EXHIBIT 4.2
================================================================================
SOI FUNDING CORP.
(may be assumed by SOLUTIA INC.)
and
HSBC BANK USA, as Trustee
--------------------------------------
INDENTURE
Dated as of July 9, 2002
--------------------------------------
11.25% Senior Secured Notes Due 2009
================================================================================
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -----------------
310 (a)(1)............................................................... 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... N.A.
(b).................................................................. 7.08; 7.10; 11.02
(b)(1)............................................................... 7.10
(c).................................................................. N.A.
311 (a).................................................................. 7.11
(b).................................................................. 7.11
(c).................................................................. N.A.
312 (a).................................................................. 2.06
(b).................................................................. 11.03
(c).................................................................. 11.03
313 (a).................................................................. 7.06
(b)(1)............................................................... N.A.
(b)(2)............................................................... 7.06
(c).................................................................. 7.06; 11.02
(d).................................................................. 7.06
314 (a).................................................................. 4.06; 4.19; 11.02
(b).................................................................. N.A.
(c)(1)............................................................... 11.04
(c)(2)............................................................... 11.04
(c)(3)............................................................... N.A.
(d).................................................................. N.A.
(e).................................................................. 11.05
(f).................................................................. N.A.
315 (a).................................................................. 7.01(b)
(b).................................................................. 7.05; 11.02
(c).................................................................. 7.01(a)
(d).................................................................. 7.01(c)
(e).................................................................. 6.12
316 (a)(last sentence)................................................... 2.10
(a)(1)(A)............................................................ 6.05
(a)(1)(B)............................................................ 6.04
(a)(2)............................................................... N.A.
(b).................................................................. 6.08
(c).................................................................. 8.04
317 (a)(1)............................................................... 6.09
(a)(2)............................................................... 6.10
(b).................................................................. 2.05; 7.12
318 (a).................................................................. 11.01
----------
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this
Indenture
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions..........................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act...................................30
SECTION 1.03. Rules of Construction...............................................................31
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes.....................................................................31
SECTION 2.02. Form and Dating.....................................................................32
SECTION 2.03. Execution and Authentication........................................................32
SECTION 2.04. Registrar and Paying Agent..........................................................33
SECTION 2.05. Paying Agent To Hold Money in Trust.................................................34
SECTION 2.06. Noteholder Lists....................................................................34
SECTION 2.07. Transfer and Exchange...............................................................34
SECTION 2.08. Replacement Notes...................................................................35
SECTION 2.09. Outstanding Notes...................................................................35
SECTION 2.10. Treasury Notes......................................................................36
SECTION 2.11. Temporary Notes.....................................................................36
SECTION 2.12. Cancellation........................................................................36
SECTION 2.13. Defaulted Interest..................................................................37
SECTION 2.14. CUSIP Number........................................................................37
SECTION 2.15. Deposit of Moneys...................................................................37
SECTION 2.16. Book-Entry Provisions for Global Notes..............................................38
SECTION 2.17. Special Transfer Provisions.........................................................40
SECTION 2.18. Computation of Interest.............................................................41
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee..............................................41
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed........................................42
SECTION 3.03. Notice of Redemption................................................................42
SECTION 3.04. Effect of Notice of Redemption......................................................43
-i-
Page
----
SECTION 3.05. Deposit of Redemption Price.........................................................43
SECTION 3.06. Notes Redeemed in Part..............................................................44
SECTION 3.07. Special Mandatory Redemption; Notices to Trustee and Securities Intermediary........44
SECTION 3.08. Notice of Special Mandatory Redemption to Holders...................................44
SECTION 3.09. Effect of Notice of Special Mandatory Redemption....................................45
SECTION 3.10. Deposit of Special Mandatory Redemption Price.......................................45
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes....................................................................45
SECTION 4.02. Maintenance of Office or Agency.....................................................46
SECTION 4.03. Legal Existence.....................................................................46
SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law...........................47
SECTION 4.05. Waiver of Stay, Extension or Usury Laws.............................................47
SECTION 4.06. Compliance Certificate..............................................................48
SECTION 4.07. Taxes...............................................................................48
SECTION 4.08. Repurchase at the Option of Holders upon Change of Control..........................49
SECTION 4.09. Limitation on Incurrence of Additional Indebtedness and Issuance of Preferred Stock.51
SECTION 4.10. Limitation on Restricted Payments...................................................55
SECTION 4.11. Limitation on Liens.................................................................59
SECTION 4.12. Limitation on Asset Sales...........................................................59
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries.....................................................................63
SECTION 4.14. Limitation on Transactions with Affiliates..........................................65
SECTION 4.15. Limitation on Sale and Leaseback Transactions.......................................66
SECTION 4.16. [Reserved]..........................................................................67
SECTION 4.17. Line of Business....................................................................67
SECTION 4.18. Reports to Holders..................................................................67
