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent.
SECTION 4.06. Miscellaneous Provisions. The Company shall pay
and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
4.04 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default" wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, sale or regulation of any administrative or governmental body):
(a) default in the payment of any interest, upon any
Security when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(b) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity; or
(c) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a
written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) (i) an event of default or any other event shall
occur or condition shall exist (if the effect of such event of
default or other event or condition is to
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accelerate the maturity of Indebtedness of the Company or any
Subsidiary) under any agreement or instrument relating to such
Indebtedness in a principal amount of at least $10,000,000; or
(ii) failure on the part of the Company or any Subsidiary to
make any payment of principal or interest or any payment under
a guarantee in respect of any Indebtedness, in each case in an
amount of at least $10,000,000 on the date such payment is due
(or within any grace period specified in the agreement or
other instrument governing such Indebtedness); or
(e) any final, nonappealable judgment or order for
the payment of money in excess of $10,000,000 shall be
rendered against the Company and either (i) enforcement
proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(f) the entry by a court having jurisdiction in the
premises of (i) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any
applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect to the Company
under any applicable Federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of
any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any
such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive
days; or
(g) the commencement by the Company for a voluntary
case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt
or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar
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law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief
under any applicable Federal or state law, or the consent by
it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of
the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action by the Company in furtherance of such action.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in clauses (f) or (g)
of Section 5.01) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities may declare the principal amount of all of the Securities
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified portion thereof) (and premium, if any) plus accrued and
unpaid interest shall become immediately due and payable. If an Event of Default
specified in clauses (f) or (g) of Section 5.01 occurs, the principal of (and
premium, if any) and any accrued and unpaid interest on all of the Securities
shall become immediately due and payable without any declaration or other act on
the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(a) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(i) all overdue interest on all Securities,
(ii) the principal of (and premium, if any,
on) any Securities which have become due otherwise
than by such declaration of acceleration and
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interest thereon at the rate or rates prescribed
therefor in such Securities,
(iii) to the extent that payment of such
interest is lawful, interest upon overdue interest at
the rate or rates prescribed therefor in such
Securities, and
(iv) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the
Trustee under Section 6.07, and
(b) all Events of Default, other than the nonpayment
of the principal of Securities which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission and annulment shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(a) default is made in the payment of any interest on
any Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(b) default is made in the payment of the principal
of (or premium, if any, on) any Securities at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Security, the whole amount then due and payable on such Security
for principal (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest at the rate or rates
prescribed therefor in such Security, and, in addition thereto, 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.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the
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collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any
other obligor upon such Security and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or
any other obligor upon such Security, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceedings, or any voluntary or involuntary case under the Federal bankruptcy
laws, as now or hereafter constituted, relative to the Company or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid
in respect of the Securities and to file such other papers or
documents and take such other actions 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 any other amounts due the Trustee
under Section 6.07) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial
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proceeding 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 it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07.
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
Securities 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; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name, as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and for any
other amounts due the Trustee under Section 6.07, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 5.06. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, or at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
under Section 6.07;
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest on
the Securities in respect of which or for the benefit of which
such money has been collected,
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ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for
principal (and premium, if any) and interest, respectively;
and
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, has failed to
institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security
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shall have the right, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to Section 3.07) interest on
such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment and interest thereon, and such rights
shall not be impaired without the consent of such Holder.
SECTION 5.09. 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.
SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Indenture or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority in
aggregate principal amount of the Outstanding Securities shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to
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the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities, provided that
(1) such direction shall not be in conflict with any
rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such
direction.
SECTION 5.13. Waiver of Past Defaults. The Holders of not less
than a majority in aggregate principal amount of the Outstanding Securities may,
on behalf of the Holders of all the Securities, waive, by notice to the Trustee
and the Company, any past default or Event of Default hereunder and its
consequences, except a default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security, or
(2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without
the consent of the Holder of each Outstanding Security
affected.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive any past
default hereunder. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
waive any default hereunder, whether or not such Holders remain Holders after
such record date; provided that unless such majority in principal amount shall
have waived such default prior to the date which is 120 days after such record
date, any such waiver of such default previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by such Holder's acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, 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, suffered or
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omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest on any Security on or after the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
SECTION 5.15. Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
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.
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations 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
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Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case 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 man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) Subject to Section 6.04, no provision of this Indenture
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that
(1) this subsection shall not be construed to limit the effect
of subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture;
(4) the Trustee shall not be required 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; and
(5) the Trustee shall not be charged with knowledge of any
default or Event of Default or any other act or circumstance upon the
occurrence of which the Trustee may be required to take action unless a
Responsible Officer of the Trustee obtains actual knowledge of such
default, Event of Default, act or circumstance or unless written notice
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referencing this Indenture or the Securities is received by the Trustee
at the Corporate Trust Office.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder, the Trustee shall transmit by mail to all
Holders of Securities, as their names and addresses appear in the Security
Register, notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities; and provided, further, that in the case of any default of
the character specified in Section 5.01(c), no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any instruction, request or direction of the Company
mentioned herein shall be sufficiently evidenced by a Company Request or Company
Order or as otherwise expressly provided herein and any resolution of the Board
of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein
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specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) before the Trustee acts or refrains from acting, the
Trustee may consult with counsel of its selection and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) 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;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company and shall incur no liability of any
kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this Indenture;
(i) the Trustee shall not be required 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; and
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(j) except with respect to Section 10.01 herein, the Trustee
shall have no duty to inquire as to the performance of the Company's covenants
in Article X hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Event of Default except (i) any Event of Default occurring
pursuant to Sections 5.01(a) or 5.01(b) or (ii) any Event of Default of which
the Trustee shall have received written notification or obtained actual
knowledge.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any authenticating agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1, when
supplied to the Company, will be true and accurate subject to the qualifications
set forth therein. The Trustee or any authenticating agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any
authenticating agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, authenticating agent, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. Money Held in Trust. Subject to the provisions
of Section 3.15, money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any money received by it hereunder except as otherwise agreed to
in writing with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company
agrees
(1) to pay to the Trustee from time to time, as the
Company and the Trustee shall from time to time agree in
writing, compensation for all services
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rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, including taxes (other than taxes based upon,
measured by or determined by the income of the Trustee),
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of
its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee (and its agents) for,
and to hold it harmless against, any and all loss, damage,
claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company under this Section 6.07 to
compensate and indemnify the Trustee and to pay or reimburse the Trustee for
expenses, disbursements and advances shall survive the satisfaction and
discharge of this Indenture. Such obligations shall be a senior claim to that of
the Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on particular Securities, and the Securities are hereby
subordinated to each senior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Article V hereof,
the expenses (including reasonable fees and expenses of outside counsel) and the
compensation for the service in connection therewith are intended to constitute
expenses of administration under any applicable bankruptcy law.
The Trustee shall give the Company notice of any claim or
liability for which the Trustee might be entitled to indemnification under
subparagraph (3) of this Section 6.07 within a reasonable amount of time after a
Responsible Officer of the Trustee actually becomes aware of such claim or
liability.
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SECTION 6.08. Disqualification; Conflicting Interests. The
Trustee shall at all times satisfy the requirements of TIA Sections 310(a)(1),
(2) and (5). If the Trustee has or shall acquire a conflicting interests within
the meaning of the TIA, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the TIA and this Indenture. The Trustee shall be subject to the
provisions of TIA Section 310(b).
SECTION 6.09. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, eligible to act as Trustee under TIA Section 310(a)(1),
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal, State or District of Columbia authority.
The Trustee hereby represents and warrants that it is currently in compliance
and at all times will remain in compliance with the requirements of this Section
6.09. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company, nor any
Person directly or indirectly controlling, controlled by or under common control
with the Company, shall act as Trustee hereunder.
SECTION 6.10. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company. If the instrument of acceptance by
a successor Trustee required by Section 6.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the
Trustee being removed may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section
3.10(b) after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for
at least six months, or
(2) the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of rehabilitation,
conservation or liquidation, or
(4) the Trustee shall commence a voluntary case under
the Federal bankruptcy laws, as now or thereafter constituted,
or any other applicable Federal or state bankruptcy,
insolvency or similar law or shall consent to the appointment
of or taking possession by a receiver, custodian, liquidator,
assignee, trustee, sequestrator (or other similar official) of
the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they
become due, or shall take corporate action in furtherance of
any such action,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with
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respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees and shall comply with the applicable requirements
of Section 6.11. If the instrument of acceptance by a successor Trustee required
by Section 6.11 shall not have been delivered within 30 days after such
resignation, removal or incapability, or the occurrence of such vacancy, the
resigning, removed or incapacitated Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee and to
that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security for at least six months may, subject to
Section 5.14, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver
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an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any Corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and make available for delivery the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities; in case any of the Securities shall not have been
authenticated by the Trustee then in office, any successor by merger, conversion
or consolidation to such Trustee may authenticate and deliver such Securities
either in the name of such predecessor hereunder or in the name of the successor
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
Section 6.13. Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section
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311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VII
Holders' Lists and Reports by Trustee and Company
SECTION 7.01. Company To Furnish Trustee Names and Addresses
of Holders. If the Trustee is not acting as Security Registrar for the
Securities, the Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually on a date not more than 15 days
after each Regular Record Date with respect to an Interest
Payment Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders
as of a date not more than 15 days next preceding each such
Regular Record Date, and
(b) at such other times as the Trustee may request in
writing within 15 days after the receipt by the Company of any
such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is
furnished.
SECTION 7.02. Preservation of Information; Communication to
Holders. (a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
TIA Section 312(b).
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 7.02(b), regardless of the source from which
such information was derived, and that the Trustee shall
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not be held accountable by reason of mailing any material pursuant to a request
made under Section 7.02(b).
SECTION 7.03. Reports by Trustee. Within 60 days after May 15
of each year commencing with May 15, 1998, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report dated
as of such May 15 if required by TIA Section 313(a). The Trustee also shall
comply with TIA Sections 313(b) and 313(c). A copy of each such report shall, at
the time of such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will promptly notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company.
(a) The Company shall file with the Trustee, within 15 days
after the Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may from time
to time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act. In the event that the Company is at any time not subject to the reporting
requirements of the Exchange Act, it shall provide the Trustee and file with the
Commission (unless the Commission will not accept such a filing), within 15 days
after the Company would have been required to file such information with the
Commission, financial statements, including any notes thereto and, with respect
to annual reports, an auditors' report by an accounting firm of established
national reputation and a "Management's Discussion and Analysis of Financial
Condition and Results of Operations," both comparable to that which the Company
would have been required to include in such annual and quarterly reports,
information or other documents if the Company had been subject to the
requirements of such Sections 13 or 15(d) of the Exchange Act. The Company also
shall comply with the other provisions of TIA Section 314(a). Notwithstanding
anything to the contrary herein, the Trustee shall have no duty to review such
documents for the purposes of determining compliance with any provision of this
Indenture.
(b) The Company shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations.
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(c) The Company shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, within 30 days after
the filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Company pursuant to clauses
(a) and (b) of this Section or as otherwise may be required by rules and
regulations prescribed from time to time by the Commission.
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
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).
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer of Lease
SECTION 8.01. Company May Consolidate, Etc. Only On Certain
Terms. The Company shall not, in a single transaction or in a series of
transactions, consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person and the Company shall not permit any Person to consolidate with or merge
into the Company or convey transfer or lease all or substantially all of its
properties and assets to the Company, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by
conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a
Corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of
America, 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 satisfactory to
the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and
the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such
transaction, no Event of Default, and no event which,
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after notice or lapse of time or both, would become an Event
of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
SECTION 8.02. Successor Substituted. Upon any consolidation of
the Company with, or merger by the Company into, any other Person or conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
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 Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders, the Company, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company; or
(c) to add any additional Events of Default; or
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(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in a bearer form,
registrable or not registrable as to principal, and with or
without interest coupons; or
(e) to secure the Securities; or
(f) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee hereunder; or
(g) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with other
provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of the
Holders in any material respect; or
(h) to comply with the requirements of the Commission
in order to effect or maintain the qualifications of this
Indenture under the Trust Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any such
Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon redemption
thereof, or change the place of payment where, or the coin or
currency in which, any such Security or any premium or the
interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or
after the Redemption Date), or
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(b) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is
required for any such supplemental indenture, or the consent
of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture or certain defaults and
their consequence provided in this Indenture, or
(c) modify any of the provision of this Section 9.02,
Section 5.13 or Section 9.08, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby;
provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in
this Section 9.02 and Section 9.08, or the deletion of this
proviso, in accordance with the requirements of Sections
6.11(b) and 9.01(h).
The Company may, but shall not obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed for such purpose, the Holders on
such record date or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided that unless such consent
shall have become effective by virtue of the requisite percentage having been
obtained prior to the date which is 120 days after such record date, any such
consent previously given shall automatically and without further action by any
Holder be canceled and of no further effect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive and (subject
to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental
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indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby to the extent provided therein.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and made available for delivery after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in a form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and made available for delivery by the
Trustee in exchange for Outstanding Securities.
SECTION 9.07. Notice of Supplemental Indentures. Promptly
after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 9.02, the Company shall give notice
thereof to the Holders of each Outstanding Security so affected, pursuant to
Section 1.06, setting forth in general terms the substance of such supplemental
indenture.
SECTION 9.08. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.02 and 10.03 if before the time for such compliance the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect each term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the t obligations of the Company and the duties
of the Trustee in respect of any such
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term, provision or condition shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to waive any such term,
provision or condition. If a record date is fixed for such purpose, the Holders
on such record date or their duly designated proxies, and only such Persons,
shall be entitled to waive any such term, provision or condition hereunder,
whether or not such Holders remain Holders after such record date; provided that
unless the Holders of not less than a majority in principal amount of the
Outstanding Securities shall have waived such term, provision or condition prior
to the date which is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any Holder be canceled
and of no further effect.
SECTION 9.09. Payment for Consent. None the Company, any
Affiliate of the Company or any Subsidiary shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or
otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Securities
unless such consideration is offered to be paid or agreed to be paid to all
Holders which so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of the Holders that it will duly
and punctually pay the principal of (and premium, if any) and interest on the
Securities in accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Limitation on Liens. The Company will not
itself, and will not permit any Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist, any mortgage, pledge, security interest or
lien (a "Financing Lien") of or upon any of their respective properties or
assets, whether real or personal, tangible or intangible, or otherwise, whether
owned on the date of this Indenture or thereafter acquired ("Property");
provided, however, that this Section shall not apply to:
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(i) the mortgages to be entered into by the Company
and The Glatfelter Pulp Wood Company, a wholly-owned
Subsidiary of the Company, in favor of GWS Valuch, Inc., a
Delaware corporation and a wholly-owned Subsidiary of the
Company;
(ii) Financing Liens on any Property securing or
providing for the payment or refinancing of the purchase price
of such Property created or assumed contemporaneously with (or
within 120 days after) the acquisition of such Property to
secure or provide for the payment or refinancing of all or any
substantial part of the purchase price of such Property or the
cost of improvements to such Property, provided that (A) the
principal amount of Indebtedness secured by such Financing
Liens does not exceed 100% of the costs of such Property
and/or improvements and (B) such Financing Liens shall not
apply to any Property of the Company or any Subsidiary, other
than the acquired Property and any improvements with respect
thereto;
(iii) Financing Liens on any Property existing at the
time of acquisition thereof, provided that such Financing
Liens (A) shall not extend to any Property of the Company or
any Subsidiary other than the Property so acquired and (B) are
not incurred in connection with or in contemplation of the
acquisition of the Property acquired;
(iv) Financing Liens on any Property to secure
Indebtedness of a Subsidiary to the Company or to another
Subsidiary;
(v) Financing Liens for taxes, government assessments
or government charges or levies not yet due or which are being
contested in good faith by appropriate proceedings, to the
extent that a reserve or appropriate provision, if any, is
made in accordance with generally accepted accounting
principles;
(vi) warehousemen's, mechanics', carriers',
materialmen's, repairmen's and other like Financing Liens
incurred in the ordinary course of business, and Financing
Liens securing reimbursement obligations with respect to trade
letters of credit, banker's acceptances and sight drafts
incurred in the ordinary course of business which encumber
documents and other property relating to such letters of
credit, banker's acceptances and sight drafts;
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(vii) Financing Liens existing on the date of this
Indenture;
(viii) in addition to Financing Liens incurred in
connection with Indebtedness permitted by any other provision
of this Section 10.02, Financing Liens securing Indebtedness
in an aggregate principal amount which does not in the
aggregate at any time any such Financing Lien is incurred,
exceed 10% of Consolidated Net Tangible Assets;
(ix) Financing Liens on any Property in favor of the
United States of America or any State thereof or the
Commonwealth of Puerto Rico, or any department, agency or
instrumentality or political subdivision of the United States
of America or any State thereof or the Commonwealth of Puerto
Rico, to secure partial, progress, advance or other payments,
or other obligations pursuant to any contract or statute or to
secure any Indebtedness or other obligations incurred for the
purpose of financing all or any part of the cost of acquiring,
constructing or improving the Property subject to such
Financing Lien (including Financing Liens incurred in
connection with pollution control, industrial revenue, Title
XI maritime financings or similar financings);
(x) Financing Liens on timberlands in connection with
an arrangement under which the Company and/or one or more
Subsidiaries are obligated to cut or pay for timber in order
to provide the lienholder with a specified amount of money,
however reasonably determined; or
(xi) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or
in part, of any Financing Lien referred to in the foregoing
clauses (i) to (x), inclusive; provided, however, that the
principal amount of Indebtedness secured thereby shall not be
in excess of the outstanding principal amount of Indebtedness
so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement
shall be limited to all or part of the Property which secured
the Financing Lien so extended, renewed or replaced (plus
improvements on the Property).
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SECTION 10.03. Limitation on Sale and Leaseback Transactions.
The Company will not, nor will it permit any Subsidiary to, enter into directly
or indirectly any arrangement with any Person (other than the Company or any
Subsidiary) providing for the leasing by the Company or a Subsidiary of any
Property (except for temporary leases for a term, including any renewal thereof,
of not more than three years), which Property has been or is to be sold or
transferred to the Company or such Subsidiary to such Person (herein referred to
as a "Sale and Leaseback Transaction"), unless either:
(i) the Company or such Subsidiary would, at the time
of entering into such arrangement, be entitled under Section
10.02 to incur Indebtedness secured by a Financing Lien on the
Property to be leased equal to or exceeding the amount of the
net proceeds received by the Company or such Subsidiary with
respect to such Sale and Leaseback Transaction; or
(ii) within 90 days after the effective date of any
such Sale and Leaseback Transaction, the Company or such
Subsidiary applies an amount (net of applicable taxes) equal
to the greater of (A) the net proceeds of such sale or
transfer or (B) the fair market value of the Property so
leased at the time of entering into such arrangement (as
determined by the Board of Directors) to the retirement (other
than any mandatory retirement) of any funded Indebtedness of
the Company or any Subsidiary which by its terms is senior to,
or pari passu with the Securities.
SECTION 10.04. Compliance Certificate. (a) The Company shall
deliver to the Trustee, within 120 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the activities of the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether each has
kept, observed, performed and fulfilled its obligations under this Indenture,
and further stating, as to each such Officer signing such certificate, that to
his or her knowledge each entity has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if an Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action each is taking or proposes to take with respect thereto) and that to his
or her knowledge no event has occurred and remains in existence by reasons of
which payments on account of
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the principal of or interest, if any, on the Securities of any series is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto.