SECTION 4.19. Creation of Subsidiaries; Guarantees by Restricted Subsidiaries.....................68
SECTION 4.20. Covenants Applicable if Notes Rated Investment Grade................................69
-ii-
Page
----
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets............................................70
SECTION 5.02. Successor Person Substituted........................................................72
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default...................................................................72
SECTION 6.02. Acceleration of Maturity; Rescission................................................73
SECTION 6.03. Other Remedies......................................................................74
SECTION 6.04. Waiver of Past Defaults and Events of Default.......................................75
SECTION 6.05. Control by Majority.................................................................75
SECTION 6.06. Limitation on Suits.................................................................76
SECTION 6.07. No Personal Liability of Directors, Officers, Employees and Stockholders............76
SECTION 6.08. Rights of Holders To Receive Payment................................................77
SECTION 6.09. Collection Suit by Trustee..........................................................77
SECTION 6.10. Trustee May File Proofs of Claim....................................................77
SECTION 6.11. Priorities..........................................................................78
SECTION 6.12. Undertaking for Costs...............................................................78
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee...................................................................79
SECTION 7.02. Rights of Trustee...................................................................80
SECTION 7.03. Individual Rights of Trustee........................................................81
SECTION 7.04. Trustee's Disclaimer................................................................81
SECTION 7.05. Notice of Defaults..................................................................81
SECTION 7.06. Reports by Trustee to Holders.......................................................82
SECTION 7.07. Compensation and Indemnity..........................................................82
SECTION 7.08. Replacement of Trustee..............................................................83
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.....................................84
SECTION 7.10. Eligibility; Disqualification.......................................................84
SECTION 7.11. Preferential Collection of Claims Against Company...................................85
SECTION 7.12. Paying Agents.......................................................................85
-iii-
Page
----
ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. Without Consent of Noteholders......................................................85
SECTION 8.02. With Consent of Noteholders.........................................................86
SECTION 8.03. Compliance with Trust Indenture Act.................................................88
SECTION 8.04. Revocation and Effect of Consents...................................................88
SECTION 8.05. Notation on or Exchange of Notes....................................................89
SECTION 8.06. Trustee To Sign Amendments, etc.....................................................89
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture..............................................................89
SECTION 9.02. Legal Defeasance....................................................................91
SECTION 9.03. Covenant Defeasance.................................................................91
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.....................................92
SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in Trust;
Other Miscellaneous Provisions...................................................94
SECTION 9.06. Reinstatement.......................................................................94
SECTION 9.07. Moneys Held by Paying Agent.........................................................95
SECTION 9.08. Moneys Held by Trustee..............................................................95
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee...........................................................................96
SECTION 10.02. Execution and Delivery of Subsidiary Guarantee......................................97
SECTION 10.03. Release of Subsidiary Guarantors....................................................97
SECTION 10.04. Waiver of Subrogation...............................................................98
SECTION 10.05. Notice to Trustee...................................................................98
ARTICLE ELEVEN
SECURITY DOCUMENTS
SECTION 11.01. Security Documents..................................................................99
SECTION 11.02. Recording and Opinions.............................................................100
-iv-
Page
----
SECTION 11.03. Release of Collateral..............................................................100
SECTION 11.04. Certificates of the Company........................................................100
SECTION 11.05. Certificates of the Trustee........................................................101
SECTION 11.06. Authorization of Actions To Be Taken by the Trustee Under the Security Documents...101
SECTION 11.07. Authorization of Receipt of Funds by the Trustee Under the Security Documents......101
SECTION 11.08. Termination of Security Interest...................................................102
SECTION 11.09. Security Documents.................................................................102
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.......................................................102
SECTION 12.02. Notices............................................................................102
SECTION 12.03. Communications by Holders with Other Holders.......................................105
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.................................105
SECTION 12.05. Statements Required in Certificate and Opinion.....................................105
SECTION 12.06. Rules by Trustee and Agents........................................................106
SECTION 12.07. Business Days; Legal Holidays......................................................106
SECTION 12.08. Governing Law......................................................................106
SECTION 12.09. No Adverse Interpretation of Other Agreements......................................106
SECTION 12.10. Successors.........................................................................106
SECTION 12.11. Multiple Counterparts..............................................................106
SECTION 12.12. Table of Contents, Headings, etc...................................................106
SECTION 12.13. Separability.......................................................................107
EXHIBITS
Exhibit A. Form of Note.......................................................................A-1
Exhibit B. Form of Legend for Rule 144A Notes and Other Notes That Are Restricted Notes.......B-1
Exhibit C. Form of Legend for Regulation S Note...............................................C-1
Exhibit D. Form of Legend for Global Note.....................................................D-1
Exhibit E. Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S..............................................E-1
Exhibit F. Form of Guarantee..................................................................F-1
Exhibit G. Form of Junior Security Agreement..................................................G-1
Exhibit H. Form of Junior Intercreditor Agreement.............................................H-1
-v-
INDENTURE, dated as of July 9, 2002, between SOI FUNDING CORP., a
Delaware corporation, as issuer ("SOI FUNDING"), and HSBC BANK USA, a
New York
banking corporation, as trustee (the "TRUSTEE").
References herein to the "COMPANY" refer to (i) prior to the
Assumption Date SOI Funding and (ii) on and after the Assumption Date,
Solutia
Inc.
On and after the Assumption Date, the Notes will be Guaranteed by the
Subsidiary Guarantors.
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Notes.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"ACQUIRED DEBT" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or becomes a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person, merging with or into or becoming a
Subsidiary of such specified Person and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"ACQUIRED DISQUALIFIED STOCK" means, with respect to any specified
Person, Disqualified Stock of any other Person existing at the time such other
Person is merged with or into or becomes a Subsidiary of such specified Person,
including, without limitation, Disqualified Stock incurred in connection with,
or in contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person.
"ACQUIRED PREFERRED STOCK" means, with respect to any specified
Person, Preferred Stock of any other Person existing at the time such other
Person is merged with or into or becomes a Subsidiary of such specified Person,
including, without limitation, Preferred Stock incurred in connection with, or
in contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person.
"ADDITIONAL ASSETS" means (a) Capital Stock of a Person that becomes a
Restricted Subsidiary as a result of the acquisition of such Capital Stock by
the Company or another Restricted Subsidiary from any Person other than the
Company or an Affiliate of the
-2-
Company, (b) any controlling interest or joint venture interest in another
business or (c) any other asset (other than securities, cash, Cash Equivalents
or other current assets) to be owned by the Company or any Restricted
Subsidiary.
"ADDITIONAL NOTES" has the meaning set forth in Section 2.01.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly, through one or more intermediaries, controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purpose of this definition, "control" when used with respect to any specified
Person means the possession, direct or indirect, of the power to manage or
direct or cause the direction of the management and policies of such Person
directly or indirectly, whether through the ownership of voting stock, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"AFFILIATE TRANSACTION" has the meaning set forth in Section 4.14.
"AGENT" means any Registrar, Paying Agent, or agent for service or
notices and demands.
"AGENT MEMBERS" has the meaning set forth in Section 2.16.
"AMEND" means amend, modify, supplement, restate or amend and restate,
including successively; and "AMENDING" and "AMENDED" have correlative meanings.
"APPLICABLE PARI PASSU INDEBTEDNESS" in respect of any asset that is
the subject of an Asset Sale means (i) at a time when such asset is included in
the Collateral (x) Indebtedness under Bank Obligations that is secured at such
time by Collateral or (y) Pari Passu Indebtedness of the Company or its
Restricted Subsidiaries that has a Stated Maturity prior to the Stated Maturity
of the Notes and (ii) at a time when such asset is not included in the
Collateral, any Indebtedness (a) under the Credit Facility and (b) any other
Indebtedness (other than Subordinated Debt) of the Company or a Restricted
Subsidiary that has a Stated Maturity prior to the Stated Maturity of the Notes.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition (other than the creation of a Lien) of any assets (other than the
disposition of inventory or equipment in the ordinary course of business
consistent with industry practices or the disposition of Cash Equivalents)
(PROVIDED that the sale, conveyance or other disposition of all or substantially
all the assets of the Company and its Restricted Subsidiaries taken as a whole
will be governed by Section 4.08 and/or Section 5.01 and not by Section 4.12),
(ii) the sale by the Company or any of its Restricted Subsidiaries of Capital
Stock of any of the Company's Restricted Subsidiaries, Unrestricted Subsidiaries
or Joint Ventures and (iii) the issuance by any of the Company's
-3-
Restricted Subsidiaries of Capital Stock of such Restricted Subsidiary, in the
case of each of the foregoing clauses (i), (ii) or (iii), whether in a single
transaction or a series of related transactions (A) that has a fair market value
in excess of $10 million or (B) for Net Proceeds in excess of $10 million.
Notwithstanding the foregoing: (a) a transfer of assets by the Company to a
Restricted Subsidiary or by a Restricted Subsidiary to the Company or to another
Restricted Subsidiary PROVIDED that such assets (to the extent constituting
Collateral) shall remain subject to the Lien of the Security Documents; (b) an
issuance of Capital Stock by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary PROVIDED that such assets (to the extent
constituting Collateral) shall remain subject to the Lien of the Security
Documents; (c) Sale and Lease-Back Transactions; and (d) Restricted Payments
permitted by Section 4.10 and Permitted Investments will not be deemed to be an
Asset Sale.
"ASSET SALE OFFER" has the meaning set forth in Section 4.12.
"ASSUMPTION DATE" means the date and time of the Solutia Assumption.
"ASSUMPTION DOCUMENTATION" means the Supplemental
Indenture, the
Opinions of Counsel, the Officers' Certificate and the other documents referred
to in the Escrow Agreement pursuant to which the Solutia Assumption shall occur.
"ASTARIS SUPPORT AGREEMENT" means the guaranty agreement, dated
September 14, 2000, made by Solutia in favor of Astaris LLC, a limited liability
company organized and existing under the laws of Delaware ("ASTARIS"), and in
favor of the lenders under the five-year credit agreement dated September 14,
2000 under which Astaris is the borrower and Bank of America, N.A. is the
administrative agent, as such agreement may be modified, amended, restated or
replaced; PROVIDED that the terms of any such modification, amendment,
restatement or replacement do not materially increase Solutia's or any
Restricted Subsidiary's obligations thereunder and such terms (including as to
tenor) are not more onerous from a financial perspective, taken as a whole, to
Solutia and the Restricted Subsidiaries.