(b) The Company shall deliver to the Trustee, forthwith upon
any Officer becoming aware of (i) any Event of Default or (ii) any event of
default under any other mortgage, indenture or instrument, and Officers'
Certificate specifying such Event of Default or event of default and what action
the Company is taking or proposes to take with respect thereto.
ARTICLE XI
Redemption of Securities
SECTION 11.01. Right of Redemption. The Securities may be
redeemed at the election of the Company, as a whole or from time to time in
part, at any time prior to maturity, at the Redemption Price, together with
accrued interest to the Redemption Date.
SECTION 11.02. Applicability of Article. Redemption of
Securities at the election of the Company, as permitted by any provision of this
Indenture, shall be made in accordance with this Article.
SECTION 11.03. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 11.01 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities pursuant to Section 11.04, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed.
SECTION 11.04. Selection by Trustee of Securities to Be
Redeemed. Except in the case of a redemption in whole of the Securities, if less
than all the Securities are to be redeemed at the election of the Company, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities in a denomination larger than $1,000.
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The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 11.05. Notice of Redemption. Notice of redemption
shall be given in the manner provided for in Section 1.05 not less than 30 days
and not more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed in whole or in part pursuant to this Article Eleven.
The Trustee shall give the notice of redemption in the Company's name and at the
Company's expense; provided, however, that the Company shall deliver to the
Trustee, at least 45 days prior to the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee), an Officers' Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in
such notice as provided in the following items.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed, as
well as the aggregate principal amount of Securities to be redeemed and
the aggregate principal amount of Securities to be Outstanding after
such partial redemption,
(4) in case any Security is to be redeemed in part
only, the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the Holder
shall receive, without charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price
plus any accrued interest to the Redemption Date will become due and
payable upon each
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such Security, or portion thereof, to be redeemed, and that, unless the
Company defaults in making payment of the Redemption Price plus any
accrued interest to the Redemption Date, interest thereon, shall cease
to accrue on and after said Redemption Date,
(6) the place or places where such Securities are to
be surrendered for payment of the Redemption Price,
(7) the name and address of the Paying Agent,
(8) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price,
(9) the CUSIP number, and that no representation is
made as to the accuracy or correctness of the CUSIP number, if any,
listed in such notice or printed on the Securities, and
(10) the Section of this Indenture pursuant to which
the Securities are to be redeemed.
SECTION 11.06. Deposit of Redemption Price. On or prior to
11:00 A.M., New York City time, on each Redemption Date for any Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 3.15) an amount of money to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, such Securities or such amount or any portions thereof which are to
be redeemed on that date.
SECTION 11.07. Securities Payable on Redemption Date. Notice
of redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as of the
close of business on the
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relevant Regular Record Date according to their terms and the provisions of
Section 3.07.
If, as a result of the failure of the Company to deposit
sufficient funds with the Trustee, any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal (and premium, if
any) shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
SECTION 11.08. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the Corporate Trust
Office or such other office or agency of the Company as is specified pursuant to
Section 3.14 (with, if the Company, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Security Registrar and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and make available
for delivery to the Holder of such Security without service charge, a new
Security or Securities, of like tenor and form, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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<PAGE> 101
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be only executed all as of the day and year first above written.
P.H. GLATFELTER COMPANY
By: /s/ Robert P. Newcomer
----------------------------
Name: Robert P. Newcomer
Title: Sr. Vice President & CFO
THE BANK OF NEW YORK, as Trustee
By: /s/ Remo J. Reale
----------------------------
Name: Remo J. Reale
Title: Assistant Vice President
<PAGE> 102
EXHIBIT A
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
P.H. GLATFELTER COMPANY
228 South Main Street
Spring Grove, Pennsylvania 17362
THE BANK OF NEW YORK
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
In connection with our proposed purchase of 6 7/8% Notes due
2007 (the "Notes") of P.H. Glatfelter Company (the "Company"), we confirm that:
1. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended
(the "Securities Act")) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which we are acting are
each able to bear the economic risk of our or their investment, as the case may
be.
2. We are acquiring the Notes purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
3. We understand that any subsequent transfer of the Notes is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Notes and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes except in compliance with, such
restrictions and conditions and the Securities Act.
4. We understand that the Notes have not been registered under
the Securities Act, and that the Notes may not be sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any
accounts for which we are acting as hereinafter stated, that if we should sell
or otherwise
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<PAGE> 103
transfer any Notes prior to the date which is one year after the original
issuance of the Notes, we will do so only (i) to the Company or any of its
subsidiaries, (ii) inside the United States in accordance with Rule 144A under
the Securities Act to a "qualified institutional buyer" (as defined in Rule 144A
under the Securities Act), (iii) inside the United States to an institutional
"accredited investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that, prior to such transfer, furnished (or has furnished on its
behalf by a U.S. broker/dealer) to the Trustee (as defined in the Indenture
relating to the Notes), a signed letter containing certain representations and
agreements relating to the restrictions on transfer of the Notes (the form of
which letter can be obtained from the Trustee),(iv) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (v) pursuant
to the exemption from registration provided by Rule 144 under the Securities Act
(if available), or (vi) pursuant to an effective registration statement under
the Securities Act, and we further agree to provide to any person purchasing any
of the Notes from us a notice advising such purchaser that resales of the Notes
are restricted as stated herein.
5. We are not acquiring the Notes for or on behalf of, and
will not transfer the Notes to, any pension or welfare plan or an individual
retirement arrangement or account which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended, or an entity whose underlying assets
are deemed to include plan assets by reason of such a plan, arrangement or
account investing in such entity, except as permitted in the section entitled
"Notice to Investors" of the Offering Memorandum relating to the Notes.
6. We understand that, on any proposed resale of any Notes, we
will be required to furnish to the Trustee and the Company such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
The Company and the Trustee are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
A-2
<PAGE> 104
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICT OF LAWS.
_____________________________________________
(Name of Purchaser)
By: _________________________________________
Name:
Title:
Address:
Date:________________________________________
Upon transfer, the Notes should be registered in the name of the new beneficial
owner as follows:
Name: _______________________
Address: ____________________
_____________________________
Taxpayer ID Number: _________
A-3
<PAGE> 105
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS
PURSUANT TO REGULATION S
P.H. GLATFELTER COMPANY
228 South Main Street
Spring Grove, Pennsylvania 17362
THE BANK OF NEW YORK
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
In connection with our proposed sale of $___________ aggregate
principal amount of 6 7/8% Notes due 2007 (the "Notes") of P.H. Glatfelter
Company (the "Company"), we confirm that such sale has been effected pursuant to
and in accordance with Regulation S ("Regulation S") under the U.S. Securities
Act of 1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) the offer of the Notes was not made to a U.S.
Person;
(2) either (a) at the time the buy order was
originated, the transferee was outside the United States or we
and any person acting on our behalf reasonably believed that
the transferee was outside the United States or (b) the
transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any
person acting on our behalf knows that the transaction has
been prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule
903(b) or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
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<PAGE> 106
In addition, if the sale is made during a restricted period and the provisions
of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable thereto, we
confirm that such sale has been made in accordance with the applicable
provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
The Company and the Trustee are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICT OF LAWS.
_____________________________________________
(Name of Transferor)
By: _________________________________________
Name:
Title:
Address:
Date: _______________________________________
Upon transfer, the Notes should be registered in the name of the new beneficial
owner as follows:
Name: _______________________
Address: ____________________
_____________________________
Taxpayer ID Number: _________
B-2
<PAGE> 1
EXHIBIT 4.2
EXECUTION COPY
P.H. GLATFELTER COMPANY
$150,000,000
6 7/8% Notes Due 2007
PURCHASE AGREEMENT
July 17, 1997
BEAR, STEARNS & CO. INC.
BT SECURITIES CORPORATION
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
P.H. Glatfelter Company, a corporation organized and existing
under the laws of the Commonwealth of Pennsylvania (the "Company"), hereby
confirms its agreement with you (the "Initial Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
$150,000,000 aggregate principal amount of its 6 7/8% Notes Due 2007 (the
"Notes"). The Notes are to be issued under an indenture (the "Indenture") to be
dated as of July 22, 1997 between the Company and The Bank of New York, as
trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on one or more exemptions therefrom.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum dated July 14, 1997 (together with
the documents incorporated by reference therein, the "Preliminary Memorandum")
and a final offering
<PAGE> 2
memorandum dated July 17, 1997 (together with the documents incorporated by
reference therein, the "Final Memorandum"; the Preliminary Memorandum and the
Final Memorandum each herein being referred to as a "Memorandum"), each setting
forth or incorporating by reference a description of the terms of the Notes and
the offering of the Notes, a description of the Company and a description of any
material developments relating to the Company occurring after the date of the
most recent historical financial statements included or incorporated by
reference therein.
The Initial Purchasers and their direct and indirect
transferees of the Notes will be entitled to the benefits of the Registration
Rights Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company has agreed,
among other things, to file a registration statement (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
registering the Exchange Notes (as defined therein) or, in certain cases, the
Notes under the Act.
2. Representations and Warranties. The Company represents and
warrants to and agrees with the Initial Purchasers that:
(a) None of the Preliminary Memorandum as of the date thereof
or the Final Memorandum or any amendment thereof or supplement thereto as of the
date thereof and at all times subsequent thereto up to the Closing Date (as
defined in Section 3 below) contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to the Initial Purchasers
furnished to the Company expressly for use in the Preliminary Memorandum, the
Final Memorandum or any amendment thereof or supplement thereto.
(b) The documents incorporated or deemed to be incorporated by
reference in the Final Memorandum, at the time they were or hereafter are filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed) with the Commission, complied and will comply in all
material respects with the requirements of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations of the Commission
thereunder, and, when read together with the other information in the Final
Memorandum, as of the date thereof and at all times subsequent thereto up to the
Closing Date, did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) As of March 31, 1997, the Company had the capitalization
set forth in the Final Memorandum; all the outstanding shares of capital stock
of the Company and its subsidiaries set forth on Schedule 2 hereto (the
"Subsidiaries") have been, and as of the
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<PAGE> 3
Closing Date will be, duly authorized and validly issued, fully paid and
nonassessable and not issued in violation of or subject to any preemptive or
similar rights; except as set forth in the Final Memorandum and except for not
more than the 1% of the outstanding shares of Class A Common Stock of GWS
Valuch, Inc., all the outstanding shares of capital stock of each of the
Subsidiaries will be owned by the Company, directly or through subsidiaries,
free and clear of all liens, encumbrances, equities and claims.
(d) Each of the Company and the Subsidiaries has been duly
organized, is validly existing and is in good standing as a corporation under
the laws of its jurisdiction of incorporation, with all requisite corporate
power and authority to own its properties and conduct its business as now
conducted and as described in the Final Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the business, prospects,
properties, operations, condition (financial or otherwise) or results of
operations of the Company and the Subsidiaries, taken as a whole (any such
event, a "Material Adverse Effect"). No subsidiary of the Company (other than
the Subsidiaries) is a "Significant Subsidiary" as defined in Regulation S-X of
the Commission.
(e) The Company has the corporate power and authority to
execute, deliver and perform each of its obligations under the Notes, the
Exchange Notes and the Private Exchange Notes (as defined in the Registration
Rights Agreement). The Notes, the Exchange Notes and the Private Exchange Notes
have each been duly authorized by all requisite corporate action of the Company
and, when executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and, in the case of the Notes, when
delivered to and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, will have been duly executed, issued and delivered and will
constitute legal, valid and binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their respective terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally
(including applicable fraudulent transfer laws), and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity) and the discretion of the court before which any proceeding
therefor may be brought.
(f) The Company has the corporate power and authority to
execute, deliver and perform its obligations under the Indenture. The form of
the Indenture meets the requirements for qualification under the Trust Indenture
Act of 1939, as amended (the "TIA"). The Indenture has been duly authorized by
all requisite corporate action of the Company and, when executed and delivered
by the Company (assuming the due authorization, execution and delivery by the
Trustee), will constitute a legal, valid and
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<PAGE> 4
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally
(including applicable fraudulent transfer laws) and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding at
law or in equity) and the discretion of the court before which any proceeding
therefor may be brought.
(g) The Company has the corporate power and authority to
execute, deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly authorized by all
requisite corporate action of the Company and, when executed and delivered by
the Company, will constitute a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
or affecting creditors' rights generally (including applicable fraudulent
transfer laws) and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and the
discretion of the court before which any proceeding therefor may be brought and
(B) any rights to indemnity or contribution thereunder may be limited by federal
and state securities laws and public policy considerations.
(h) The Company has the corporate power and authority to
execute, deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company.
(i) No consent, approval, authorization or order of, or
qualification with, any court or governmental agency or body is required for the
performance of this Agreement or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained and such as
may be required under state securities or "Blue Sky" laws in connection with the
purchase and resale of the Notes by the Initial Purchasers and except that the
exchange offer and certain resales contemplated by the Registration Rights
Agreement require effective registration statements under the Act. None of the
Company or the Subsidiaries is (i) in violation of its articles or certificate
of incorporation or bylaws (or similar organizational document), (ii) in breach
or violation of any statute, judgment, decree, order, rule or regulation
applicable to any of them except for any such breach or violation which would
not, individually or in the aggregate, have a Material Adverse Effect, or (iii)
in breach of or default under (nor has any event occurred which, with notice or
passage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note or other instrument pursuant to which the Company or its
Subsidiaries has indebtedness for borrowed money outstanding or any material
lease, license, franchise agreement, permit, certificate, contract or other
material agreement or instrument to which any of them is a party (collectively,
"Contracts"),
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<PAGE> 5
except for any such breach, default, violation or event which would not,
individually or in the aggregate, have a Material Adverse Effect.
(j) The execution, delivery and performance by the Company of
this Agreement, the Indenture and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and thereby
(including the issuance and sale of the Notes to the Initial Purchasers), and
the fulfillment of the terms hereof and thereof, will not constitute or result
in a breach of or a default under (or an event which with notice or passage of
time or both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract, except for any such breach, violation,
default or event which would not, individually or in the aggregate, have a
Material Adverse Effect, (ii) the articles or certificate of incorporation or
bylaws (or similar organizational document) of the Company or any of the
Subsidiaries, or (iii) any statute, judgment, decree, order, rule or regulation
applicable to the Company or any of the Subsidiaries or any of their respective
properties or assets, assuming compliance with all applicable state securities
or "Blue Sky" laws and assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, except for any such
breach or violation which would not, individually or in the aggregate, have a
Material Adverse Effect.
(k) The consolidated financial statements of the Company
(including the notes thereto) included or incorporated by reference in the Final
Memorandum present fairly in all material respects the consolidated financial
position, results of operations and cash flows of the Company and its
subsidiaries at the dates and for the period to which they relate and have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis, except as otherwise stated therein. Deloitte & Touche LLP
(the "Independent Accountants"), who have certified the consolidated financial
statements and supporting schedules thereto included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 which are incorporated
by reference in the Final Memorandum, are independent public accountants with
regard to the Company within the meaning of the Act and the rules and
regulations promulgated thereunder.
(l) Other than as described in the Final Memorandum or the
documents incorporated by reference therein, there is not pending or, to the
knowledge of the Company, threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any of the Subsidiaries is a party, or to
which the property or assets of the Company or any of the Subsidiaries are
subject, before or brought by any court, arbitrator or governmental agency or
body which, if determined adversely to the Company or any of the Subsidiaries,
would, individually or in the aggregate, have a Material Adverse Effect or which
seeks to restrain, enjoin, prevent the consummation by the Company of or
otherwise challenge the issuance or sale of the Notes to be sold hereunder to
the Initial Purchasers, the consummation of the transactions contemplated hereby
or the application of the net proceeds therefrom as described in the Final
Memorandum under the heading "Use of Proceeds."
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<PAGE> 6
(m) Each of the Company and the Subsidiaries has good title to
all properties owned by them, in each case, free and clear of all liens,
encumbrances, security interests, charges and claims of any kind whatsoever
except (i) as do not materially interfere with the use made or proposed to be
made of such properties, (ii) as set forth in the Offering Memorandum or (iii)
as could not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(n) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, presently required or necessary to own or lease, as the case may be,
and to operate its properties and to carry on its businesses in the manner
described in the Final Memorandum ("Permits"), except where the failure to
obtain such Permits would not, individually or in the aggregate, have a Material
Adverse Effect; each of the Company and the Subsidiaries has fulfilled and
performed in all material respects all of its obligations with respect to such
Permits and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit; and none of the
Company or the Subsidiaries has received any notice of any proceeding relating
to revocation or modification of any such Permit, except as described in the
Final Memorandum and except where such revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect.
(o) Each of the Company and the Subsidiaries owns or
possesses, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets or other
proprietary or confidential information, systems or procedures, whether patented
or unpatented), trademarks, service marks and trade names (collectively,
"intellectual property") presently employed by them in connection with the
business now operated by them, except where the failure to own or possess or
have the ability to acquire any such intellectual property would not,
individually or in the aggregate, have a Material Adverse Effect, and neither
the Company nor any of the Subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any of the
foregoing that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse Effect.
(p) Except as disclosed in the Final Memorandum, each of the
Company and the Subsidiaries is in material compliance with all applicable
existing federal, state and local laws and regulations relating to the
protection of human health or the environment or imposing liability or standards
of conduct concerning any Hazardous Material (as hereinafter defined)
("Environmental Laws"), except, in each case, where such noncompliance,
individually or in the aggregate, would not have a Material Adverse Effect. The
term "Hazardous Material" means (i) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, (ii) any
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<PAGE> 7
"hazardous waste" as defined by the Resource Conservation and Recovery Act, as
amended, (iii) any petroleum or petroleum product, (iv) any polychlorinated
biphenyl and (v) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within the meaning of
any other Environmental Law.
(q) Except as disclosed in the Final Memorandum, there is no
alleged liability (including alleged liability for investigatory costs, cleanup
costs, governmental response costs, natural resource damages, property damages,
personal injuries or penalties) of the Company or any of the Subsidiaries
arising out of, based on or resulting from (i) the presence or release into the
environment of any Hazardous Material at any location, whether or not owned by
the Company or any of the Subsidiaries or (ii) any violation or alleged
violation of any Environmental Law, which alleged liability, individually or in
the aggregate, would have a Material Adverse Effect.
(r) Since the date of the most recent financial statements
included or incorporated by reference in the Final Memorandum, except as
described therein, none of the Company or the Subsidiaries has sustained any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree; and since the respective dates
as of which information is given in the Final Memorandum, there has not been any
material adverse change in the capital stock or consolidated short-term or
long-term debt of the Company (exclusive of the Bank Facility (as defined in the
Final Memorandum) and the issue of Notes contemplated by this Agreement) or any
event or development that, individually or in the aggregate, has had or would be
reasonably likely to have a Material Adverse Effect, otherwise than as set forth
or contemplated in the Final Memorandum.
(s) None of the Company or the Subsidiaries are, nor will any
of them upon consummation of the transactions contemplated hereby be, an
"investment company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(t) The Notes, the Exchange Notes, the Indenture and the
Registration Rights Agreement will conform in all material respects to the
descriptions thereof in the Final Memorandum.
(u) No holder of securities of the Company or any Subsidiary
will be entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the Registration
Rights Agreement other than as expressly permitted thereby.