"ATTRIBUTABLE DEBT" means, with respect to any Sale and Lease-Back
Transaction, the amount determined by multiplying the greater, at the time such
arrangement is entered into, of (1) the fair value of the real property subject
to such arrangement (as determined by the Company) or (2) the net proceeds of
the sale of such real property to the lender or investor, by a fraction of which
the numerator is the unexpired initial term of the lease of such real property
as of the date of determination and of which the denominator is the full initial
term of such lease. Sale and Lease-Back Transactions with respect to facilities
financed with Industrial Development Bonds (whether or not tax exempt) are
excepted from the calculation made pursuant to this definition.
"BANK OBLIGATIONS" means the Obligations of Solutia and its Restricted
Subsidiaries under the Credit Facility, the Co-Generation Facility, the Astaris
Support Agreement,
-4-
the Designated Letters of Credit and Hedging Obligations in of such Designated
Letters of Credit.
"BANKRUPTCY LAW" means Title 11 of the United States Code entitled
"Bankruptcy" or any other law relating to bankruptcy, insolvency, winding up,
liquidation, reorganization or relief of debtors, whether in effect on the date
hereof or hereafter.
"BOARD OF DIRECTORS" means the board of directors of Solutia or any
duly authorized committee thereof.
"BUSINESS DAY" or "BUSINESS DAY" has the meaning set forth in Section
12.07.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, the issuing Person and (v) all warrants,
options or other rights to acquire any item listed in (i) through (iv) of this
definition.
"CASH EQUIVALENTS" means (a) United States dollars, (b) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof having maturities of not
more than one year from the date of acquisition, (c) demand deposits, time
deposits and certificates of deposit with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year from the date of acquisition and overnight bank deposits, in each case with
any bank or trust company organized or licensed under the laws of the United
States or any State thereof having capital, surplus and undivided profits in
excess of $250 million, (d) repurchase obligations with a term of not more than
seven days for underlying securities of the type described in clauses (b) and
(c) above entered into with any financial institution meeting the qualifications
specified in clause (c) above, (e) commercial paper rated at least P-1 or Al-1
by Moody's or S&P, respectively, (f) investments in any U.S. dollar-denominated
money market fund as defined by Rule 2a-7 of the General Rules and Regulations
promulgated under the Investment Company Act of 1940 and (g) in the case of a
Foreign Subsidiary, substantially similar investments denominated in foreign
currencies (including similarly capitalized foreign banks).
-5-
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and l3d-5 under the Exchange Act, except that a
Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of securities representing 50% or more of the
voting power of all Capital Stock of Solutia; or
(2) Continuing Directors shall cease to constitute at least a majority of
the directors constituting the Board of Directors; or
(3) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of Solutia and
its Restricted Subsidiaries taken as a whole to any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act); or
(4) Solutia consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, Solutia, in any such
event pursuant to a transaction in which any of the outstanding
Capital Stock of Solutia is converted into or exchanged for cash,
securities or other property, other than any such transaction where
the Capital Stock of Solutia outstanding immediately prior to such
transaction is converted into or exchanged for Capital Stock (other
than Disqualified Stock) of the surviving or transferee Person
representing at least a majority of the voting power of all Capital
Stock of such surviving or transferee Person immediately after giving
effect to such issuance; or
(5) the adoption by the stockholders of Solutia of a plan or proposal for
the liquidation or dissolution of Solutia or, prior to the Solutia
Assumption, the adoption by the Company of a plan or proposal for the
liquidation or dissolution, prior to the Assumption Date, of the
Company.
"CHANGE OF CONTROL OFFER" has the meaning set forth in Section 4.08.
"CHANGE OF CONTROL PAYMENT" has the meaning set forth in Section 4.08.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning set forth in Section
4.08.
"CLEARSTREAM" has the meaning set forth in Section 2.16.
-6-
"CO-GENERATION FACILITY" means the co-generation lease facility for
Solutia's co-generation facility in Pensacola, Florida, as such lease facility
may be amended, restated, modified or replaced.
"COLLATERAL" means, collectively, all of the property and assets that
are from time to time subject to or required to be subject to the Liens created
under the Security Documents.
"COLLATERAL AGENT" has the meaning set forth in the Security
Documents.
"COLLATERAL TRUST" has the meaning set forth in the Security
Documents.