(v) None of the Company, any of its "affiliates" (as defined
in Rule 501(b) of Regulation D under the Act ("Affiliates")) or any person
acting on behalf of any such
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<PAGE> 8
person has directly, or through any agent, (i) sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any "security" (as defined
in the Act) which is or could be integrated with the sale of the Notes in a
manner that would require the registration under the Act of the Notes or (ii)
engaged in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act. None of the Company, any of its Affiliates or any
person acting on behalf of any such person (other than the Initial Purchasers,
as to whom the Company makes no representation) has engaged in any directed
selling efforts (as such term is defined in Regulation S under the Act) in the
United States with respect to the Notes and each of the Company, its Affiliates
and any person acting on behalf of any such person has complied with the
offering restrictions requirement of Regulation S under the Act.
(w) Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, it is not necessary in
connection with the offer, sale and delivery of the Notes to the Initial
Purchasers in the manner contemplated by this Agreement and the Final Memorandum
to register any of the Notes under the Act or to qualify the Indenture under the
TIA.
(x) No securities of the Company are of the same class (within
the meaning of Rule 144A under the Act) as the Notes and listed on a national
securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated inter-dealer quotation system.
(y) None of the Company or the Subsidiaries has taken, nor
will any of them take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes.
(z) None of the execution, delivery and performance of this
Agreement, the execution, delivery, issuance and sale of the Notes, the
application of the proceeds from the issuance and sale of the Notes and the
consummation of the transactions contemplated by this Agreement and the Final
Memorandum will violate Regulation G, T, U or X promulgated by the Board of
Governor of the Federal Reserve System.
3. Purchase, Sale and Delivery of the Notes. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase the Notes in the respective amounts
set forth on Schedule 1 hereto from the Company, at 99.269% of their principal
amount. The Initial Purchasers agree to reduce by $675,000 the amount of the
discount otherwise payable to them hereunder. One or more certificates in
definitive form for the Notes that the Initial Purchasers have agreed to
purchase hereunder, and in such denomination or denominations and registered in
such name or names as the
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<PAGE> 9
Initial Purchasers request upon notice to the Company at least 36 hours prior to
the Closing Date, shall be delivered by or on behalf of the Company to the
Initial Purchasers, against payment by or on behalf of the Initial Purchasers of
the purchase price therefor by wire transfer (same day funds) to such account or
accounts as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Notes shall be made at the offices of Stroock & Stroock &
Lavan LLP, 180 Maiden Lane, New York, New York 10038 at 10:00 a.m., New York
time, on July 22, 1997, or at such other place, time or date as the Initial
Purchasers, on the one hand, and the Company, on the other hand, may agree upon,
such time and date of delivery against payment being herein referred to as the
"Closing Date." The Company will make such certificate or certificates for the
Notes available for checking and packaging by the Initial Purchasers at the
offices of Bear, Stearns & Co. Inc. in New York, New York, or at such other
place as Bear, Stearns & Co. Inc. may designate, at least 24 hours prior to the
Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Company covenants and agrees
with each of the Initial Purchasers that:
(a) The Company will not amend or supplement the Final
Memorandum or any amendment thereof or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchasers shall not have given their consent, which
consent shall not be unreasonably withheld. The Company will promptly, upon the
reasonable request of the Initial Purchasers or counsel for the Initial
Purchasers, make any amendments or supplements to the Preliminary Memorandum or
the Final Memorandum that may be necessary or advisable in connection with the
resale of the Notes by the Initial Purchasers.
(b) The Company will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Initial Purchasers
may designate and will continue such qualifications in effect for as long as may
be necessary to complete the resale of the Notes; provided, however, that in
connection therewith, the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
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<PAGE> 10
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes or the Private Exchange
Notes, any event occurs or information becomes known as a result of which, in
the judgment of the Company or in the opinion of counsel for the Initial
Purchasers, the Final Memorandum as then amended or supplemented would include
any untrue statement of a material fact, or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if for any other reason it is
necessary at any time, in the judgment of the Company or in the opinion of
counsel for the Initial Purchasers, to amend or supplement the Final Memorandum
to comply with applicable law, the Company will promptly notify the Initial
Purchasers thereof and will promptly prepare, at the expense of the Company, an
amendment or supplement to the Final Memorandum that corrects such statement or
omission or effects such compliance.
(d) The Company authorizes the Initial Purchaser to deliver to
prospective purchasers copies of any Preliminary Memorandum and the Final
Memorandum and any amendments thereof or supplements thereto in connection with
any offer or sale of the Notes by the Initial Purchasers in accordance herewith.
In connection with such delivery of copies of any Preliminary Memorandum and the
Final Memorandum and any amendments thereof or supplements thereto, the Company
agrees to furnish, without charge, to the Initial Purchasers and to counsel for
the Initial Purchasers as many copies of the Preliminary Memorandum and the
Final Memorandum or any amendment thereof or supplement thereto as the Initial
Purchasers may reasonably request.
(e) The Company will promptly advise the Initial Purchasers
and, if requested by the Initial Purchasers, confirm such advice in writing, of
the issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of the Notes for offering or sale
in any jurisdiction, or the initiation of any proceeding for such purpose by any
state securities commission or other regulatory authority. The Company will use
every reasonable effort to prevent the issuance of any stop order or order
suspending the qualification or exemption of the Notes under any state
securities or "Blue Sky" laws and, if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption of the Notes under any state securities or "Blue Sky"
laws, the Company will use every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(f) The Company will apply the net proceeds from the sale of
the Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(g) For so long as any of the Notes remain outstanding, the
Company will furnish to the Initial Purchasers who are then making a market in
the Notes copies of all reports and other substantive communications (financial
or otherwise) furnished by the Company to the Trustee, or the holders of the
Notes and, as soon as available, copies of any reports or financial statements
furnished to or filed by the Company with the Commission or
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<PAGE> 11
any national securities exchange on which any class of securities of the Company
may be listed.
(h) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any unaudited
interim financial statements of the Company for any quarterly period subsequent
to the period covered by the most recent financial statements appearing in the
Final Memorandum.
(i) None of the Company, any of its Affiliates or any person
acting on behalf of any such person will sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any "security" (as defined in the
Act) which could be integrated with the sale of the Notes in a manner which
would require the registration under the Act of the Notes.
(j) The Company will not, and will not permit any of its
Affiliates or any person acting on behalf of the Company or its Affiliates to,
engage in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(k) None of the Company, any of its Affiliates or any person
acting on behalf of any such person will engage in any directed selling efforts
(as such term is defined in Regulation S under the Act) in the United States
with respect to the Notes and each of the Company, its Affiliates and any person
acting on behalf of any such person will comply with the offering restrictions
requirement of Regulation S under the Act.
(l) For so long as any of the Notes remain outstanding, the
Company will (i) make available, upon request, to any holder of Notes and any
prospective purchaser thereof designated by such a holder, upon the request of
such holder or prospective purchaser, the information required to be provided to
such holder or prospective purchaser by Rule 144A(d)(4) under the Act and (ii)
update such information from time to time in order to prevent such information
from becoming false and misleading and will take such other actions as are
necessary to ensure that the safe harbor exemption from the registration
requirements of the Act under Rule 144A is and will be available for resales of
the Notes conducted in accordance with Rule 144A.
(m) The Company will use its reasonable efforts to (i) permit
the Notes to be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the Private Offerings,
Resales and Trading through Automated Linkages market (the "PORTAL Market") of
the National Association of Securities Dealers, Inc. and (ii) permit the Notes
to be eligible for clearance and settlement through the facilities of The
Depository Trust Company ("DTC").
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<PAGE> 12
6. Expenses. The Company agrees to pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Sections 7 or 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Preliminary Memorandum and the Final Memorandum and any amendment
thereof or supplement thereto, and any "Blue Sky" memoranda, (ii) all
arrangements relating to the delivery to the Initial Purchasers of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation (including printing), issuance and delivery to the Initial
Purchasers of the Notes, (v) the qualification of the Notes under state
securities and "Blue Sky" laws, including filing fees and reasonable fees and
disbursements of counsel for the Initial Purchasers relating thereto, (vi)
expenses of the Company in connection with any meetings with prospective
investors in the Notes, (vii) fees and expenses of the Trustee including the
fees and disbursements of its counsel, (viii) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on the
PORTAL Market, (ix) the cost and charges of DTC and its nominee in connection
with the Notes and (x) any fees charged by investment rating agencies for the
rating of the Notes. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 11 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder (other than solely
by reason of a default by the Initial Purchasers of their obligations hereunder
after all conditions hereunder have been satisfied in accordance herewith), the
Company agrees to promptly reimburse the Initial Purchasers upon demand for all
reasonable out-of-pocket expenses (including reasonable fees, disbursements and
charges of Stroock & Stroock & Lavan LLP, counsel for the Initial Purchasers)
that shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Notes shall,
in their sole discretion, be subject to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of the
Closing Date, to the accuracy of the statements of officers of the Company made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the satisfaction or waiver of the following
additional conditions precedent on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Ballard Spahr Andrews & Ingersoll, counsel for the Company, in
form and substance satisfactory to counsel for the Initial Purchasers, to the
effect that:
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<PAGE> 13
(i) Each of the Company and the Subsidiaries has been duly
incorporated, is validly and presently subsisting under the laws of its
respective jurisdiction of incorporation and has all requisite corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Final Memorandum. The Company is duly qualified to
do business as a foreign corporation in good standing in the jurisdictions set
forth on Schedule 3 hereto.
(ii) Except as set forth in or contemplated by the Final Memorandum, to
the knowledge of such counsel, no holder of securities of the Company is
entitled to have such securities registered under a registration statement filed
by the Company pursuant to the Registration Rights Agreement.
(iii) To the knowledge of such counsel, no legal or governmental
proceedings are pending to which the Company or any of the Subsidiaries is a
party or to which the property or assets of the Company or any of the
Subsidiaries are subject which would be required under the Act to be described
in a registration statement or in a prospectus and are not described in the
Final Memorandum or in a document incorporated by reference therein, or which
seek to restrain, enjoin, prevent the consummation by the Company of or
otherwise challenge the issuance or sale of the Notes to be sold hereunder to
the Initial Purchasers, the consummation of the transactions contemplated hereby
or the application of the net proceeds therefrom as described in the Final
Memorandum under the caption "Use of Proceeds."
(iv) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Indenture, the Notes, the Exchange
Notes and the Private Exchange Notes; the form of the Indenture meets the
requirements for qualification under the TIA; the Indenture has been duly
authorized by all requisite corporate action of the Company and, when duly
executed and delivered by the Company (assuming the due authorization, execution
and delivery thereof by the Trustee), will constitute the legal, valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforcement thereof may be subject to (A)
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally
(including applicable fraudulent transfer laws) and (B) general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether enforceability is considered
in a proceeding at law or in equity) and the discretion of the court before
which any proceeding therefor may be brought.
(v) The Notes have each been duly authorized by all requisite corporate
action of the Company and when duly executed and delivered by the Company and
paid for by the Initial Purchasers in accordance with the terms of this
Agreement (assuming the due authorization, execution and delivery of the
Indenture by the
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<PAGE> 14
Trustee and due authentication and delivery of the Notes by the Trustee in
accordance with the Indenture), will constitute the legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture, and
enforceable against the Company in accordance with their terms, except that the
enforcement thereof may be subject to (A) bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
or affecting creditors' rights generally (including applicable fraudulent
transfer laws) and (B) general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether enforceability is considered in a proceeding at law or in
equity) and the discretion of the court before which any proceeding therefor may
be brought.
(vi) The Exchange Notes and the Private Exchange Notes have been duly
authorized by all requisite corporate action of the Company and, when the
Exchange Notes and the Private Exchange Notes have been duly executed and
delivered by the Company in accordance with the terms of the Registration Rights
Agreement and the Indenture (assuming the due authorization, execution and
delivery of the Indenture by the trustee and due authentication and delivery of
the Exchange Notes and the Private Exchange Notes by the Trustee in accordance
with the Indenture and assuming no changes in the law from the date thereof),
will constitute the legal, valid and binding obligations of the Company,
entitled to the benefits of the Indenture, and enforceable against the Company
in accordance with their terms, except that the enforcement thereof may be
subject to (A) bankruptcy, insolvency, reorganization, moratorium or other laws
now or hereafter in effect relating to or affecting creditors' rights generally
(including applicable fraudulent transfer laws) and (B) general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether enforceability is considered
in a proceeding at law or in equity) and the discretion of the court before
which any proceeding therefor may be brought.
(vii) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights Agreement; the
Registration Rights Agreement has been duly authorized by all requisite
corporate action of the Company and, when duly executed and delivered by the
Company (assuming due authorization, execution and delivery thereof by the
Initial Purchasers), will constitute the legal, valid and binding agreement of
the Company enforceable against the Company in accordance with its terms, except
that (A) the enforcement thereof may be subject to (x) bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
or affecting creditors' rights generally (including applicable fraudulent
transfer laws) and (y) general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether enforceability is considered in a proceeding at law or in
equity) and the discretion of the court before which any proceeding therefor may
be brought
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<PAGE> 15
and (B) any rights to indemnity or contribution thereunder may be limited by
federal and state securities laws or regulation and public policy
considerations.
(viii) The Company has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) The Indenture, the Notes, the Exchange Notes and the Registration
Rights Agreement conform as to legal matters in all material respects to the
descriptions thereof contained in the Final Memorandum.
(x) The execution and delivery of this Agreement, the Indenture and the
Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby (including the issuance and sale of the Notes to
the Initial Purchasers) will not constitute or result in a breach of or a
default under (or an event which with notice or passage of time or both would
constitute a default under) or violation of any of (A) the terms or provisions
of any indenture, mortgage, deed of trust, loan agreement, note or other
agreement or instrument filed or incorporated by reference as an exhibit to the
Company's Annual Report on Form 10-K for the year ended December 31, 1996 or the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997 or
any material agreement or instrument entered into by the Company subsequent to
March 31, 1997 known to such counsel, (B) the articles of incorporation or
bylaws of the Company, or (C) assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchasers in Section 8 hereof, any United States
federal or Pennsylvania statute, rule or regulation of, or judgment, decree or
order applicable to the Company issued by, any governmental authority or
regulatory body having jurisdiction over the Company of which such counsel is
aware, which, in such counsel's experience, is normally applicable both to
general business corporations which are not engaged in regulated business
activities and to transactions of the type contemplated by the Final Memorandum
(but without having made any special investigation as to other laws and provided
that such opinion need not cover any laws or regulations to which the Company or
its affiliates may be subject as a result of the Initial Purchasers' legal or
regulatory status or the involvement of the Initial Purchasers in such
transaction), except for any such conflict, breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect.
(xi) To the knowledge of such counsel, no consent, approval,
authorization or order of, or qualification with, any United States Federal or
Pennsylvania governmental authority is required to be obtained by the Company
for the issuance and sale by the Company of the Notes to the Initial Purchasers
or the other
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<PAGE> 16
transactions contemplated hereby, except such as may be required under "Blue
Sky" laws, as to which such counsel need express no opinion, and those which
have previously been obtained, except where the failure to obtain such consents
or waivers would not result in a Material Adverse Effect and except that the
exchange offer and certain resales contemplated by the Registration Rights
Agreement require effective registration statements under the Act and the
qualification of the Indenture under the TIA.
(xii) No registration under the Act of the Notes is required in
connection with the sale of the Notes to the Initial Purchasers as contemplated
by this Agreement and the Final Memorandum or in connection with the initial
resale of the Notes by the Initial Purchasers in accordance with Section 8 of
this Agreement, and prior to the commencement of the Exchange Offer (as defined
in the Registration Rights Agreement) or the effectiveness of the Shelf
Registration Statement (as defined in the Registration Rights Agreement), the
Indenture is not required to be qualified under the TIA, in each case assuming
(A) that the purchasers who buy such Notes in the initial resale thereof are
"qualified institutional buyers" as defined in Rule 144A promulgated under the
Act ("QIBs"), institutional "accredited investors" as defined in Rule 501(a)(1),
(2), (3) or (7) promulgated under the Act ("Accredited Investors") or foreign
persons under Regulation S, (B) the accuracy of the Initial Purchasers'
representations in Section 8 and those of the Company contained in this
Agreement regarding the absence of a general solicitation in connection with the
sale of such Notes to the Initial Purchasers and the initial resale thereof, (C)
the due performance by the Initial Purchasers of the agreements set forth in
Section 8 hereof and (D) the accuracy of the representations made by each
Accredited Investor who purchases Notes in the initial resale as set forth in
the Final Memorandum.
(xiii) None of the execution, delivery and performance of this
Agreement, the execution, delivery, issuance and sale of the Notes, the
application of the proceeds from the issuance and sale of the Notes and the
consummation of the transactions each as contemplated by this Agreement and the
Final Memorandum will violate Regulation G, T, U or X promulgated by the Board
of Governors of the Federal Reserve System.
(xiv) No securities of the Company are of the same class (within the
meaning of Rule 144A under the Act) as the Notes and listed on a national
securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated inter-dealer quotation system.
(xv) The documents incorporated by reference in the Final Memorandum
(the "Exchange Act Documents") when they were filed with the Commission complied
as to form in all material respects with the requirements of the Exchange Act
and the rules and regulations thereunder; it being understood that such counsel
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<PAGE> 17
need express no opinion with respect to the financial statements and schedules
and related notes thereto and the other financial, statistical and accounting
data included or incorporated by reference in the Final Memorandum or the
Exchange Act Documents.
(xvii) None of the Company or the Subsidiaries are, nor will any of
them upon consummation of the transactions contemplated hereby be, an
"investment company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
The opinion of Ballard Spahr Andrews & Ingersoll described in this Section shall
be rendered to the Initial Purchasers at the request of the Company and shall so
state therein.
At the time the foregoing opinion is delivered, such counsel
shall additionally state that (x) such counsel has acted as counsel to the
Company on a regular basis and in connection with the preparation of the Final
Memorandum and (y) such counsel has participated in conferences with officers
and other representatives of the Company, representatives of the independent
public accountants for the Company, representatives of the Initial Purchasers
and counsel for the Initial Purchasers, at which conferences the contents of the
Final Memorandum and related matters were discussed and, on the basis of such
participation (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), although such counsel has
not independently verified and is not passing upon and assumes no responsibility
for the accuracy, completeness or fairness of the statements contained in the
Final Memorandum (except to the extent set forth in clauses (iii) and (ix)
above), no facts have come to its attention which leads it to believe that the
Final Memorandum, as amended or supplemented, including the Exchange Act
Documents, on the date thereof or at the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no opinion with respect to the financial
statements and schedules and related notes thereto and the other financial,
statistical and accounting data included or incorporated by reference in the
Final Memorandum).
References to the Final Memorandum in this subsection (a)
shall include any amendment thereof or supplement thereto prepared in accordance
with the provisions of this Agreement at the Closing Date.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the federal
laws of the United States, the laws of the Commonwealth of Pennsylvania and the
General Corporation Law of the State of Delaware. With respect to the
enforceability of the Notes, the Exchange Notes, the Private Exchange Notes, the
Indenture and the Registration Rights Agreement such counsel may rely
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<PAGE> 18
on the opinion of New York counsel, which shall be reasonably acceptable to
counsel to the Initial Purchasers, provided that such New York counsel shall
state that Ballard Spahr Andrews & Ingersoll and the Initial Purchasers are
entitled to rely on the opinions of such counsel (copies of which opinions shall
be delivered to the Initial Purchasers on the Closing Date). Such counsel may
also state that, insofar as such opinion involves factual matters, such counsel
have relied, to the extent they deem proper, upon the representations and
warranties of the Company in this Agreement and upon certificates of officers of
the Company and certificates of public officials; provided, however, that such
certificates have been provided to the Initial Purchasers.