"COLLATERAL TRUSTEE" shall have the meaning assigned to such term in
the Sharing Intercreditor Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means the party named as such in the first paragraph of this
Indenture and further defined in the second paragraph hereof, until a successor
replaces such party pursuant to Article Five and thereafter means the successor.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period, plus in each
case, without duplication:
(i) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period to the extent that such
provision for taxes was included in computing such Consolidated Net Income;
(ii) the Fixed Charges of such Person and its Restricted Subsidiaries
for such period, to the extent that such Fixed Charges were deducted in
computing such Consolidated Net Income;
(iii) depreciation and amortization (including amortization of goodwill
and other intangibles but excluding amortization of prepaid cash expenses
that were paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation and
amortization were deducted in computing such Consolidated Net Income; and
(iv) any non-cash charges reducing Consolidated Net Income for such
period (excluding any such non-cash charge to the extent that it represents
an accrual of or reserve for cash expenses in any future period or
amortization of a prepaid cash expense that was paid in a prior period);
MINUS
-7-
(v) any non-cash items increasing Consolidated Net Income for such
period (without duplication, excluding any reversal of a reserve for cash
expenses, if the establishment of such reserve had previously decreased
Consolidated Net Income),
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income
or profits of, and the depreciation and amortization of, a Restricted Subsidiary
of the referent Person shall be added to Consolidated Net Income to compute
Consolidated Cash Flow only to the extent (and in the same proportion) that the
Net Income of such Restricted Subsidiary was included in calculating the
Consolidated Net Income of such Person.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; PROVIDED that:
(i) the Net Income of any Person that is not a Restricted Subsidiary
shall be included only to the extent of the lesser of (x) the amount of
dividends or distributions paid in cash (but not by means of a loan) to the
referent Person or a Restricted Subsidiary thereof or (y) the referent
Person's (or, subject to clause (ii), a Restricted Subsidiary of the
referent Person's) proportionate share of the Net Income of such other
Person;
(ii) the Net Income (but not loss) of any Restricted Subsidiary shall
be excluded to the extent that the declaration or payment of dividends or
similar distributions by that Restricted Subsidiary of that Net Income is
not at the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary or its stockholders; and
(iii) the cumulative effect of a change in accounting principles shall
be excluded.
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any date, the
aggregate amount of assets (less applicable reserves and other properly
deductible items) of the Company and its Restricted Subsidiaries after deducting
therefrom (a) all current liabilities of the Company and its Restricted
Subsidiaries as of such date (excluding any such current liabilities that are,
by their terms, extendible or renewable at the option of the Company or the
applicable Restricted Subsidiary to a date more than 12 months after such date)
and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles,
-8-
all as set forth on the most recent balance sheet of the Company and its
Restricted Subsidiaries and computed in accordance with GAAP.
"CONTINUING DIRECTOR" means, as of the date of determination, any
Person who:
(i) was a member of the Board of Directors on the Issue Date; or
(ii) was nominated for election or elected to the Board of Directors
with the affirmative vote of at least a majority of the Continuing
Directors who were members of the Board of Directors at the time of such
nomination or election.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office as of the date hereof is listed in Section 12.02.
"COVENANT DEFEASANCE" has the meaning set forth in Section 9.03.
"CREDIT FACILITY" means, prior to the Assumption Date, the Existing
Credit Facility, and thereafter, one or more credit agreements to be dated as of
the Assumption Date by and among Solutia, the Subsidiary Guarantors and the
other parties thereto, including any related notes, instruments and agreements
executed in connection therewith, as amended, restated, modified, extended,
renewed, refunded, replaced or refinanced, in whole or in part, from time to
time, whether or not with the same lenders or agent.
"DEADLINE" means August 9, 2002 or such earlier time that Solutia
determines not to refinance its Credit Facility in the manner described in the
Offering Memorandum.
"DEFAULT" means any event that is, or with the giving of notice or the
lapse of time, or both, would constitute, an Event of Default.
"DEPOSITORY" means, with respect to the Notes issued in the form of
one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which Person must be a clearing agency
registered under the Exchange Act.
"DESIGNATED LETTERS OF CREDIT" means letters of credit for the account
of Solutia, which may have been issued, or may in the future be issued, by the
lenders that are party to the Credit Facility (but which letters of credit are
not issued pursuant to the Credit Facility), and which are or will be identified
in the Security Documents.
"DISINTERESTED MEMBER" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors of the
Company who (1) does not have any material direct or indirect financial interest
in or with respect to such transaction or series
-9-
of related transactions and (2) is not an Affiliate, officer, director or an
employee of any person (other than the Company or any Restricted Subsidiary) who
has any direct or indirect financial interest in or with respect to such
transaction or series of related transactions.
"DISQUALIFIED STOCK" means any Capital Stock of any Person that, by
its terms (or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder thereof, in whole or in part, on or prior
to the date on which the Notes mature (or in the case of the Company only, on or
prior to the earlier of the Assumption Date and the Special Mandatory Redemption
Date); PROVIDED that any Capital Stock that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to require
such Person to repurchase or redeem such Capital Stock upon the occurrence of an
"asset sale" or "change of control" occurring prior to the date on which the
Notes mature shall not constitute Disqualified Stock if the "asset sale" or
"change of control" provisions applicable to such Capital Stock are no more
favorable to the holders of such Capital Stock than the provisions contained in
Section 4.10 and Section 4.08 and such Capital Stock specifically provides that
such Person will not repurchase or redeem any such stock pursuant to such
provision prior to the Company's repurchase of such Notes as are required
pursuant to such Sections. The "liquidation preference" of any Disqualified
Stock shall be the amount payable thereon upon liquidation prior to any payment
to holders of common stock or, if none, the amount payable by the issuer thereof
upon maturity or mandatory redemption.
"ESCROW AGREEMENT" means the escrow and pledge agreement, dated as of
July 9, 2002, among SOI Funding Corp.,
Solutia Inc., the Trustee and the
Securities Intermediary.
"ESCROW ASSETS" means the property of the Company held by the
Securities Intermediary pursuant to the Escrow Agreement.
"EUROCLEAR" has the meaning set forth in Section 2.16.
"EVENT OF DEFAULT" has the meaning set forth in Section 6.01.