(b) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of Stroock & Stroock & Lavan LLP, counsel for the Initial
Purchasers, with respect to certain legal matters relating to this Agreement and
such other related matters as the Initial Purchasers may reasonably require. In
rendering such opinion, Stroock & Stroock & Lavan LLP (i) may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of the
United States, the laws of the State of New York and the General Corporation Law
of the State of Delaware, upon the opinions of counsel satisfactory to the
Initial Purchasers and (ii) shall have received from the Company and may rely
upon such certificates and other documents and information as it may reasonably
request to pass upon such matters.
(c) At the time this Agreement is executed and at the Closing
Date, the Initial Purchasers shall have received from the Independent
Accountants a customary comfort letter and a bring-down comfort letter, as
applicable, dated, respectively, the date hereof and the Closing Date, addressed
to the Initial Purchasers and in form and substance satisfactory to the Initial
Purchasers and their counsel with respect to the financial statements and
certain financial and other information of the Company contained or incorporated
by reference in the Memorandum.
(d) The representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date; the statements of the Company's officers made pursuant to any certificate
delivered in accordance with the provisions hereof shall be true and correct on
and as of the date made and on and as of the Closing Date; the Company shall
have performed all covenants and agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date;
and, except as described in the Final Memorandum, subsequent to the date of the
most recent financial statements in such Final Memorandum, there shall have been
no event or development that, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect.
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<PAGE> 19
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) The Initial Purchasers shall have received a certificate
of the Company, dated the Closing Date, signed by its Chairman of the Board,
President or any Senior Vice President and the Chief Financial Officer,
Controller or Treasurer, to the effect that:
(i) the representations and warranties of the Company contained in this
Agreement are true and correct as of the date hereof and as of the Closing Date,
and the Company has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(ii) at the Closing Date, since the date hereof or, except as described
in the Final Memorandum, since the date of the most recent financial statements
in the Final Memorandum, no event or events have occurred, no information has
become known nor does any condition exist that, individually or in the
aggregate, would have a Material Adverse Effect;
(iii) the sale of the Notes hereunder has not been enjoined
(temporarily or permanently); and
(iv) nothing has come to the attention of such officers that would lead
such officers to believe that the Final Memorandum contains or incorporates by
reference any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) On the Closing Date, the Initial Purchasers shall have
received the Indenture executed by the Company and the Trustee and the Indenture
shall be in full force and effect and no default shall exist thereunder.
(h) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Company and such
agreement shall be in full force and effect and no default shall exist
thereunder.
On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement shall be reasonably
satisfactory in all material respects
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<PAGE> 20
in form and substance to the Initial Purchasers and counsel for the Initial
Purchasers. The Company shall furnish to the Initial Purchasers such conformed
copies of such documents, opinions, certificates, letters, schedules and
instruments in such quantities as the Initial Purchasers shall reasonably
request.
If any of the conditions specified in this Section 7 shall not
have been fulfilled when and as provided by this Agreement, or if any of the
opinions, certificates, written statements or letters furnished to the Initial
Purchasers or their counsel pursuant to this Section 7 shall not be in all
material respects reasonably satisfactory in form and substance to the Initial
Purchasers and their counsel, all obligations of the Initial Purchasers
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Initial Purchasers. Notice of such cancellation shall be given to the Company in
writing, or by telephone or telecopy confirmed in writing.
8. Offering of Notes; Restrictions on Transfer. Each of the
Initial Purchasers represents and warrants (as to itself only) that it is an
Accredited Investor. Each of the Initial Purchasers agrees with the Company (as
to itself only) that (i) it has not and will not engage in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act; and
(ii) it has and will solicit offers for the Notes only from, and will offer the
Notes only to (A) in the case of offers inside the United States, (x) persons
whom the Initial Purchasers reasonably believe to be QIBs or, if any such person
is buying for one or more institutional accounts for which such person is acting
as fiduciary or agent, only when such person has represented to the Initial
Purchasers that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in each case,
in transactions under Rule 144A or (y) a limited number of other institutional
investors reasonably believed by the Initial Purchasers to be Accredited
Investors that, prior to their purchase of the Notes, deliver to the Initial
Purchasers a letter containing the representations and agreements set forth in
Annex A to the Final Memorandum and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); provided, however, that in the case of this clause (B), in
purchasing such Notes such persons are deemed to have represented and agreed as
provided under the caption "Notice to Investors" contained in the Final
Memorandum.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to reasonable attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any
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<PAGE> 21
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained or incorporated by
reference in any Memorandum, or in any amendment thereof 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; provided, however, that the Company will not
be liable in any such case to the extent but only to the extent that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with the information
relating to the Initial Purchasers furnished to the Company in writing expressly
for use therein; and provided further, that this indemnity agreement with
respect to the Preliminary Memorandum shall not inure to the benefit of any
Initial Purchaser from whom the person asserting such losses, liabilities,
claims, damages or expenses purchased Notes, or any person controlling such
Initial Purchaser, if a copy of the Final Memorandum (as then amended or
supplemented if the Company shall have furnished any such amendments thereof or
supplements thereto, but excluding documents incorporated or deemed to be
incorporated by reference therein) was not sent or given by or on behalf of the
Initial Purchasers to such person at or prior to the written confirmation of the
sale of such Notes to such person and if the Final Memorandum (as so amended or
supplemented, but excluding documents incorporated or deemed to be incorporated
by reference therein) would have corrected the defect giving rise to such loss,
liability, claim, damage or expense, it being understood that this proviso shall
have no application if such defect shall have been corrected in a document which
is incorporated or deemed to be incorporated by reference in the Final
Memorandum. This indemnity agreement will be in addition to any liability which
the Company may otherwise have including under this Agreement.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless the Company, each of the directors of the Company
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of material fact contained in any Memorandum or in any amendment thereof 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, in each case to the
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<PAGE> 22
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with the information relating to the Initial Purchasers
furnished in writing to the Company expressly for use therein. This indemnity
will be in addition to any liability which any Initial Purchaser may otherwise
have including under this Agreement.
(c) Promptly after receipt by an indemnified party under
paragraph (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under paragraph (a) or (b) above
except to the extent it has been materially prejudiced by such failure; and
provided further, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have to an indemnified party
otherwise than under this Section 9. In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel reasonably
satisfactory to the indemnified party to take charge of the defense of such
action within a reasonable time after receipt of notice of commencement of the
action, or (iii) such indemnified party or parties shall have been advised by
counsel that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnified party or parties shall have the right to select
separate counsel to assume such legal defenses and to otherwise participate in
the defense of such action on behalf of the indemnified party or parties) in
which event the reasonable fees and expenses of one separate firm of attorneys
for all such indemnified parties (together with one firm of local counsel in
each appropriate jurisdiction) shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; provided, however, that such consent was not
unreasonably withheld. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution is being
sought under this Section 9 (whether or not the indemnified parties are actual
or potential parties
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<PAGE> 23
thereto), unless such settlement, compromise or consent (i) includes an
unconditional written release in form and substance satisfactory to the
indemnified parties of each indemnified party from all liability arising out of
such litigation, investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in the preceding paragraphs of this
Section 9 is for any reason held to be unavailable from any indemnifying party
or is insufficient to hold harmless a party indemnified thereunder, the Company
and the Initial Purchasers shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Initial
Purchasers, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers and directors of the Company) as incurred to which
the Company and one or more of the Initial Purchasers may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company and the Initial Purchasers from the offering of the Notes or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in the preceding paragraphs of this Section 9, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Initial Purchasers in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Initial Purchasers shall
be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of discounts and commissions but before deducting expenses)
received by the Company and (y) the discounts and commissions received by the
Initial Purchasers, respectively. The relative fault of the Company and of the
Initial Purchasers 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 or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), (i) in no case shall any
Initial Purchaser be required to contribute any amount that in the aggregate
exceeds the price at which the Notes were sold by such Initial Purchaser under
this Agreement, less the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of
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<PAGE> 24
such untrue or alleged untrue statement or omission or alleged omission, and
(ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The contribution
obligations of the Initial Purchasers hereunder are several in proportion to
their respective purchase commitments and not joint. For purposes of this
paragraph (d), each person, if any, who controls an Initial Purchaser within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Initial Purchaser, and each person, if
any, who controls the Company within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, and each officer and director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clauses (i) and (ii) of this paragraph (d). Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this paragraph (d)
or otherwise, except to the extent that such omission results in material
prejudice; provided, however, that the omission to so notify shall not relieve a
party from any liability which it may have to another party otherwise than under
this Section 9. No party shall be liable for contribution with respect to any
action or claim settled without its consent; provided, however, that such
consent was not unreasonably withheld.
10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Company, its officers and the Initial Purchasers set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of its officers or directors, the Initial Purchasers or any
other person referred to in Section 9 hereof and (ii) delivery of and payment
for the Notes. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6, 9 and 15 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchasers by notice given to the Company prior
to delivery of and payment for the Notes if there has occurred any of the
following: (i) any domestic or international event or act or occurrence has
materially disrupted, or in the opinion of the Initial Purchasers will in the
immediate future materially disrupt, the market for the Company's securities or
securities in general; or (ii) if trading on the New York or American Stock
Exchanges shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required, on the New York or American Stock Exchanges by the New York or
American Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction; or (iii) if a banking moratorium has been
declared by a state or federal authority
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<PAGE> 25
or if any new restriction materially adversely affecting the offering of the
Notes shall have become effective; or (iv) if, subsequent to the date of this
Agreement, there has been any downgrading in the rating of the Company's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential downgrading in the rating of the Company or of a possible
change in any such rating that does not indicate the direction of the possible
change; or (v) (A) if the United States becomes engaged in hostilities or there
is an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States or (B) if there
shall have been such change in political, financial or economic conditions if
the effect of any such event in (A) or (B) as in the judgment of the Initial
Purchasers makes it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Notes on the terms contemplated by the Final
Memorandum.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the front cover page, the fourth
paragraph on page 2, the fourth sentence under the caption "Offering Memorandum
Summary--The Offering--Absence of Market for the Notes" and in the third
paragraph and the fourth sentence of the fourth paragraph under the caption
"Plan of Distribution" in the Final Memorandum (to the extent such statements
relate to the Initial Purchasers) constitute the only information furnished by
the Initial Purchasers to the Company for the purposes of Sections 2(a) and 9
hereof.
13. Notices. All communications hereunder shall be in writing
and if sent to the Initial Purchasers, shall be mailed or delivered to Bear,
Stearns & Co. Inc., 245 Park Avenue, New York, New York 10167, Attention:
Capital Markets, 4th Floor; if sent to the Company, shall be mailed or delivered
to the Company at 228 South Main Street, Spring Grove, Pennsylvania 17362,
Attention: Treasurer.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 9 of this Agreement shall
also be for the benefit of any
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<PAGE> 26
person or persons who control the Initial Purchasers within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Initial Purchasers contained in Section 9 of this Agreement shall also be
for the benefit of the directors and officers of the Company and any person or
persons who control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Notes from the Initial
Purchasers will be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this
Agreement, and the terms and conditions set forth herein shall be governed by
and construed in accordance with the laws of the state of New York applicable to
contracts made and to be performed wholly therein, without giving effect to any
provisions thereof relating to conflicts of law.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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<PAGE> 1
EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT (this
"Agreement"), dated as of July 22, 1997, between
P. H. GLATFELTER COMPANY, a Pennsylvania
corporation (the "Company"), and BEAR, STEARNS &
CO. INC. and BT SECURITIES CORPORATION
(collectively, the "Initial Purchasers").
This Agreement is being entered into in connection with the
Purchase Agreement, dated the date hereof, between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of $150,000,000 aggregate principal amount of
the Company's 6 7/8% Notes Due 2007 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and their direct and indirect transferees. The
execution and delivery of this Agreement is a condition to the obligation of the
Initial Purchasers to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the
following terms shall have the following meanings:
"Additional Interest" shall have the meaning set
forth in Section 4(a) hereof.
"Advice" shall have the meaning set forth in the last
paragraph of Section 5 hereof.
"Agreement" shall have the meaning set forth in the
first introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth
in Section 2(b) hereof.
"Closing Date" shall mean the Closing Date set forth
in the Purchase Agreement.
"Company" shall have the meaning set forth in the
first introductory paragraph hereto.
"Consummate" or "Consummated" shall mean, for
purposes of this Agreement with respect to the Exchange Offer,
the delivery by the Company to the Security Registrar under
the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes
that were validly tendered by
<PAGE> 2
Holders thereof in accordance with the terms of the Exchange
Offer.
"Effectiveness Date" shall mean, with respect to any
Registration Statement, (a) if no Registration Statement has
been filed by the Company pursuant to this Agreement, the
120th calendar day after the Issue Date and (b) in each other
case (which may be applicable notwithstanding the consummation
of the Exchange Offer), the 120th calendar day after the
delivery of Shelf Notice.
"Effectiveness Period" shall have the meaning set
forth in Section 3(a) hereof.
"Event Date" shall have the meaning set forth in
Section 4(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Offer" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Registration Statement" shall have the
meaning set forth in Section 2(a) hereof.
"Holder" shall mean any holder of a Registrable Note
or Registrable Notes.
"Indemnified Person" shall have the meaning set forth
in Section 7(c) hereof.
"Indemnifying Person" shall have the meaning set
forth defined in Section 7(c) hereof.
"Indenture" shall mean the Indenture, dated as of
July 22, 1997, between the Company and The Bank of New York,
as trustee, pursuant to which the Notes are being issued, as
amended or supplemented from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall have the meaning set forth
in the first introductory paragraph hereto.
"Inspectors" shall have the meaning set forth in
Section 5(o) hereof.
2
<PAGE> 3
"Issue Date" shall mean the date on which the
original Notes were sold to the Initial Purchasers pursuant to
the Purchase Agreement.
"Majority Holders" shall have the meaning set forth
in Section 3(c) hereof.
"NASD" shall have the meaning set forth in Section
5(s) hereof.
"Notes" shall have the meaning set forth in the
second introductory paragraph hereto.
"Participant" shall have the meaning set forth in
Section 7(a) hereof.
"Participating Broker-Dealer" shall have the meaning
set forth in Section 2(b) hereof.
"Person" shall mean an individual, trustee,
corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union,
business association, firm or other legal entity.
"Private Exchange" shall have the meaning set forth
in Section 2(b) hereof.
"Private Exchange Notes" shall have the meaning set
forth in Section 2(b) hereof.
"Prospectus" shall mean the prospectus included in
any Registration Statement (including any prospectus subject
to completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other
amendments and supplements to the Prospectus, with respect to
the terms of the offering of any portion of the Registrable
Notes covered by such Registration Statement including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" shall have the meaning set forth
in the second introductory paragraph hereto.
"Records" shall have the meaning set forth in Section
5(o) hereof.
3
<PAGE> 4
"Registrable Notes" shall mean each Note upon
original issuance of the Notes and at all times subsequent
thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon
original issuance thereof and at all times subsequent thereto,
until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of
(i) a Registration Statement (other than, with respect to any
Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Registration Statement) covering such
Note, Exchange Note or Private Exchange Note, as the case may
be, has been declared effective by the SEC and such Note
(unless such Note was not tendered for exchange by the Holder
thereof), Exchange Note or Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, is sold in
compliance with Rule 144, or (iii) such Note, Exchange Note or
Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
"Registration Statement" shall mean any registration
statement of the Company, including, but not limited to, the
Exchange Registration Statement, that covers any of the
Registrable Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and
supplements to such registration statement, including
post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by
reference in such registration statement.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time,
or any similar rule (other than Rule 144A) or regulation
hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an
issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under
the Securities Act, as such Rule may be amended from time to
time, or any similar rule (other than Rule 144) or regulation
hereafter adopted by the SEC.
4
<PAGE> 5
"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the
SEC.
"SEC" shall mean the Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of
1933, as amended, and the rules and regulations of the SEC
promulgated thereunder.
"Shelf Notice" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth
in Section 3(a) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as
amended.
"Trustee" shall mean the trustee under the Indenture
and, if existent, the trustee under any indenture governing
the Exchange Notes and Private Exchange Notes (if any).
"Underwritten registration or underwritten offering"
shall mean a registration in which securities of the Company
are sold to an underwriter for reoffering to the public.
SECTION 2. Exchange Offer. (a) The Company agrees to use its
best efforts to file with the SEC an offer to exchange (the "Exchange Offer")
any and all of the Registrable Notes (other than the Private Exchange Notes, if
any) for a like aggregate principal amount of debt securities of the Company,
which are identical in all material respects to the Notes (the "Exchange Notes")
(and which are entitled to the benefits of the Indenture or a trust indenture
which is identical in all material respects to the Indenture (other than such
changes to the Indenture or any such identical trust indenture as are necessary
to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA), except that the Exchange Notes (other than Private
Exchange Notes, if any) (i) shall contain no restrictive legend thereon and (ii)
shall not contain any requirement by the Company to pay Additional Interest
(other than with respect to periods prior to the issuance of such Exchange
Notes). The Exchange Offer shall be registered under the Securities Act on the
appropriate form (the "Exchange Registration Statement") and shall comply with
all applicable
5
<PAGE> 6
tender offer rules and regulations under the Exchange Act. The Company agrees to
use its best efforts to (x) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 30 calendar days (or longer if
required by applicable law) after the date that notice of the Exchange Offer is
mailed to Holders; and (z) Consummate the Exchange Offer on or prior to the
150th day following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer or the issuance
of the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Registration Statement shall be deemed not to
have become effective for purposes of this Agreement. Each Holder who
participates in the Exchange Offer will be required to represent that any
Exchange Notes received by it will be acquired in the ordinary course of its
business, that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to participate in any
distribution of the Exchange Notes in violation of the provisions of the
Securities Act, and that such Holder is not an affiliate of the Company within
the meaning of the Securities Act. Upon consummation of the Exchange Offer in
accordance with this Section 2, the Company shall have no further obligation to
register Registrable Notes (other than Private Exchange Notes and other than in
respect of any Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof. No securities other than the Exchange Notes shall
be included in the Exchange Registration Statement.
(b) The Company shall include within the Prospectus contained
in the Exchange Registration Statement a section entitled "Plan of
Distribution," which section shall be reasonably acceptable to the Initial
Purchasers, and which shall contain a summary statement of the positions taken
or policies made by the Staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"), whether
such positions or policies have been publicly disseminated by the Staff of the
SEC or such positions or policies, in the judgment of counsel for the Initial
Purchasers, represent the prevailing views of the Staff of the SEC, including a
statement that any broker-dealer who receives Exchange Notes for Registrable
Notes pursuant to the Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes, but such "Plan of
Distribution" section shall not name any such Participating Broker-Dealer or
disclose the amount of Notes held
6
<PAGE> 7
by any such Participating Broker-Dealer except to the extent required by the SEC
as a result of a change in policy after the date of this Agreement.