"EXCESS PROCEEDS" has the meaning set for in Section 4.12.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"EXCHANGE SECURITIES" has the meaning provided in the Registration
Rights Agreement.
-10-
"EXISTING CREDIT FACILITY" means the $800 million Amended and Restated
Five Year Credit Agreement, dated as of November 23, 1999 (as the same may have
been or will be amended, restated or otherwise modified), among Solutia, as
borrower, the lenders from time to time party thereto, Bank of America N.A., as
syndication agent, and Citibank, N.A., as administrative agent.
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and its
Restricted Subsidiaries in existence, and considered Indebtedness of the Company
or any of its Restricted Subsidiaries, on the Issue Date, until such amounts are
repaid, including all reimbursement obligations with respect to letters of
credit outstanding as of the date of this Indenture.
"EXISTING NOTES INDENTURE" means the indenture dated as of October 1,
1997 between Solutia and The Chase Manhattan Bank.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period
to the Fixed Charges of such Person for such period. In the event that the
Company or any of its Restricted Subsidiaries or any other applicable Person
incurs, assumes or redeems any Indebtedness (other than revolving credit
borrowings) or issues or redeems Disqualified Stock or Preferred Stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "CALCULATION DATE"),
then the Fixed Charge Coverage Ratio shall be calculated giving PRO FORMA effect
to such incurrence, assumption or redemption of Indebtedness or such issuance or
redemption of Disqualified Stock or Preferred Stock as if the same had occurred
at the beginning of the applicable four-quarter reference period.
In addition, for purposes of making the computation referred to above:
(i) acquisitions that have been made by the Company or any of its
Restricted Subsidiaries or any other applicable Person, including through
mergers or consolidations and including any related financing transactions,
during the four-quarter reference period or subsequent to such reference
period and on or prior to the Calculation Date shall be deemed to have
occurred on the first day of the four-quarter reference period;
(ii) the Consolidated Cash Flow and Fixed Charges attributable to
operations or businesses disposed of prior to the Calculation Date shall be
excluded, but, in the case of such Fixed Charges, only to the extent that
the obligations giving rise to such Fixed Charges will not be obligations
of the referent Person or any of its Restricted Subsidiaries following the
Calculation Date; and
-11-
(iii) if since the beginning of the four-quarter reference period any
Person was designated as an Unrestricted Subsidiary or redesignated as or
otherwise became a Restricted Subsidiary, such event shall be deemed to
have occurred on the first day of the four-quarter reference period.
"FIXED CHARGES" means, with respect to any Person for any period, the
sum, without duplication, of:
(i) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued,
determined in accordance with GAAP;
(ii) all commissions, discounts and other fees and charges incurred in
respect of letters of credit or bankers' acceptance financings, determined
in accordance with GAAP, and net payments or receipts (if any) pursuant to
Hedging Obligations of the types described in clauses (i) through (iii) of
the definition thereof to the extent such Hedging Obligations relate to
Indebtedness that is not itself a Hedging Obligation;
(iii) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
(iv) any interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured
by a Lien on assets of such Person or one of its Restricted Subsidiaries
(whether or not such Guarantee or Lien is called upon);
(v) amortization or write-off of debt discount in connection with any
Indebtedness of the Company and its Restricted Subsidiaries, on a
consolidated basis in accordance with GAAP, other than amortization of
deferred financing costs incurred on or prior to the Issue Date; and
(vi) the product of (a) all dividend payments (other than any payments
to the referent Person or any of its Restricted Subsidiaries and any
dividends payable in the form of Qualified Capital Stock) on any series of
Preferred Stock or Disqualified Stock of such Person and its Restricted
Subsidiaries, times (b) (x) a fraction, the numerator of which is one and
the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a decimal,
in each case, on a consolidated basis and in accordance with GAAP, or (y)
if the dividends are deductible by such Person for income tax purposes,
one.
"FOREIGN SUBSIDIARY" means any Restricted Subsidiary that is not
organized under the laws of the United States, any State thereof or the District
of Columbia.
-12-
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, as in effect on the Issue Date.
"GLOBAL NOTES" has the meaning set forth in Section 2.16.
"GUARANTEE" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or Disqualified
Stock of any other Person and, without limiting the generality of the foregoing,
any obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or Disqualified Stock of such other Person (including those
arising by virtue of partnership arrangements) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Indebtedness or
Disqualified Stock of the payment thereof or to protect such obligee against
loss in respect thereof in whole or in part (including by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, to
maintain financial statement conditions or otherwise); PROVIDED that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) forward foreign
exchange contracts or currency swap agreements, (iii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency values and (iv) commodity price protection agreements or
commodity price hedging agreements designed to manage fluctuations in prices or
costs in energy, raw materials, manufactured products or related commodities.
"HOLDER" or "NOTEHOLDER" means the person in whose name a Note is
registered on the Registrar's books.
"INCUR" means, with respect to any Indebtedness, to incur, create,
issue, assume or Guarantee such Indebtedness. If any Person becomes a Restricted
Subsidiary on any date after the Issue Date (including by redesignation of an
Unrestricted Subsidiary), the Indebtedness and Capital Stock of such Person
outstanding on such date will be deemed to have been Incurred by such Person on
such date for purposes of Section 4.09 but will not be considered the sale or
issuance of Capital Stock for purposes of Section 4.12. The accretion of
original issue discount or payment of interest in kind will not be considered an
incurrence of Indebtedness.