If any Participating Broker-Dealer participates in the
Exchange Offer and notifies the Company or causes the Company to be notified in
writing that it is a Participating Broker-Dealer within 30 days after the last
date for which exchanges are accepted pursuant to the Exchange Offer, the
Company shall use its reasonable efforts to keep the Exchange Registration
Statement effective and to amend and supplement the Prospectus contained
therein, in order to permit such Prospectus to be lawfully delivered by any
Participating Broker-Dealer subject to the prospectus delivery requirements of
the Securities Act for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Notes; provided,
however, that such period shall not exceed 180 days after the last date for
which exchanges are accepted pursuant to the Exchange Offer (or such shorter
period when all Exchange Notes received by Participating Broker-Dealers in
exchange for Registrable Notes acquired for their own account as a result of
market-making or other trading activities have been disposed of by such
Participating Broker-Dealers or such longer period if extended pursuant to the
last paragraph of Section 5 hereof) (the "Applicable Period"); and Participating
Broker-Dealers shall not be authorized by the Company to, and shall not, deliver
such Prospectus after such period in connection with resales contemplated by
this Section 2(b) or otherwise.
If, prior to the last date for which exchanges are accepted
pursuant to the Exchange Offer, the Initial Purchasers hold any Notes acquired
by them and having the status of an unsold allotment in the initial
distribution, the Company shall, upon the request of any of the Initial
Purchasers, simultaneously with the delivery of the Exchange Notes in the
Exchange Offer issue and deliver to the Initial Purchasers in exchange (the
"Private Exchange") for such Notes held by the Initial Purchasers a like
principal amount of debt securities of the Company that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes) except
for the placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from July 22, 1997.
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In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(iii) 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 Exchange Offer shall remain open; and
(iv) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Notes or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company; and
(iii) issue, and cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, either Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that (A) the
Exchange Notes shall not be subject to the transfer restrictions applicable to
the Notes or the requirement of the Company to pay Additional Interest thereon
and (B) the Private Exchange Notes shall be subject to the transfer restrictions
applicable to the Notes. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter.
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<PAGE> 9
(c) If (i) because of any change in law or in currently
prevailing interpretations of the Staff of the SEC, the Company is not permitted
to effect an Exchange Offer, (ii) the Exchange Offer is not Consummated within
150 days of the Issue Date, (iii) any holder of Private Exchange Notes so
requests at any time after the consummation of the Private Exchange or (iv) in
the case of any Holder that participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under federal securities laws (other than due solely to the status
of such Holder as an affiliate of the Company within the meaning of the
Securities Act), then the Company shall promptly deliver written notice thereof
(the "Shelf Notice") to the Trustee and, in the case of clauses (i) and (ii),
all Holders, in the case of clause (iii), the Holders of the Private Exchange
Notes and, in the case of clause (iv), the affected Holder, and shall file a
Shelf Registration pursuant to Section 3 hereof.
SECTION 3. Shelf Registration. If a Shelf Notice is delivered as
contemplated by Section 2(c) hereof, then:
(a) Shelf Registration. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all the Registrable Notes (the "Shelf Registration"). The
Shelf Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in the manner or
manners designated by them. The Company shall not permit any securities other
than the Registrable Notes to be included in the Shelf Registration.
The Company shall use its best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and shall use its reasonable efforts to keep the Shelf
Registration continuously effective under the Securities Act until the date
which is two years from the Issue Date, subject to extension pursuant to the
last paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when all Registrable Notes covered by the Shelf Registration have
been sold in the manner set forth and as contemplated in the Shelf Registration.
(b) Withdrawal of Stop Orders. If the Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all the securities registered
thereunder), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
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<PAGE> 10
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount (the
"Majority Holders") of the Registrable Notes covered by such Registration
Statement or by any underwriter of such Registrable Notes.
SECTION 4. Additional Interest. (a) The Company and the Initial
Purchasers agree that the Holders of Registrable Notes will suffer damages if
the Company fails to fulfill its obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. The Company agrees under the Notes and the Indenture to pay
additional interest on the Notes ("Additional Interest"), as liquidated damages,
under the circumstances and to the extent set forth below:
(i) if (A) neither the Exchange Registration Statement nor
the Shelf Registration is declared effective by the SEC on or prior to
the relevant Effectiveness Date or (B) notwithstanding that the Company
has Consummated or will Consummate the Exchange Offer, the Company is
required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date
in respect of such Shelf Registration, then, for the first 90 days
commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Notes included or
which should have been included in such Registration Statement over and
above the stated interest at a rate of 0.25% per annum, such Additional
Interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period; and
(ii) if (A) the Company has not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 150th day after the Issue Date or (B) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time during the
Effectiveness Period (other than after such time as all Notes have been
disposed of thereunder), then Additional Interest shall accrue on the
principal amount of the Notes over and above the stated interest at a
rate of 0.25% per annum for the first 90 days commencing on (x) the
151st day after the Issue Date with respect to the Notes validly
tendered and not exchanged by the Company, in the case of (A) above, or
(y) the day such Shelf Registration ceases to
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<PAGE> 11
be effective in the case of (B) above (it being understood and agreed
that, notwithstanding any provision to the contrary, so long as any
Note which is the subject of a Shelf Notice is then covered by an
effective Shelf Registration Statement, no Additional Interest shall
accrue on such Note), such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period;
provided, however, that the Additional Interest rate on any affected Note may
not exceed at any one time in the aggregate 1.00% per annum; provided further,
however, that (1) upon the effectiveness of the Exchange Registration Statement
or the Shelf Registration (in the case of clause (i) of this Section 4(a)) or
(2) upon the exchange of Exchange Notes for all Notes validly tendered and not
validly withdrawn (in the case of clause (ii)(A) of this Section 4(a)) or upon
the effectiveness of the Shelf Registration which had ceased to remain effective
(in the case of (ii)(B) of this Section 4(a)), Additional Interest on the
affected Notes as a result of such clause (or the relevant subclause thereof),
as the case may be, shall cease to accrue.
(b) As provided in the Indenture, the Company shall notify the
Trustee within three business days after each and every date on which an event
occurs in respect of which Additional Interest is required to be paid (an "Event
Date") any amounts of Additional Interest will be payable to the Holders of
affected Notes in cash semiannually on each January 15 and July 15 (to the
holders of record on the January 1 and July 1 immediately preceding such dates),
commencing with the first such date occurring after any such Additional Interest
commences to accrue the amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the principal amount of
the affected Registrable Notes of such Holders, multiplied 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, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
SECTION 5. Registration Procedures. In connection with the filing
of any Registration Statement pursuant to Sections 2 or 3 hereof, the Company
shall effect such registration(s) to permit the sale of the securities covered
thereby in accordance with the intended method or methods of disposition
thereof, and pursuant thereto and in connection with any Registration Statement
filed by the Company hereunder, the Company shall:
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<PAGE> 12
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof, to use
its best efforts to cause each such Registration Statement to become
effective and to use its reasonable efforts to cause such Registration
Statement to remain effective as provided herein; provided, however,
that, if (i) such filing is pursuant to Section 3 hereof, or (ii) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall, if requested, furnish to and afford the
Holders of the Registrable Notes covered by such Registration Statement
or each such Participating Broker-Dealer, as the case may be, one
counsel selected by the Majority Holders (the "Majority Counsel") and
the managing underwriters of an underwritten offering (and their
counsel, if any) of Registrable Notes, if any, a reasonable opportunity
to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed (in each case at least five business days
prior to such filing), provided that the Company shall only be liable
for the fees and expenses of such counsel to the extent provided in
Section 6 hereof. The Company shall not file any Registration Statement
or Prospectus or any amendments or supplements thereto in respect of
which the Holders must be afforded an opportunity to review prior to
the filing of such document, if the Majority Holders of the Registrable
Notes covered by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, the Majority Counsel, or the
managing underwriters (or their counsel, if any), if any, shall
reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period or until consummation of
the Exchange Offer, as the case may be; cause the related Prospectus to
be supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale
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<PAGE> 13
of any securities being sold by a Participating Broker-Dealer covered
by any such Prospectus; the Company will be deemed not to have used its
reasonable efforts to cause the Exchange Offer Registration Statement
or any Shelf Registration Statement, as the case may be, to remain
effective during the Applicable Period or the Effectiveness Period, as
the case may be, if the Company voluntarily takes any action that would
result in the Holder of Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not being
able to sell such Registrable Notes or Exchange Notes, as the case may
be, during that period unless (i) such action is, in the reasonable
judgment of the Company, required by applicable law (including any
interpretation of the SEC) or (ii) such action is taken by the Company
in good faith and for valid business reasons (not including avoidance
of the Company's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company promptly complies with
the requirements of Section 5(k) hereof and the last paragraph of this
Section 5;
(c) if (i) a Shelf Registration is filed pursuant to Section 3
hereof, or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, the Majority Counsel and the
managing underwriters of an underwritten offering of Registrable Notes
and their counsel, if any, promptly (but in any event within three
business days) (A) when a Prospectus or any supplement thereto or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such notice
a written statement that any Holder may, upon request, obtain, at the
sole expense of the Company, one conformed copy of such Registration
Statement or post-effective amendment including financial statements
and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (B) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (C)
if at any time when a prospectus is required by the Securities Act to
be delivered in connection with sales of the Registrable Notes or
resales of Exchange Notes by Participating Broker-Dealers upon written
notice by any such Participating Broker-Dealer of a resale, the
representations
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<PAGE> 14
and warranties of the Company contained in any agreement (including
any underwriting agreement), contemplated by Section 5(n) hereof cease
to be true and correct, (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the initiation or threatening of any proceeding for such purpose, (E)
of the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in
or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in
the case of the Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
and (F) of the determination by the Company that a post-effective
amendment to a Registration Statement would be appropriate;
(d) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement or the
qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes for sale in any jurisdiction as
soon as practicable;
(e) if a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters (if any), or
the Holders of a majority in principal amount of the Registrable Notes
being sold in connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or underwriters (if any), such
Holders, or counsel for any of them reasonably request to be included
therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective
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<PAGE> 15
amendment, and (iii) supplement or make amendments to such Registration
Statement;
(f) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, furnish
to each selling Holder of Registrable Notes and to each such
Participating Broker-Dealer who so requests, to the Majority Counsel
and to each managing underwriter of an underwritten public offering of
Registrable Notes and their counsel, if any, at the sole expense of the
Company, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits;
(g) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, deliver
to each selling Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, the Majority Counsel, and to the
underwriters, if any, and such underwriters' counsel, at the sole
expense of the Company, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject
to the last paragraph of this Section 5, the Company hereby consents to
the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes covered by, or the sale by
Participating Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto;
(h) prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its reasonable efforts to
register or qualify such Registrable Notes (and to cooperate with
selling
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<PAGE> 16
Holders of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, the Majority Counsel, the managing underwriter or
underwriters, if any, and such underwriters' counsel in connection with
the registration or qualification (or exemption from such
reregistration or qualification) of such Registrable Notes) for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters of an
underwritten offering of Registrable Notes shall reasonably request in
writing; provided, however, that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered other
than through an underwritten offering, the Company agrees to cause its
counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject or (C) subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject;
(i) if a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
(except any customary legend borne by securities held through The
Depository Trust Company or any similar depository) and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such Registrable Notes to be in such denominations (consistent with the
provisions of the Indenture and the officers' certificate establishing
the form and terms of the Notes pursuant to the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may reasonably request;
(j) use its reasonable efforts to cause the Registrable Notes
covered by the Registration Statement to
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<PAGE> 17
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the Holders thereof or the
underwriter or underwriters, if any, to dispose of such Registrable
Notes, except as may be required solely as a consequence of the nature
of a selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals;
(k) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(ii)(E) or 5
(c)(ii)(F) hereof, as promptly as practicable prepare and (subject to
Section 5(a) hereof) file with the SEC, at the sole expense of the
Company, a supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Notes being sold thereunder or to the
purchasers of the Exchange Notes to whom such Prospectus will be
delivered by a Participating Broker-Dealer, any such Prospectus will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(l) use its reasonable efforts to cause the Registrable Notes
covered by a Registration Statement or the Exchange Notes, as the case
may be, to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the
Exchange Notes, as the case may be, or the managing underwriter or
underwriters, if any;
(m) prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with certificates for the Registrable Notes or Exchange Notes, as the
case may be, in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be;
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<PAGE> 18
(n) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten offerings and take all such other appropriate actions as
are reasonably requested in order to expedite or facilitate the
registration or disposition of such Registrable Notes, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, if
requested by (x) any Initial Purchaser, in the case where an Initial
Purchaser holds Notes acquired by it as part of the initial
distribution and (y) other Holders of Notes covered thereby, (i) make
such representations and warranties to, and covenants with, Holders of
such Registrable Notes and the underwriters (if any) with respect to
the business of the Company and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings of debt
securities with similar credit ratings to the Notes, and confirm the
same in writing if and when requested; (ii) obtain the written opinion
of counsel to the Company (which may be the Company's General Counsel)
and written updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters (if any) and
the Majority Holders of Registrable Notes covered by such Registration
Statement, addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities with similar credit ratings
to the Notes and such other matters as may be reasonably requested by
the managing underwriter or underwriters or the Majority Holders of
Registrable Notes covered by such Registration Statement; (iii) obtain
"cold comfort" letters and updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included or incorporated by reference in the Registration
Statement), addressed to each of the underwriters, such letters to be
in customary form and covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten offerings of
debt securities with similar credit ratings to the Notes and such other
matters as reasonably requested by the managing underwriter or
underwriters; and (iv) if an underwriting agreement is entered into,
the same shall contain indemnification provisions and procedures no
less favorable than those set
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<PAGE> 19
forth in Section 7 hereof (or such other provisions and procedures
acceptable to the Majority Holders of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section, including, without limitation, such underwriters and selling
Holders. The above shall be done at the closing under such underwriting
agreement, or as and to the extent required thereunder;
(o) if (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, and to
the extent customary in connection with a due diligence investigation
for an offering of debt securities with a similar credit rating, make
available for inspection by representatives approved by the Majority
Holders of such Registrable Notes being sold, or such Participating
Broker-Dealers, as the case may be, any underwriter participating in
any such disposition of Registrable Notes, if any, one counsel to the
underwriters, if any (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities. Records which the Company determines, in
good faith, to be confidential and any Records which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii)
the release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving
this Agreement, or any transactions contemplated hereby or arising
hereunder, or (iv) the information in such Records has been made
generally available to the public. Each selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will
be required to agree that information obtained by it as a result of
such inspections shall be deemed confidential and shall not be used by
it as the basis for
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<PAGE> 20
any market transactions in the securities of the Company unless and
until such information is generally available to the public. Each
selling Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Company's sole expense;
(p) provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and use its reasonable efforts
to cause the Indenture or the trust indenture provided for in Section
2(a) hereof, as the case may be, to be qualified under the TIA not
later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use its reasonable efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner;
(q) comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(r) in the case of an Exchange Offer or a Private Exchange,
upon delivery of the Registrable Notes by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall mark, or cause to be marked, on such Registrable Notes
that such
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<PAGE> 21
Registrable Notes are being canceled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; in no event shall
such Registrable Notes be marked as paid or otherwise satisfied;
(s) cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD");
(t) in the case of any Exchange Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers, if requested by any
such Initial Purchasers or such other representative of the
Participating Broker-Dealers, on behalf of the Participating
Broker-Dealers, upon consummation of the Exchange Offer (i) an opinion
of counsel in form and substance reasonably satisfactory to the Initial
Purchasers or such other representative of the Participating
Broker-Dealers, covering such matters customarily covered in opinions
requested in connection with Exchange Registration Statements and such
other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary
qualifications and exceptions), (ii) an officers' certificate
containing certifications substantially similar to those set forth in
Section 7(f) of the Purchase Agreement and such additional
certifications as are customarily delivered in a public offering of
debt securities and (iii) as well as upon the effectiveness of the
Exchange Registration Statement, a "cold comfort" letter, in each case,
in customary form if permitted by Statement on Auditing Standards No.
72; and
(u) use its reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Notes covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any Registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed
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<PAGE> 22
in order to make the information previously furnished to the Company by such
seller not materially misleading.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, that, upon
actual receipt of any notice from the Company of the happening of any event of
the kind described in Section 5 (c)(ii)(B), 5 (c)(ii)(D), 5 (c)(ii)(E), or 5
(c)(ii)(F) hereof, such Holder will forthwith discontinue disposition of such
Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company shall give any such
notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Notes covered by such Registration Statement or Exchange Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
SECTION 6. Registration Expenses. (a) All fees and expenses
incident to the performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation (i)
all registration and filing fees and expenses (including (A) fees with respect
to filings required to be made with the NASD in connection with an underwritten
offering (and, if applicable, the fees and expense of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD) and (B) fees and expenses of compliance with state securities or
Blue Sky laws (including reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including expenses of printing certificates
for Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company
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<PAGE> 23
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Majority Holders of the
Registrable Notes included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Company and,
subject to the provisions of Section 6(b) hereof, reasonable fees and
disbursements of counsel for the sellers of Registrable Notes, (v) fees and
disbursements of all independent certified public accountants of the Company
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), (vi) rating agency fees, if any, and any
fees associated with making the Registrable Notes or Exchange Notes eligible for
trading through The Depository Trust Company, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees and expenses of
all other Persons retained by the Company, (ix) internal expenses of the Company
(including all salaries and expenses of officers and employees of the Company
performing legal or accounting duties), (x) the expense of any annual audit,
(xi) the fees and expenses of the Trustee, and any exchange agent or custodian,
(xii) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange or an automated quotation
system, if applicable, and (xiii) the expenses relating to printing, word
processing and distributing all Registration Statements, any underwriting
agreement, indentures and any other documents necessary in order to comply with
this Agreement.
(b) The Company shall (i) reimburse the Holders of the
Registrable Notes being registered pursuant to this Agreement for the reasonable
fees and disbursements, in an aggregate amount not to exceed $25,000, of not
more than one counsel (in addition to appropriate local counsel) chosen by the
Majority Holders of the Registrable Notes to be included in such Registration
Statement and (ii) reimburse out-of-pocket expenses (other than legal expenses)
of Holders of Registrable Notes incurred in connection with the registration and
sale of the Registrable Notes pursuant to a Shelf Registration or in connection
with the exchange of Registrable Notes pursuant to the Exchange Offer.
SECTION 7. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder of Registrable Notes offered pursuant to a Shelf
Registration Statement and each Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, the affiliates, directors, officers, agents,
representatives and employees of each such Person or its affiliates, and each
other Person, if any, who controls any such Person or its affiliates within the
meaning of either Section 15 of the Securities Act or Section 20(a) of the
Exchange Act (each,
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<PAGE> 24
a "Participant"), from and against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including reasonable attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference in any Registration
Statement pursuant to which the offering of such Registrable Notes or Exchange
Notes, as the case may be, is registered, or in any supplement thereto or
amendment thereof, or any related Prospectus, or any supplement thereto or
amendment thereof, or any related preliminary Prospectus, 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; provided, however, that the Company will not be liable to any
Participant in any such case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to such Participant furnished to the Company in writing by
or on behalf of such Participant expressly for use therein; provided further,
however, that such indemnity agreement with respect to any preliminary
Prospectus shall not inure to the benefit of any Participant from whom the
Person asserting any loss, liability, claim, damage or expense purchased
Registrable Notes or Exchange Notes, as the case may be, if a copy of the
Prospectus filed as part of an effective Registration Statement (as then amended
or supplemented and furnished by the Company to such Participant) was not sent
or given by or on behalf of such Participant to such Person, if such is required
by law, at or prior to the sale of such Registrable Notes or Exchange Notes, as
the case may be, and if such Prospectus (as so amended or supplemented) would
have cured the defect giving rise to such loss, liability, claim, damage or
expense. This indemnity agreement will be in addition to any liability which the
Company may otherwise have, including under this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors and officers and each
Person who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but only with
reference to information relating to such Participant furnished
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<PAGE> 25
to the Company in writing by or on behalf of such Participant expressly for use
in any Registration Statement or Prospectus, any amendment or supplement
thereto, or any preliminary prospectus or (ii) with respect to any untrue
statement or representation made by such Participant in writing to the Company
pursuant to Section 2(a) hereof.
(c) Promptly after receipt by any Person in respect of which
indemnity may be sought under subsection (a) or (b) above of notice of the
commencement of any action, such Person (the "Indemnified Person") shall, if a
claim in respect thereof is to be made against the Person whom such indemnity
may be sought (the "Indemnifying Person") under such subsection, notify each
Indemnifying Person against whom indemnification is to be sought in writing of
the commencement thereof, provided, however, that failure to notify the
Indemnifying Person shall not relieve it from any liability which it may have
under paragraph (a) or (b) above except to the extent it has been materially
prejudiced by such failure; and provided further that the failure to notify the
Indemnifying Person shall not relieve it from any liability which it may have to
an Indemnified Person otherwise than under this Section 7. In case any such
action is brought against any Indemnified Person, and it notifies an
Indemnifying Person of the commencement thereof, the Indemnifying Person will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the Indemnified Person promptly after receiving the
aforesaid notice from such Indemnified Person, to assume the defense thereof
with counsel satisfactory to such Indemnified Person. Notwithstanding the
foregoing, the Indemnified Person or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
Indemnifying Persons in connection with the defense of such action, (ii) the
Indemnifying Persons shall not have employed counsel to take charge of the
defense of such action within a reasonable time after receipt of notice of
commencement of the action, or (iii) such Indemnified Person or Persons shall
have been advised by counsel that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
Indemnifying Persons (in which case the Indemnifying Persons shall have the
right to select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of the Indemnified Person or
Persons), in which event the reasonable fees and expenses of one separate firm
of attorneys for all such Indemnified Persons (together with one firm of local
counsel in each appropriate jurisdiction) shall be borne by the Indemnifying
Persons. Anything in this subsection to the contrary notwithstanding, an
Indemnifying Person shall not be liable for any settlement of any claim or
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<PAGE> 26
action effected without its written consent; provided, however, that such
consent was not unreasonably withheld. No Indemnifying Person shall, without the
prior written consent of the Indemnified Persons, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution is being sought under this Section 7 (whether or not the
Indemnified Persons are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional written release
in form and substance satisfactory to the Indemnified Persons from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person unless such statement is
otherwise consented to in writing by the Indemnified Party.
(d) In order to provide for contribution in circumstances in
which the indemnification provided for in the preceding paragraphs of this
Section 7 is for any reason held to be unavailable from any Indemnifying Person
or is insufficient to hold harmless an Indemnified Person thereunder, each
Indemnifying Person shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Indemnified
Persons, who may also be liable for contribution, including persons who control
the Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, officers and directors of the Company) as incurred to
which the Indemnified Party may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Indemnifying Person
or Persons, on the one hand, and the Indemnified Person or Persons on the other
from the offering of the Notes or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
Indemnifying Person not having received notice as provided in the preceding
paragraphs of this Section 7, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Indemnifying Person or Persons, on the one hand, and the Indemnified Person
or Persons on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the parties
shall be determined by reference to, among other things, whether the untrue or
alleged
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<PAGE> 27
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The parties
agree that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation (even if the Participants
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), (i) in no case
shall a Participant be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from sales of Registrable Notes
or Exchange Notes, as the case may be, exceeds the amount of damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue statement or alleged untrue statement or omission or alleged omission,
and (ii) 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 (d), each Person, if any, who controls a Participant within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
shall have the same rights to contribution as such Participant, and each Person,
if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, each director and officer
of the Company shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
paragraph (d) or otherwise, except to the extent that such omission results in
material prejudice; provided, however, that the omission to so notify shall not
relieve a party from any liability which it may have to another party otherwise
than under this Section 7. No party shall be liable for contribution with
respect to any action or claim settled without its written consent; provided,
however, that such consent was not unreasonably withheld.
SECTION 8. Rule 144 and Rule 144A. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder in a
timely manner in accordance with the requirements of the Securities Act and the
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<PAGE> 28
Exchange Act and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Registrable Notes, make
publicly available (i) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such forms, including for each a
"Management's Discussion and Analysis of Results of Operations and Financial
Condition" and, with respect to the annual information only, a report thereon by
the Company's independent certified public accountants and (ii) all reports that
would be required to be filed with the Commission on Form 8-K if the Company
were required to file such reports. The Company further covenants for so long as
any Registrable Notes remain outstanding, to make available to any Holder or
beneficial owner of Registrable Notes in connection with any sale thereof and
any prospective purchaser of such Registrable Notes from such Holder or
beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Notes pursuant to
Rule 144A.
SECTION 9. Underwritten Registration. If any of the Registrable Notes
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders of such Registrable
Notes included in such offering and reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 10. Miscellaneous. (a) No Inconsistent Agreements. The Company
has not entered, as of the date hereof, and the Company will not, after the date
of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. The Company has not entered and the Company will not enter into any
agreement with respect to any of its securities which will grant to any Person
piggy-back registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Company will
not, directly or indirectly, take any action with respect to the Registrable
Notes as a class that would adversely
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<PAGE> 29
affect the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold by
such Holders pursuant to such Registration Statement; provided, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including
any notices or other communications to the Trustee) provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, NY 10167
Facsimile No: (212) 272-6227
Attention: Capital Markets, 4th Floor
with a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, NY 10038-4982
Facsimile No.: (212) 806-6006
Attention: Stuart H. Coleman, Esquire
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<PAGE> 30
(ii) if to the Initial Purchasers, at the address specified
in Section 10(d)(i);
(iii) if to the Company, as follows:
P. H. Glatfelter Company
228 South Main Street
Spring Grove, PA 17362
Facsimile No.: (717) 225-6834
Attention: Mr. Robert S. Wood
Secretary and Treasurer
with copies to:
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Facsimile No.: (215) 864-8999
Attention: Morris Cheston, Jr., Esquire
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
to the extent such successor or assign holds Registrable Notes.
(f) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the
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<PAGE> 31
State of New York, as applied to contracts made and performed wholly within the
State of New York, without regard to principles of conflicts of law.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third-party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
P. H. GLATFELTER COMPANY
By: /s/ R. P. Newcomer
--------------------------------------
Name: Robert P. Newcomer
Title: Sr. Vice President & CFO
BEAR, STEARNS & CO. INC.
BT SECURITIES CORPORATION
By: BEAR, STEARNS & CO. INC.
By: /s/ L.G. Sachs
--------------------------------------
Name: Lee G. Sachs
Title: Senior Managing Director
<PAGE> 1
EXHIBIT 5.1
[BALLARD SPAHR ANDREWS & INGERSOLL LETTERHEAD]
September 24, 1997
P. H. Glatfelter Company
228 South Main Street
Spring Grove, PA 17362
Re: Registration Statement on Form S-4 for
P. H. Glatfelter Company (the "Company")
Ladies and Gentlemen:
We have acted as your counsel and are rendering this opinion
in connection with the Company's proposed offer to exchange $1,000 principal
amount of its 6 7/8% Notes due 2007, Series B (the "Exchange Notes"), for each
$1,000 principal amount of its outstanding 6 7/8% Notes due 2007 (the "Old
Notes"), of which $150,000,000 aggregate principal amount is outstanding. The
Old Notes were issued, and the Exchange Notes will be issued, under an Indenture
dated as of July 22, 1997 (the "Indenture") by and between the Company and The
Bank of New York, as Trustee (the "Trustee").
In connection with this opinion, we have examined the
originals or copies, certified or otherwise identified to our satisfaction, of
the Registration Statement on Form S-4 (the "Exchange Offer Registration
Statement") filed on this date pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), and all exhibits thereto, the Indenture, the
Articles of Incorporation, as amended, and By-laws, as amended, of the Company
and certain resolutions adopted by the Board of Directors of the Company
relating to the authorization and issuance of the Exchange Notes. We have also
examined the form of the Exchange Notes, and we assume that the Exchange Notes
will be authenticated by the Trustee and, as authenticated, will conform to the
form thereof examined by us. In addition, we have made such inquiries of
officers and representatives of the Company, have ascertained to our
satisfaction such other matters and have considered such matters of law as and
to the extent we have deemed necessary for the purposes of this opinion.
<PAGE> 2
P. H. Glatfelter Company
September 24, 1997
Page 2
In all cases, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to originals of all
documents submitted to us as certified, photostatic or conformed copies, the
authenticity of originals of all such latter documents, and the accuracy and
completeness of all records, information and statements submitted to us by
officers and representatives of the Company.
For the purpose of this opinion, we have also assumed that:
(1) the proposed exchange will be carried out on the basis set forth in the
Exchange Offer Registration Statement; (2) the Securities and Exchange
Commission shall have issued an order declaring effective the Exchange Offer
Registration Statement under the Securities Act; (3) the Exchange Notes will be
executed, authenticated and delivered as provided in the Indenture; (4)
requisite authorizations, approvals, consents or exemptions under the securities
laws of the various states and other jurisdictions of the United States shall
have been obtained; and (5) the Indenture under which the Exchange Notes shall
be issued will be qualified in accordance with the provisions of the Trust
Indenture Act of 1939, as amended.
Based upon the foregoing, we are of the opinion, so far as the
laws of Pennsylvania are concerned, that, subject to the foregoing assumptions,
when properly authenticated and delivered by the Trustee in accordance with the
Indenture, the Exchange Notes will be legally issued and binding obligations of
the Company.
We express no opinion as to the law of any jurisdiction other
than the federal law of the United States and the law of the Commonwealth of
Pennsylvania.
We hereby consent to the sole use of this opinion as an
exhibit to the Exchange Offer Registration Statement and to the use of our name
under the heading "Legal Matters" in the Prospectus included therein. This
opinion is not to be used, circulated, quoted, referred to or relied upon by any
other person or for any other purpose without our prior written consent.
Very truly yours,
/s/ BALLARD SPAHR ANDREWS & INGERSOLL
<PAGE> 1
EXHIBIT 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollar in thousands)
<TABLE>
<CAPTION>
Six Months
Ended
Year Ended December 31, June 30,
1992 1993 1994 1995 1996 1996 1997
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before
income taxes $90,761 $35,383 ($192,774) $107,612 $ 97,905 $49,598 $39,227
Add:
Interest on debt -- 2,824 6,364 10,265 9,308 4,644 4,699
------- ------- --------- -------- -------- ------- -------
Earnings as defined $90,761 $38,207 ($186,410) $117,877 $107,213 $54,242 $43,926
======= ======= ========= ======== ======== ======= =======
Fixed charges:
Interest on debt $ -- $ 2,824 $ 6,364 $ 10,265 $ 9,308 $ 4,644 $ 4,699
Capitalized Interest 88 4,138 3,066 -- -- -- --
------- ------- --------- -------- -------- ------- -------
Fixed charges as defined $ 88 $ 6,962 $ 9,430 $ 10,265 $ 9,308 $ 4,644 $ 4,699
======= ======= ========= ======== ======== ======= =======
Ratio of earnings to
fixed charges 1,031.4 5.5 ---(a) 11.5 11.5 11.7 9.3
======= ======= ========= ======== ======== ======= =======
</TABLE>
(a) Earnings were insufficient to cover fixed charges by $195,840,000.
Reflects a pre-tax charge for writedown of impaired assets of
$208,949,000.
For the purpose of computing the ratio of earnings to fixed charges, (1)
"earnings" consist of income before income taxes and interest on debt (excluding
interest capitalized during the period) and (2) "fixed charges" consist of total
interest on debt (including interest capitalized during the period.)
<PAGE> 1
EXHIBIT 15.1
LETTER IN LIEU OF CONSENT REGARDING REVIEW REPORT OF UNAUDITED INTERIM FINANCIAL
INFORMATION
P.H. Glatfelter Company:
We have reviewed, in accordance with standards established by the American
Institute of Certified Public Accountants, the unaudited condensed consolidated
financial statements of P.H. Glatfelter Company and subsidiaries for the periods
ended March 31, 1997 and 1996, and June 30, 1997 and 1996, as indicated in our
reports dated April 14, 1997 and July 16, 1997, respectively; because we did not
perform an audit, we expressed no opinion on that information.
We are aware that our reports referred to above, which are included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997 and June
30, 1997 are incorporated by reference in this Registration Statement on Form
S-4.
We are also aware that the aforementioned reports, pursuant to Rule 436(c) under
the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
Philadelphia, Pennsylvania
September 23, 1997
<PAGE> 1
EXHIBIT 21.1
SUBSIDIARIES OF P.H. GLATFELTER COMPANY
Ecusta Australia Pty. Limited
Ecusta Fibers Ltd.
Ecusta Export Trading Corp.
Glatfelter Investments, Inc.
The Glatfelter Pulpwood Company
Spring Grove Water Company
Glatfelter of Nevada
GWS Valuch, Inc.
Glenn-Wolfe, Inc.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
P.H. Glatfelter Company:
We consent to the incorporation by reference in this Registration Statement of
P.H. Glatfelter Company on Form S-4 of our report dated February 24, 1997,
appearing in the Annual Report on Form 10-K of P.H. Glatfelter Company for the
year ended December 31, 1996 and to the reference to us under the headings
"Selected Consolidated Financial Data" and "Experts" in the Prospectus, which is
part of this Registration Statement.
Philadelphia, Pennsylvania
September 23, 1997
<PAGE> 1
CONFORMED COPY
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
----------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
P.H. GLATFELTER COMPANY
(Exact name of obligor as specified in its charter)
Pennsylvania 23-0628360
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
228 South Main Street
Spring Grove, Pennsylvania 17362
(Address of principal executive offices) (Zip code)
----------------------
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New
York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE> 3
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-3-
<PAGE> 4
CONFORMED COPY
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 16th day of September, 1997.
THE BANK OF NEW YORK
By: /s/WALTER N. GITLIN
----------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
-4-
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business March 31, 1997, published in accordance with a
call made by the Federal Reserve Bank of this District pursuant to the
provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 8,249,820
Interest-bearing balances .......... 1,031,026
Securities:
Held-to-maturity securities ........ 1,118,463
Available-for-sale securities ...... 3,005,838
Federal funds sold and Securities pur-
chased under agreements to resell .... 3,100,281
Loans and lease financing
receivables:
Loans and leases, net of unearned
income ........................... 32,895,077
LESS: Allowance for loan and
lease losses ..................... 633,877
LESS: Allocated transfer risk
reserve........................... 429
Loans and leases, net of unearned
income, allowance, and reserve ... 32,260,771
Assets held in trading accounts ...... 1,715,214
Premises and fixed assets (including
capitalized leases) ................ 684,704
Other real estate owned .............. 21,738
Investments in unconsolidated
subsidiaries and associated
companies .......................... 195,761
Customers' liability to this bank on
acceptances outstanding ............ 1,152,899
Intangible assets .................... 683,503
Other assets ......................... 1,526,113
-----------
Total assets ......................... $54,746,131
===========
LIABILITIES
Deposits:
In domestic offices ................ $25,614,961
Noninterest-bearing ................ 10,564,652
Interest-bearing ................... 15,050,309
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 15,103,615
Noninterest-bearing ................ 560,944
Interest-bearing ................... 14,542,671
Federal funds purchased and Securities
sold under agreements to repurchase 2,093,286
Demand notes issued to the U.S. ......
Treasury ........................... 239,354
Trading liabilities .................. 1,399,064
Other borrowed money:
With remaining maturity of one year
or less .......................... 2,075,092
With remaining maturity of more than
one year ......................... 20,679
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,160,012
Subordinated notes and debentures .... 1,014,400
Other liabilities .................... 1,840,245
-----------
Total liabilities .................... 50,560,708
EQUITY CAPITAL
Common stock ......................... 942,284
Surplus .............................. 731,319
Undivided profits and capital
reserves ........................... 2,544,303
Net unrealized holding gains
(losses) on available-for-sale
securities ......................... ( 19,449)
Cumulative foreign currency transla-
tion adjustments ................... ( 13,034)
-----------
Total equity capital ................. 4,185,423
-----------
Total liabilities and equity
capital ........................... $54,746,131
===========
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Alan R. Griffith ]
J. Carter Bacot ]
Thomas A. Renyi ] Directors
<PAGE> 1
EXHIBIT 99.1
LETTER OF TRANSMITTAL
FOR
6 7/8% NOTES DUE 2007
OF
P. H. GLATFELTER COMPANY
PURSUANT TO THE EXCHANGE OFFER IN RESPECT OF
ANY AND ALL OUTSTANDING 6 7/8% NOTES DUE 2007
FOR
6 7/8% NOTES DUE 2007, SERIES B
PURSUANT TO THE PROSPECTUS DATED , 1997
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 1997 UNLESS THE EXCHANGE OFFER IS EXTENDED (THE "EXPIRATION
DATE"). TENDERS OF OLD NOTES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M.,
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Registered or Certified By Facsimile: By Hand or Overnight Courier:
Mail:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street - 7E 101 Barclay Street
New York, NY 10286 Confirm by Telephone: Corporate Trust Services Window
Attention: Reorganization (212) 815-2742 - Ground Level
Section,
Enrique Lopez New York, New York 10286
Attention: Reorganization
Section,
Enrique Lopez
</TABLE>
Delivery of this Letter of Transmittal to an address, or transmission via
facsimile, other than as set forth above will not constitute a valid delivery.
The instructions contained herein should be read carefully before this Letter of
Transmittal is completed.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE NOTES FOR THEIR OLD
NOTES PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW)
THEIR OLD NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
By execution hereof, the undersigned acknowledges receipt of the Prospectus
(the "Prospectus"), dated , 1997, of P. H. Glatfelter Company
(the "Issuer"), which, together with this Letter of Transmittal and the
instructions hereto (the "Letter of Transmittal"), constitute the Issuer's offer
(the "Exchange Offer") to exchange $1,000 principal amount of its 6 7/8% Notes
due 2007, Series B (the "Exchange Notes") that have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), pursuant to a
Registration Statement of which the Prospectus constitutes a part, for each
$1,000 principal amount of its outstanding 6 7/8% Notes due 2007 (the "Old
Notes"), upon the terms and subject to the conditions set forth in the
Prospectus.
This Letter of Transmittal is to be used by Holders if: (i) certificates
representing Old Notes are to be physically delivered to the Exchange Agent
herewith by Holders; (ii) unless an Agent's Message (as defined in the
accompanying Prospectus) is utilized, tender of Old Notes is to be made by
book-entry transfer to the
A-1
<PAGE> 2
Exchange Agent's account at The Depository Trust Company ("DTC") pursuant to the
procedures set forth in the Prospectus under "The Exchange Offer -- Procedures
for Tendering" by any financial institution that is a participant in DTC and
whose name appears on a security position listing as the owner of Old Notes
(such participants, acting on behalf of Holders, are referred to herein as DTC
Participants); or (iii) tender of Old Notes is to be made according to the
guaranteed delivery procedures set forth in the Prospectus under "The Exchange
Offer -- Guaranteed Delivery Procedures." Delivery of documents to DTC does not
constitute delivery to the Exchange Agent.