-13-
"INDEBTEDNESS" means, with respect to any Person,
(1) any indebtedness of such Person, whether or not contingent, in
respect of borrowed money or evidenced by bonds, notes, debentures or
similar instruments;
(2) letters of credit (or reimbursement agreements in respect
thereof) or bankers' acceptances;
(3) Capital Lease Obligations and Attributable Debt in respect of
Sale and Lease-Back Transactions;
(4) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued expense or
trade payable; and
(5) net Hedging Obligations,
if and to the extent any of the foregoing indebtedness (other than letters of
credit and Hedging Obligations) would appear as a liability on a balance sheet
of such Person prepared in accordance with GAAP, as well as
(a) all indebtedness of others secured by a Lien on any asset of such
Person whether or not such indebtedness is assumed by such Person; PROVIDED
that, for purposes of determining the amount of any Indebtedness of the
type described in this clause, if recourse with respect to such
Indebtedness is limited to such asset, the amount of such Indebtedness
shall be limited to the lesser of the fair market value of such asset or
the amount of such Indebtedness; and
(b) to the extent not otherwise included, the Guarantee by such
Person of any indebtedness of the types described above of any other
Person.
The amount of any Indebtedness outstanding as of any date shall be (i) the
accreted value thereof, in the case of any Indebtedness that does not require
current payments of interest, and (ii) the principal amount thereof, together
with any interest thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"INDENTURE" means this Indenture as amended, restated or supplemented
from time to time.
"INDEPENDENT FINANCIAL ADVISOR" means an investment banking firm of
national reputation in the United States which, in the judgment of the majority
of the Disinterested Members of the Board of Directors of the Company, is
independent and qualified to perform the task for which it is to be engaged.
-14-
"INDUSTRIAL DEVELOPMENT BONDS" means obligations issued or guaranteed
by, or supported by the full faith and credit of, a State, a Commonwealth, a
Territory or a possession of the United States of America, or any political
subdivision or governmental authority of any of the foregoing, or the District
of Columbia.
"INITIAL PLACEMENT" has the meaning provided in the Registration
Rights Agreement.
"INITIAL PURCHASERS" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Banc of America
Securities LLC, ▇.▇. ▇▇▇▇▇▇ Securities Inc., Banc One Capital Markets, Inc.,
HSBC Securities (USA), Inc., ▇▇ ▇▇▇▇▇ Securities Corporation, and U.S. Bancorp
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
"INTEREST" means, with respect to the Notes, interest and Liquidated
Damages.
"INTEREST PAYMENT DATE" means July 15 and January 15 of each year.
"INVESTMENT GRADE" means a rating of BBB- or higher by S&P and Baa3 or
higher by ▇▇▇▇▇'▇ or the equivalent of such ratings by S&P or Moody's.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in another Person (including an Affiliate of such Person) in the
form of direct or indirect loans, advances or extensions of credit to such other
Person (including any Guarantee by such Person of the Indebtedness or
Disqualified Stock of such other Person) or capital contributions or purchases
or other acquisitions for consideration of Indebtedness, Capital Stock or other
securities of such other Person, together with all items that are or would be
classified as investments of such investing Person on a balance sheet prepared
in accordance with GAAP; PROVIDED that:
(w) investments made in connection with a bankruptcy proceeding in
substitution of the Company's interest as a creditor in such proceeding;
(x) trade credit and accounts receivable in the ordinary course of
business;
(y) commissions, loans, advances, fees and compensation paid in the
ordinary course of business to officers, directors and employees; and
(z) reimbursement obligations in respect of letters of credit and
tender, bid, performance, government contract, surety and appeal bonds,
in each case solely with respect to obligations of the Company or any of its
Restricted Subsidiaries, shall not be considered Investments.
"ISSUE DATE" means the date hereof, the date of initial issuance of
the Notes.
-15-
"JOINT VENTURE" means any joint venture between the Company or any
Restricted Subsidiary and any other Person, whether or not such joint venture is
a Subsidiary of the Company or any Restricted Subsidiary.
"JUNIOR INTERCREDITOR AGREEMENT" has the meaning set forth in the
definition of Security Documents.
"JUNIOR SECURITY AGREEMENT" has the meaning set forth in the
definition of Security Documents.
"JUNIOR SECURITY DOCUMENTS" means the Junior Intercreditor Agreement
and the Junior Security Agreement, in each case, as defined below.
"LEGAL DEFEASANCE" has the meaning set forth in Section 9.02.
"LEGAL HOLIDAY" has the meaning set forth in Section 12.07.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, and any
lease in the nature thereof), or the assignment or conveyance of any right to
receive income therefrom.
"LIQUIDATED DAMAGES" has the meaning assigned to such term in EXHIBIT
A.