The term "Holder" with respect to the Exchange Offer means any person: (i)
in whose name Old Notes are registered on the books of the Issuer or any other
person who has obtained a properly completed bond power from the registered
Holder or (ii) whose Old Notes are held of record by DTC who arranges to deliver
such Old Notes by book-entry transfer at DTC.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
All capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Prospectus.
The instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance or for additional copies of the
Prospectus, this Letter of Transmittal or the Notice of Guaranteed Delivery may
be directed to the Exchange Agent. See Instruction 8 herein.
List below the Old Notes to which this Letter of Transmittal relates. If
the space provided below is inadequate, list the certificate numbers and
principal amounts on a separately executed schedule and affix the schedule to
this Letter of Transmittal. Tenders of Old Notes will be accepted only in
principal amounts equal to $1,000 or integral multiples thereof.
A-2
<PAGE> 3
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD NOTES
- ------------------------------------------------------------------------------------------------
AGGREGATE
CERTIFICATE PRINCIPAL
NUMBER(S)* AMOUNT
(ATTACH SIGNED TENDERED (IF
NAME AND ADDRESS(ES) OF HOLDER(S) LIST IF LESS
(PLEASE FILL IN, IF BLANK) NECESSARY) THAN ALL)**
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
--------------------------------
- ------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT OF OLD NOTES TENDERED
- ------------------------------------------------------------------------------------------------
* Need not be completed by Holders tendering by book-entry transfer.
** Need not be completed by Holders who wish to tender with respect to all Old Notes listed.
See Instruction 2.
- ------------------------------------------------------------------------------------------------
</TABLE>
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY DTC TO THE
EXCHANGE AGENT'S ACCOUNT AT DTC AND COMPLETE THE FOLLOWING:
NAME OF TENDERING INSTITUTION:
------------------------------------------------------------------------------
DTC BOOK-ENTRY ACCOUNT NO.:
------------------------------------------------------------------------------
TRANSACTION CODE NO.:
---------------------------------------------------------------------------
If Holders desire to tender Old Notes pursuant to the Exchange Offer and
(i) certificates representing such Old Notes are not lost but are not
immediately available, (ii) time will not permit this Letter of Transmittal,
certificates representing such Old Notes or other required documents, or an
Agent's Message in lieu thereof, to reach the Exchange Agent prior to the
Expiration Date or (iii) the procedures for book-entry transfer cannot be
completed prior to the Expiration Date, such Holders may effect a tender of such
Old Notes in accordance with the guaranteed delivery procedures set forth in the
Prospectus under "The Exchange Offer -- Guaranteed Delivery Procedures."
A-3
<PAGE> 4
[ ] CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
NAME(S) OF HOLDER(S) OF OLD NOTES:
-----------------------------------------------------------------------
WINDOW TICKET NO. (IF ANY):
- --------------------------------------------------------------------------------
DATE OF EXECUTION OF NOTICE OF GUARANTEED DELIVERY:
------------------------------------------------------
NAME OF ELIGIBLE INSTITUTION THAT GUARANTEED DELIVERY:
----------------------------------------------------
DTC BOOK-ENTRY ACCOUNT NO.:
------------------------------------------------------------------------------
IF DELIVERED BY BOOK-ENTRY TRANSFER,
NAME OF TENDERING INSTITUTION:
------------------------------------------------------------------------------
TRANSACTION CODE NO.:
---------------------------------------------------------------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
NAME:
----------------------------------------------------------------------------
ADDRESS:
----------------------------------------------------------------------------
LADIES AND GENTLEMEN:
Subject to the terms of the Exchange Offer, the undersigned hereby tenders
to the Issuer the principal amount of Old Notes indicated above. Subject to and
effective upon the acceptance for exchange of the principal amount of Old Notes
tendered in accordance with this Letter of Transmittal, the undersigned sells,
assigns and transfers to, or upon the order of, the Issuer all right, title and
interest in and to the Old Notes tendered hereby. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent its agent and
attorney-in-fact (with full knowledge that the Exchange Agent also acts as the
agent of the Issuer and as Trustee under the Indenture for the Old Notes and the
Exchange Notes) with respect to the tendered Old Notes with full power of
substitution to (i) deliver certificates for such Old Notes to the Issuer, or
transfer ownership of such Old Notes on the account books maintained by DTC,
together, in either such case, with all accompanying evidences of transfer and
authenticity to, or upon the order of, the Issuer and (ii) present such Old
Notes for transfer on the books of the Issuer and receive all benefits and
otherwise exercise all rights of beneficial ownership of such Old Notes, all in
accordance with the terms of the Exchange Offer. The power of attorney granted
in this paragraph shall be deemed irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, sell, assign and transfer the Old Notes tendered
hereby and that the Issuer will acquire good, marketable and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
not subject to any adverse claim, when the same are acquired by the Issuer. The
undersigned also acknowledges that this Exchange Offer is being made in reliance
upon an interpretation by the staff of the Securities and Exchange Commission
that the Exchange Notes issued in exchange for the Old Notes pursuant to the
Exchange Offer may be offered for sale, resold and otherwise transferred by
holders thereof (other than holders who are broker-dealers) without further
compliance with the registration and prospectus delivery provisions of the
Securities Act. However, any purchaser of Old Notes who is an affiliate of the
Company or who intends to participate in the Exchange Offer for the purpose of
distributing the Exchange Notes, or any broker-dealer who purchased the Old
Notes from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act, acknowledges that it (i) will not be able to
rely on the interpretation of the Staff set forth in the above-mentioned
no-action letters, (ii) will not be entitled to tender its Old Notes in the
Exchange Offer and (iii) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any sale or
transfer of the Old Notes unless such sale or transfer is made pursuant to an
exemption from such requirements. If the undersigned is not a broker-dealer, the
undersigned
A-4
<PAGE> 5
represents that it is not engaged in, and does not intend to engage in, a
distribution of the Exchange Notes. If the undersigned is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Old Notes, the
undersigned represents that such Old Notes were acquired as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus in connection with any resale of such Exchange Notes;
however, by so acknowledging and by delivering a prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
The undersigned represents that (i) it is not an affiliate of the Issuer,
(ii) the Exchange Notes to be received by it were acquired in the ordinary
course of its business and (iii) at the time of the Exchange Offer, it has no
arrangement with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Exchange Agent or the Issuer to be necessary or
desirable to complete the assignment and transfer of the Old Notes tendered
hereby.
For purposes of the Exchange Offer, the Issuer shall be deemed to have
accepted validly tendered Old Notes when, as and if the Issuer has given oral or
written notice thereof to the Exchange Agent. If any tendered Old Notes are not
accepted for exchange pursuant to the Exchange Offer for any reason,
certificates for any such unaccepted Old Notes will be returned (except as noted
below with respect to tenders through DTC), without expense, to the undersigned
at the address shown below or at a different address shown below or at a
different address as may be indicated under "Special Issuance Instructions" as
promptly as practicable after the Expiration Date.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors and
assigns.
The undersigned understands that tenders of Old Notes pursuant to the
procedures described under the caption "The Exchange Offer -- Procedures for
Tendering" in the Prospectus and in the instructions hereto will constitute a
binding agreement between the undersigned and the Issuer upon the terms and
subject to the conditions of the Exchange Offer.
Unless otherwise indicated under "Special Issuance Instructions," please
issue the certificates representing the Exchange Notes issued in exchange for
the Old Notes accepted for exchange and return any Old Notes not tendered or not
exchanged, in the name(s) of the undersigned (or in either such event in the
case of Old Notes tendered by DTC, by credit to the account at DTC). Similarly,
unless otherwise indicated under "Special Delivery Instructions," please send
the certificates representing the Exchange Notes issued in exchange for the Old
Notes accepted for exchange and any certificates for Old Notes not tendered or
not exchanged (and accompanying documents, as appropriate) to the undersigned at
the address shown below the undersigned's signatures, unless, in either event,
tender is being made through DTC. In the event that both "Special Issuance
Instructions" and "Special Delivery Instructions" are completed, please issue
the certificates representing the Exchange Notes issued in exchange for the Old
Notes accepted for exchange and return any Old Notes not tendered or not
exchanged in the name(s) of, and send said certificates to, the person(s) so
indicated. The undersigned recognizes that the Issuer has no obligation pursuant
to the "Special Issuance Instructions" and "Special Delivery Instructions" to
transfer any Old Notes from the name of the registered holder(s) thereof if the
Issuer does not accept for exchange any of the Old Notes so tendered.
Each Exchange Note will bear interest at the rate set forth on the cover
page of the Prospectus from the later of July 22, 1997 and the most recent
Interest Payment Date to which interest has been paid on the Exchange Notes or
on the Old Notes exchanged for the Exchange Notes, as the case may be, payable
semiannually on January 15 and July 15 in each year, commencing January 15,
1998, to the person in whose name the Exchange Note (or any predecessor Note) is
registered at the close of business on the January 1 or the July 1 next
preceding such Interest Payment Date whether or not such January 1 or July 1 is
a Business Day. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. Holders of Old Notes whose Old Notes are
accepted for exchange will not receive accrued interest on such Old Notes for
A-5
<PAGE> 6
any period from and after the last Interest Payment Date to which interest has
been paid or duly provided for on such Old Notes prior to the original issue
date of the Exchange Notes or, if no such interest has been paid or duly
provided for, will not receive any accrued interest on such Old Notes, and will
be deemed to have waived the right to receive any interest on such Old Notes
accrued from and after such Interest Payment Date or, if no such interest has
been paid or duly provided for, from and after July 22, 1997.
A-6
<PAGE> 7
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF OLD NOTES REGARDLESS
OF WHETHER OLD NOTES ARE BEING PHYSICALLY DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the Holder(s) of Old Notes
exactly as their name(s) appear(s) on certificate(s) for Old Notes or, if
tendered by a participant in DTC, exactly as such participant's name appears on
a security position listing as the owner of Old Notes, or by person(s)
authorized to become registered Holder(s) by endorsements and documents
transmitted with this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer or other person
acting in a fiduciary or representative capacity, such person must set forth his
or her full title below under "Capacity" and submit evidence satisfactory to the
Issuer of such person's authority to so act. See Instruction 3 herein.
If the signature appearing below is not of the registered Holder(s) of the
Old Notes, then the registered Holder(s) must sign a valid proxy.
<TABLE>
<S> <C>
X Date:
- ------------------------------------------- -------------------------------------------
X Date:
- ------------------------------------------- -------------------------------------------
SIGNATURE(S) OF HOLDER(S) OR
AUTHORIZED SIGNATORY
Name(s): Address:
- ----------------------------------------- ------------------------------------------
-------------------------------- ----------------------------------
(PLEASE PRINT) (INCLUDING ZIP CODE)
Capacity: Area Code and Telephone No.:
------------------------------------------ ------------------
</TABLE>
Social Security No.:
- ------------------------------------------
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN
SIGNATURE GUARANTEE (SEE INSTRUCTION 3 HEREIN)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
- --------------------------------------------------------------------------------
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURES)
- --------------------------------------------------------------------------------
(ADDRESS (INCLUDING ZIP CODE) AND TELEPHONE NUMBER
(INCLUDING AREA CODE) OF FIRM)
- --------------------------------------------------------------------------------
(AUTHORIZED SIGNATURE)
- --------------------------------------------------------------------------------
(PRINTED NAME)
- --------------------------------------------------------------------------------
(TITLE)
Date:
- ------------------------------
A-7
<PAGE> 8
------------------------------------------------------
SPECIAL ISSUANCE INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4 HEREIN)
To be completed ONLY if certificates for Old Notes in a principal
amount not tendered are to be issued in the name of, or the Exchange Notes
issued pursuant to the Exchange Offer are to be issued to the order of,
someone other than the person or persons whose signature(s) appear(s)
within this Letter of Transmittal or issued to an address different from
that shown in the box entitled "Description of Old Notes" within this
Letter of Transmittal, or if Old Notes tendered by book-entry transfer
that are not accepted for purchase are to be credited to an account
maintained at DTC.
[ ] Issue certificates for Old Notes
[ ] Issue certificates for Exchange Notes
to:
Name:
----------------------------------------------
(PLEASE PRINT)
Address:
--------------------------------------------
(PLEASE PRINT)
------------------------------------------------------
(ZIP CODE)
------------------------------------------------------
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 HEREIN)
======================================================
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 3 AND 4 HEREIN)
To be completed ONLY if certificates for Old Notes in a principal
amount not tendered or not accepted for purchase, or the Exchange Notes
issued pursuant to the Exchange Offer, are to be sent to someone other
than the person or persons whose signature(s) appear(s) within this Letter
of Transmittal or to an address different from that shown in the box
entitled "Description of Old Notes" within this Letter of Transmittal.
Name:
----------------------------------------------
(PLEASE PRINT)
Address:
--------------------------------------------
(PLEASE PRINT)
------------------------------------------------------
(ZIP CODE)
------------------------------------------------------
TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER
(SEE SUBSTITUTE FORM W-9 HEREIN)
------------------------------------------------------
A-8
<PAGE> 9
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS
OF THE EXCHANGE OFFER AND THE SOLICITATION
1. DELIVERY OF THIS LETTER OF TRANSMITTAL AND OLD NOTES. The certificates
for the tendered Old Notes (or a confirmation of a book-entry into the Exchange
Agent's account at DTC of all Old Notes delivered electronically), as well as
(a) a properly completed and duly executed copy of this Letter of Transmittal or
facsimile hereof and any other documents required by this Letter of Transmittal
or (b) an Agent's Message in connection with DTC's Automated Tender Offer
Program ("ATOP") procedures, must be received by the Exchange Agent at its
address set forth herein prior to 5:00 P.M., New York City time, on the
Expiration Date. THE METHOD OF DELIVERY OF THE TENDERED OLD NOTES, THIS LETTER
OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS TO THE EXCHANGE AGENT IS AT THE
ELECTION AND RISK OF THE HOLDER AND, EXCEPT AS OTHERWISE PROVIDED BELOW, THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT.
Instead of delivery by mail, it is recommended that the Holder use an overnight
or hand delivery service. In all cases, sufficient time should be allowed to
assure timely delivery. No Letter of Transmittal or Old Notes should be sent to
the Issuer.
Holders who wish to tender their Old Notes and (i) whose Old Notes are not
immediately available or (ii) who cannot deliver their Old Notes, this Letter of
Transmittal or any other documents required hereby, or an Agent's Message in
lieu thereof, to the Exchange Agent prior to the Expiration Date or (iii) who
cannot complete the procedures for book-entry transfer prior to the Expiration
Date may effect a tender of their Old Notes by following the guaranteed delivery
procedures set forth in the Prospectus. Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (or by a DTC
Participant if tender is to be made through ATOP); (ii) prior to the Expiration
Date, the Exchange Agent must have received (a) from the Eligible Institution a
properly completed and duly executed Notice of Guaranteed Delivery (by facsimile
transmission, mail or hand delivery) setting forth the name and address of the
Holder of the Old Notes, the certificate number or numbers of such Old Notes and
the principal amount of Old Notes tendered, stating that the tender is being
made thereby and guaranteeing that, within five New York Stock Exchange trading
days after the Expiration Date, this Letter of Transmittal (or facsimile
thereof) together with the certificate(s) representing the Old Notes (or a
confirmation of book-entry transfer of such Old Notes into the Exchange Agent's
account at DTC) and any other documents required by the Letter of Transmittal
will be deposited by the Eligible Institution with the Exchange Agent or (b)
from DTC, if tenders are to be made through ATOP, an Agent's Message which
states that DTC has received an express acknowledgement from a DTC Participant
tendering Old Notes that such DTC Participant has received and agrees to be
bound by the Notice of Guaranteed Delivery; and (iii) such properly completed
and executed Letter of Transmittal (or facsimile hereof), as well as the
certificate(s) representing all tendered Old Notes in proper form for transfer
(or a confirmation of book-entry transfer of such Old Notes into the Exchange
Agent's account at DTC), and all other documents required by this Letter of
Transmittal, or an Agent's Message in accordance with ATOP, must be received by
the Exchange Agent within five New York Stock Exchange trading days after the
Expiration Date, all as provided in the Prospectus under the caption "Guaranteed
Delivery Procedures." Any Holder of Old Notes who wishes to tender his Old Notes
pursuant to the guaranteed delivery procedures described above must ensure that
the Exchange Agent receives the Notice of Guaranteed Delivery prior to 5:00
P.M., New York City time, on the Expiration Date.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mailed to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice. For Old Notes to be
properly tendered pursuant to the guaranteed delivery procedure, the Exchange
Agent must receive a Notice of Guaranteed Delivery (or an Agent's Message in
lieu thereof) on or prior to 5:00 p.m., New York City time, on the Expiration
Date. As used herein and in the Prospectus, "Eligible Institution" means a firm
or other entity identified in Rule 17Ad-15 under the Exchange Act as "an
eligible guarantor institution," including (as such terms are defined therein)
(i) a bank; (ii) a broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union; (iv) a national
securities exchange, registered securities association or clearing agency; or
(v) a savings association that is a participant in a Securities Transfer
Association.
B-1
<PAGE> 10
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered Old Notes will be determined by
the Issuer at its sole discretion, which determination will be final and
binding. The Issuer reserves the absolute right to reject any and all Old Notes
not properly tendered or any Old Notes the Issuer's acceptance of which would,
in the opinion of counsel for the Issuer, be unlawful. The Issuer also reserves
the right to waive any irregularities or conditions of tender as to particular
Old Notes. The Issuer's interpretation of the terms and conditions of the
Exchange Offer (including the instructions in this Letter of Transmittal) will
be final and binding on all parties. Unless waived, any defects or
irregularities in connection with tenders of Old Notes must be cured within such
time as the Issuer shall determine. Neither the Issuer, the Exchange Agent nor
any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of Old Notes, nor shall any of them incur
any liability for failure to give such notification. Tenders of Old Notes will
not be deemed to have been made until such defects or irregularities have been
cured or waived. Any Old Notes received by the Exchange Agent that are not
properly tendered and as to which the defects or irregularities have not been
cured or waived will be returned without cost by the Exchange Agent to the
tendering Holders of Old Notes, unless otherwise provided in this Letter of
Transmittal, as soon as practicable following the Expiration Date.
Neither the Exchange Agent nor the Issuer will accept any alternative,
conditional or contingent tenders. Each tendering holder, by execution of a
Letter of Transmittal (or facsimile thereof), waives any right to receive any
notice of the acceptance of such tender.
2. PARTIAL TENDERS. Tenders of Old Notes will be accepted in all
denominations of $1,000 and integral multiples in excess thereof. If less than
the entire principal amount of any Old Notes is tendered, the tendering Holder
should fill in the principal amount tendered in the third column of the chart
entitled "Description of Old Notes. The entire principal amount of Old Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated. If the entire principal amount of all Old Notes is not
tendered, Old Notes for the principal amount of Old Notes not tendered and a
certificate or certificates representing Exchange Notes issued in exchange of
any Old Notes accepted will be sent to the Holder at his or her registered
address, unless a different address is provided in the appropriate box on this
Letter of Transmittal or unless tender is made through DTC, promptly after the
Old Notes are accepted for exchange.
3. SIGNATURES ON THE LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS;
GUARANTEE OF SIGNATURES. If this Letter of Transmittal (or facsimile hereof) is
signed by the registered Holder(s) of the Old Notes tendered hereby, the
signature must correspond with the name(s) as written on the face of the Old
Notes without alteration, enlargement or any change whatsoever. If any of the
Old Notes tendered hereby are owned of record by two or more joint owners, all
such owners must sign this Letter of Transmittal. If any tendered Old Notes are
registered in different name(s) on several Certificates, it will be necessary to
complete, sign and submit as many separate Letters of Transmittal (or facsimiles
thereof) as there are different registrations of Certificates.
If this Letter of Transmittal (or facsimile hereof) is signed by the
registered Holder(s) of Old Notes tendered and the certificate(s) for Exchange
Notes issued in exchange therefor is to be issued (or any untendered principal
amount of Old Notes is to be reissued) to the registered Holder, such Holder
need not and should not endorse any tendered Old Note, nor provide a separate
bond power. In any other case, such registered holder must either properly
endorse the Old Notes tendered or transmit a properly completed separate bond
power with this Letter of Transmittal, with the signatures on the endorsement or
bond power guaranteed by an Eligible Institution.
If this Letter of Transmittal (or facsimile hereof) or any Old Notes or
bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, or officers of corporations or others acting in a fiduciary
or representative capacity, such persons should so indicate when signing, and
unless waived by the Issuer, evidence satisfactory to the Issuer of their
authority so to act must be submitted with this Letter of Transmittal.
Endorsements on Old Notes or signatures on bond powers required by this
Instruction 3 must be guaranteed by an Eligible Institution.
B-2
<PAGE> 11
Signatures on this Letter of Transmittal (or facsimile hereof) must be
guaranteed by an Eligible Institution unless the Old Notes tendered pursuant
thereto are tendered (i) by a registered Holder (including any participant in
DTC whose name appears on a security position listing as the owner of Old Notes)
who has not completed the box set forth herein entitled "Special Issuance
Instructions" or the box entitled "Special Delivery Instructions" or (ii) for
the account of an Eligible Institution.
4. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. Tendering Holders should
indicate, in the applicable spaces, the name and address to which Exchange Notes
or substitute Old Notes for principal amounts not tendered or not accepted for
exchange are to be issued or sent, if different from the name and address of the
person signing this Letter of Transmittal (or in the case of tender of the Old
Notes through DTC, if different from DTC). In the case of issuance in a
different name, the taxpayer identification or social security number of the
person named must also be indicated.
5. TRANSFER TAXES. The Issuer will pay all transfer taxes, if any,
applicable to the exchange of Old Notes pursuant to the Exchange Offer. If,
however, certificates representing Exchange Notes or Old Notes for principal
amounts not tendered or accepted for exchange are to be delivered to, or are to
be registered or issued in the name of, any person other than the registered
Holder of the Old Notes tendered hereby, or if tendered Old Notes are registered
in the name of any person other than the person signing this Letter of
Transmittal, or if a transfer tax is imposed for any reason other than the
exchange of Old Notes pursuant to the Exchange Offer, than the amount of any
such transfer taxes (whether imposed on the registered Holder or any other
person) will be payable by the tendering Holder. If satisfactory evidence of
payment of such taxes or exemption therefrom is not submitted with this Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering Holder.
Except as provided in this Instruction 5, it will not be necessary for
transfer tax stamps to be affixed to the Old Notes listed in this Letter of
Transmittal.
6. WAIVER OF CONDITIONS. The Issuer reserves the absolute right to amend,
waive or modify specified conditions in the Exchange Offer in the case of any
Old Notes tendered.
7. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any tendering Holder
whose Old Notes have been mutilated, lost, stolen or destroyed should contact
the Exchange Agent at the address indicated herein for further instruction.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance and requests for additional copies of the Prospectus, this Letter
of Transmittal or the Notice of Guaranteed Delivery may be directed to the
Exchange Agent at the address specified in the Prospectus. Holders may also
contact their broker, dealer, commercial bank, trust company or other nominee
for assistance concerning the Exchange Offer.
B-3
<PAGE> 12
(DO NOT WRITE IN SPACE BELOW)
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------
CERTIFICATE SURRENDERED OLD NOTES TENDERED OLD NOTES ACCEPTED
<S> <C> <C>
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
=============================================================================================
Delivery Prepared by Checked by Date
--------------------- ---------------------- --------------
- ---------------------------------------------------------------------------------------------
</TABLE>
B-4
<PAGE> 13
IMPORTANT TAX INFORMATION
Under federal income tax laws, a Holder whose tendered Old Notes are
accepted for payment is required to provide the Exchange Agent (as payer) with
such Holder's correct TIN on Substitute Form W-9 below or otherwise establish a
basis for exemption from backup withholding. If such Holder is an individual,
the TIN is his social security number. If the Exchange Agent is not provided
with the correct TIN, a $50 penalty may be imposed by the Internal Revenue
Service, and payments made with respect to Old Notes purchased pursuant to the
Exchange Offer may be subject to backup withholding.
Certain Holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on Substitute
Form W-9. A foreign person may qualify as an exempt recipient by submitting to
the Exchange Agent a properly completed Internal Revenue Service Form W-8,
signed under penalties of perjury, attesting to that Holder's exempt status. A
Form W-8 can be obtained from the Exchange Agent. See the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any payments made to the Holder or other payee. Backup withholding is not
an additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments made with respect to the Exchange
Offer, the Holder is required to provide the Exchange Agent with either: (i) the
Holder's correct TIN by completing the form below, certifying that the TIN
provided on Substitute Form W-9 is correct (or that such Holder is awaiting a
TIN) and that (A) the Holder has not been notified by the Internal Revenue
Service that the Holder is subject to backup withholding as a result of failure
to report all interest or dividends or (B) the Internal Revenue Service has
notified the Holder that the Holder is no longer subject to backup withholding
or (ii) an adequate basis for exemption.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered Holder of
the Old Notes. If the Old Notes are held in more than one name or are held not
in the name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
B-5
<PAGE> 14
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------
PAYERS NAME:
- ---------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW ----------------------------
DEPARTMENT OF THE TREASURY Social Security Number
INTERNAL REVENUE SERVICE
OR
PAYER'S REQUEST FOR ----------------------------
TAXPAYER IDENTIFICATION Employer Identification
NUMBER (TIN) Number
-----------------------------------------------------------------------------
PART 2 -- Certification -- Under Penalties of Perjury, I certify that:
PART 3 --
Awaiting TIN
[ ]
(1) The number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me) and
(2) I am not subject to backup withholding
because I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to
backup withholding as a result of failure to
report all interest or dividends, or the IRS
has notified me that I am no longer subject
to backup withholding.
-----------------------------------------------------------------------------
CERTIFICATE INSTRUCTION -- You must cross out item (2) in Part 2 above if
you have been notified by the IRS that you are subject to backup withholding
because of underreporting interest or dividends on your tax return. However,
if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS stating that you
are no longer subject to backup withholding, do not cross out (2).
- ---------------------------------------------------------------------------------------------------------
Signature Date
---------------------------------------------------------------------- -------------, ------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO HOLDERS OF EXCHANGE NOTES PURSUANT TO THE
EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART
3 OF SUBSTITUTE FORM W-9
B-6
<PAGE> 15
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number within 60 days, 31 percent of all
reportable payments made to me thereafter will be withheld until I provide a
number.
- ------------------------------------------ ------------------------------------
SIGNATURE DATE
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Registered or Certified By Facsimile: By Hand or Overnight Courier:
Mail:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street - 7E 101 Barclay Street
New York, NY 10286 Confirm by Telephone: Corporate Trust Services Window
Attention: Reorganization (212) 815-2742 - Ground Level
Section, New York, New York 10286
Enrique Lopez Attention: Reorganization
Section,
Enrique Lopez
</TABLE>
B-7
<PAGE> 1
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
FOR
6 7/8% NOTES DUE 2007
OF
P. H. GLATFELTER COMPANY
As set forth in the Prospectus, dated ____________, 1997 (the
"Prospectus"), of P. H. Glatfelter Company (the "Issuer"), in the accompanying
Letter of Transmittal and instructions thereto (the "Letter of Transmittal"),
this form or one substantially equivalent hereto must be used to accept the
Issuer's offer to exchange (the "Exchange Offer") $1,000 principal amount of its
6 7/8% Notes due 2007, Series B (the "Exchange Notes") for each $1,000 principal
amount of its outstanding 6 7/8% Notes due 2007 (the "Old Notes") if (i)
certificates representing the Old Notes to be tendered for exchange are not
immediately available, (ii) time will not permit the Letter of Transmittal,
certificates representing such Old Notes or other required documents, or an
Agent's Message in lieu thereof, to reach the Exchange Agent prior to the
Expiration Date or (iii) the procedures for book-entry transfer cannot be
completed prior to the Expiration Date. This form may be delivered by an
Eligible Institution by mail or hand delivery or transmitted via telegram, telex
or facsimile, to the Exchange Agent as set forth below. All capitalized terms
used herein but not defined herein shall have the meanings ascribed to them in
the Prospectus.
-----------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON ____________, 1997 UNLESS THE OFFER IS EXTENDED (THE
"EXPIRATION DATE"). TENDERS OF OLD NOTES MAY BE WITHDRAWN AT ANY TIME
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
-----------------------------------------------------------------------
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Registered or Certified Mail: By Facsimile: By Hand or Overnight Courier:
The Bank of New York (212) 815-6339 The Bank of New York
101 Barclay Street - 7E 101 Barclay Street
New York, NY 10286 Confirm by Telephone: Corporate Trust Services Window
Attention: Reorganization Section, (212) 815-2742 - Ground Level
Enrique Lopez New York, New York 10286
Attention: Reorganization Section,
Enrique Lopez
</TABLE>
Delivery of this instrument to an address, or transmission via
facsimile, other than as set forth above will not constitute a valid delivery.
This form is not to be used to guarantee signatures. If a signature on
the Letter of Transmittal is required to be guaranteed by an "Eligible
Institution" under the instructions thereto, such signature guarantee must
appear in the applicable space provided in the signature box on the Letter of
Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to the Issuer, upon the terms and
subject to the conditions set forth in the Exchange Offer and the Letter of
Transmittal, receipt of which is hereby acknowledged, the aggregate principal
amount of Old Notes set forth below pursuant to the guarantee delivery
procedures set forth in the Prospectus.
The undersigned understands that tenders of Old Notes will be accepted
only in principal amounts equal to $1,000 or integral multiples thereof. The
undersigned understands that tenders of Old Notes pursuant to the Exchange Offer
may not be withdrawn after 5:00 p.m., New York City time on the Expiration Date.
Tenders of Old Notes may also be withdrawn if the Exchange Offer is terminated
without any such Old Notes being purchased thereunder or as otherwise provided
in the Prospectus. Any Old Notes which have been tendered but which are not
accepted for exchange will be returned to the holder thereof without cost to
such holder as soon as practicable after withdrawal, rejection of tender or
termination of the Exchange Offer.
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs,
<PAGE> 2
personal representatives, executors, administrators, successors, assigns,
trustees in bankruptcy and other legal representatives of the undersigned.
PLEASE SIGN AND COMPLETE
<TABLE>
<S> <C>
Signature(s) of Registered Owner(s) or Authorized Name(s) of Registered Holder(s):
Signatory:_____________________________________________ ____________________________________________________
_______________________________________________________ ____________________________________________________
_______________________________________________________ ____________________________________________________
Principal Amount of Old Notes Tendered:________________ Address:____________________________________________
Certificate No(s) of Old Notes (if available):_________ Area Code and Telephone No.:________________________
_______________________________________________________ If Old Notes will be delivered
_______________________________________________________ by book-entry transfer at
_______________________________________________________ at The Depository Trust Company,
_______________________________________________________ insert Depository Account No.:______________________
Date:__________________________________________________
</TABLE>
This Notice of Guaranteed Delivery must be signed by the registered holder(s) of
Old Notes exactly as its (their) name(s) appear on certificates for Old Notes or
on a security position listing as the owner of Old Notes, or by person(s)
authorized to become registered Holder(s) by endorsement and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must
provide the following information.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s): ________________________________________________________________
________________________________________________________________
________________________________________________________________
Capacity: ________________________________________________________________
Address(es): __________________________________________________________________
________________________________________________________________
________________________________________________________________
Do not send Old Notes with this form. Old Notes should be sent to the Exchange
Agent together with a properly completed and duly executed Letter of
Transmittal.
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States, hereby (a) represents that each holder of Old Notes on whose
behalf this tender is being made "own(s)" the Old Notes covered hereby within
the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended,
(b) represents that such tender of Old Notes complies with such Rule 14e-4, and
(c) guarantees that, within five New York Stock Exchange trading days from the
date of this Notice of Guaranteed Delivery, a properly completed and duly
executed Letter of Transmittal (or a facsimile thereof), together with
certificates representing the Old Notes covered hereby in proper form for
transfer (or confirmation of the book-entry transfer of such Old Notes into the
Exchange Agent's account at The Depository Trust Company, pursuant to the
procedure for book-entry transfer set forth in the Prospectus) and required
documents will be deposited by the undersigned with the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of
Transmittal and Old Notes tendered hereby to the Exchange Agent within the time
period set forth above and that failure to do so could result in financial loss
to the undersigned.
Name of Firm: __________________________ ______________________________________
Authorized Signature
Address: _______________________________ Name:_________________________________
________________________________________ Title:________________________________
Area Code and Telephone No.:____________ Date:_________________________________
2
<PAGE> 1
EXHIBIT 99.3
__________, 1997
EXCHANGE AGENT AGREEMENT
The Bank of New York
Corporate Trust Trustee Administration
101 Barclay Street - 21st Floor
New York, New York 10286
Ladies and Gentlemen:
P.H. Glatfelter Company (the "Company") proposes to make an
offer (the "Exchange Offer") to exchange its 6 7/8% Notes due 2007 (the "Old
Securities") for its 6 7/8% Notes due 2007, Series B (the "New Securities"). The
terms and conditions of the Exchange Offer as currently contemplated are set
forth in a prospectus, dated __________, 1997 (the "Prospectus"), proposed to be
distributed to all record holders of the Old Securities. The Old Securities and
the New Securities are collectively referred to herein as the "Securities".
The Company hereby appoints The Bank of New York to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company
on or about __________, 199__. The Letter of Transmittal accompanying the
Prospectus (or in the case of book entry securities, the ATOP system) is to be
used by the holders of the Old Securities to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Old
Securities tendered in connection therewith.
The Exchange Offer shall expire at 5:00 P.M., New York City
time, on __________, 199__ or on such later date or time to which the Company
may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 9:00 A.M.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified
<PAGE> 2
in the Prospectus under the caption "The Exchange Offer--Conditions." The
Company will give oral (confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Securities by causing the Book-Entry Transfer Facility to transfer such Old
Securities into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Old Securities to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and (ii) the Old Securities have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Old Securities
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the Exchange Offer exists, you will endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of the President, Senior Vice President,
Executive Vice President, or any Vice President of the Company (such approval,
if given orally, to be confirmed in writing) or any other party designated by
such an officer in writing, you are authorized to waive any irregularities in
connection with any tender of Old Securities pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in
the Letter of Transmittal and in the section of the
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<PAGE> 3
Prospectus captioned "The Exchange Offer -- Procedures for Tendering", and Old
Securities shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Securities which the President, Senior Vice President, Executive Vice President,
or any Vice President of the Company shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old
Securities received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered
in two or more names only if signed by all named holders;
(b) in cases where the signing person (as indicated
on the Letter of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority so to act is
submitted; and
(c) from persons other than the registered holder of
Old Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Securities to the transfer agent for split-up and return any untendered
Old Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Securities properly tendered and you, on behalf of the Company, will
exchange such Old Securities for New Securities and cause such Old Securities to
be cancelled. Delivery of New Securities will be made on behalf of the Company
by you at the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Old Securities by the Company; provided, however, that in
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<PAGE> 4
all cases, Old Securities tendered pursuant to the Exchange Offer will be
exchanged only after timely receipt by you of certificates for such Old
Securities (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) with any required signature guarantees, or on
Agent's Message in lieu thereof, in accordance with ATOP, and any other required
documents. You shall issue New Securities only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Old Securities tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Company not to exchange any Old
Securities tendered shall be given (and confirmed in writing) by the Company to
you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Old Securities tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the caption "The Exchange Offer -- Conditions" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Securities (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted
Old Securities or for New Securities shall be forwarded by first-class mail.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than
those set forth in the Prospectus or Letter of Transmittal or
specifically set forth herein or as may be subsequently agreed to
in writing by you and the Company;
(b) will be regarded as making no representations
and having no responsibilities as to the validity, sufficiency,
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<PAGE> 5
value or genuineness of any of the certificates or the Old Securities
represented thereby deposited with you pursuant to the Exchange Offer, and will
not be required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(e) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a proper
person or persons;
(f) may rely on and shall be protected in acting upon written
or oral instructions from any officer of the Company;
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
(h) shall not advise any person tendering Old Securities
pursuant to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Old
Securities.
15. You shall take such action as may from time to time be
requested by the Company or its counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus)
or such other forms as may be approved from time to time by the Company, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Company will furnish you with copies of such
documents at your request. All
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<PAGE> 6
other requests for information relating to the Exchange Offer shall be directed
to the Company, Attention: ____________________.
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to ____________________ of the
Company and such other person or persons as it may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise requested) up to and including the Expiration Date, as to the number
of Old Securities which have been tendered pursuant to the Exchange Offer and
the items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as it or he
or she reasonably requests. Such cooperation shall include, without limitation,
the granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Old
Securities tendered, the aggregate principal amount of Old Securities accepted
and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period of time
you preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right
of set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on Schedule I attached
hereto.
20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as
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<PAGE> 7
they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
21. The Company covenants and agrees to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including attorneys' fees and expenses, arising out
of or in connection with any act, omission, delay or refusal made by you in
reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Old Securities reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Old Securities; provided, however, that the
Company shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your gross negligence or
willful misconduct. In no case shall the Company be liable under this indemnity
with respect to any claim against you unless the Company shall be notified by
you, by letter or by facsimile confirmed by letter, of the written assertion of
a claim against you or of any other action commenced against you, promptly after
you shall have received any such written assertion or notice of commencement of
action. The Company shall be entitled to participate at its own expense in the
defense of any such claim or other action, and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you so long as the Company shall retain counsel
satisfactory to you to defend such suit, and so long as you have not determined,
in your reasonable judgment, that a conflict of interest exists between you and
the Company.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Company understands that you are required to deduct 31% on
payments to holders who have not supplied their correct Taxpayer Identification
Number or required certification. Such funds will be turned over to the Internal
Revenue Service in accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable in
respect of the exchange of Old Securities, your check in the amount of all
transfer taxes so payable, and the
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<PAGE> 8
Company shall reimburse you for the amount of any and all transfer taxes payable
in respect of the exchange of Old Securities; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of your payment of
any such transfer taxes, at such time as such refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
26. In case any provision of this Agreement 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.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Company:
______________________________
______________________________
______________________________
Facsimile: ___________________
Attention: ___________________
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<PAGE> 9
If to the Exchange Agent:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Facsimile: (212) 815-5915
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 19, 21 and 23 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Securities, funds or property then held by you
as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
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<PAGE> 10
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
P.H. GLATFELTER COMPANY
By: ______________________________
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:______________________________
Name:
Title:
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<PAGE> 11
SCHEDULE I
FEES
11