"MATURITY DATE" when used with respect to any Note, means the date on
which the principal amount of such Note becomes due and payable as therein or
herein provided.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined, in accordance with GAAP and before any reduction in
respect of Preferred Stock dividends, excluding, however,
(i) any gain or loss, together with any related provision for taxes
on such gain or loss, realized in connection with
(a) any Asset Sale or any disposition pursuant to a Sale
and Lease-Back Transaction or
(b) the disposition of any securities by such Person or any
of its Restricted Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries;
and
-16-
(ii) any extraordinary gain or loss, together with any related
provision for on such extraordinary gain or loss.
"NET PROCEEDS" means the aggregate cash proceeds (excluding any
proceeds deemed to be "cash" pursuant to Section 4.12 received by the Company or
any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of (i) the direct
out-of-pocket costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees and sales commissions) and any
relocation expenses incurred as a result thereof, (b) taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), (iii) amounts required to be
applied to the repayment of Indebtedness (other than Indebtedness under the
Credit Facility) secured by a Lien on any asset sold in such Asset Sale, or
which must by the terms of such Lien or by applicable law be repaid out of the
proceeds of such Asset Sale, (iv) all payments made with respect to liabilities
directly associated with the assets which are the subject of the Asset Sale,
including, without limitation, trade payables and other accrued liabilities, and
(v) any reserves for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP and any reserve for future
liabilities established in accordance with GAAP; PROVIDED that the reversal of
any such reserve that reduced Net Proceeds when issued shall be deemed a receipt
of Net Proceeds in the amount of such proceeds on such day.
"NON-U.S. PERSON" means a Person who is not a U.S. person, as defined
in Regulation S.
"NOTES" means the 11.25% Senior Secured Notes Due 2009 issued by the
Company, including, without limitation, the Exchange Securities, treated as a
single class of securities, as amended from time to time in accordance with the
terms hereof, that are issued pursuant to this Indenture.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness and in all cases whether direct or
indirect, absolute or contingent, now outstanding or hereafter created, assumed
or incurred and including, without limitation, interest accruing subsequent to
the filing of a petition in bankruptcy or the commencement of any insolvency,
reorganization or similar proceedings at the rate provided in the relevant
documentation, whether or not an allowed claim, and any obligation to redeem or
defease any of the foregoing.
"OFFERING MEMORANDUM" means the offering memorandum dated July 2, 2002
relating to the offering of Units issued on the Issue Date.
-17-
"OFFICERS" means any of the following: Chairman, President, Chief
Executive Officer, Treasurer, Chief Financial Officer, Secretary, Controller or
any Senior Vice President.
"OFFICERS' CERTIFICATE" means a certificate signed by two Officers.
"OPINION OF COUNSEL" means a written opinion from legal counsel (who
may be counsel to the Company or the Subsidiary Guarantors) stating the matters
required by Section 12.05 and delivered to the Trustee.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the Company or a
Subsidiary Guarantor that is not subordinated to the Notes or such Subsidiary
Guarantor's Subsidiary Guarantee, as the case may be.
"PAYING AGENT" has the meaning set forth in Section 2.04.
"PAYMENT DEFAULT" means, with respect to any Indebtedness, a failure
to pay principal of such Indebtedness at its Stated Maturity after giving effect
to any applicable grace period provided in the instrument(s) governing such
Indebtedness.
"PERMITTED BUSINESS" means the business of manufacturing, selling, and
providing research and development services and support for, pharmaceuticals and
chemical-based materials and any business reasonably related, incidental,
complementary or ancillary thereto.
"PERMITTED INVESTMENTS" means:
(a) any Investment in the Company or in a Restricted Subsidiary of
the Company that is engaged in a Permitted Business;
(b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Subsidiary of the Company in
a Person, if as a result of such Investment: (i) such Person becomes a
Restricted Subsidiary of the Company engaged in a Permitted Business or
(ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company engaged in a
Permitted Business;
(d) any non-cash consideration received as consideration in an Asset
Sale that was made pursuant to and in compliance with the provisions
described in Section 4.12;
-18-
(e) any acquisition of assets or Capital Stock solely in exchange
for, or out of the net cash proceeds of a substantially concurrent issuance
of, Capital Stock (other than Disqualified Stock) of the Company;
(f) Hedging Obligations entered into in the ordinary course of
business and otherwise permitted under this Indenture;
(g) any Investment received by the Company or any Restricted
Subsidiary as consideration for the settlement of any litigation,
arbitration or claim in bankruptcy or in partial or full satisfaction of
accounts receivable owed by a financially troubled Person to the extent
reasonably necessary in order to prevent or limit any loss by the Company
or any of its Restricted Subsidiaries in connection with such accounts
receivable;
(h) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(i) loans and advances to directors, employees and officers of the
Company and its Restricted Subsidiaries for bona fide business purposes or
to purchase Capital Stock of the Company not in excess of $10 million at
any one time outstanding;
(j) advances to customers of the Company and its Subsidiaries that
are made in the ordinary course of business and are consistent with past
practice in an aggregate amount not to exceed at any time outstanding $5
million; and
(k) Investments in an aggregate amount, taken together with all other
Investments made in reliance on this clause (k), not to exceed at any time
outstanding $25 million (after giving effect to any reductions in the
aggregate amount of such Investments as a result of the disposition
thereof, including through liquidation, repayment or other reduction,
including by way of dividend or distribution, for cash, the aggregate
amount of such reductions not to exceed the aggregate amount of such
Investments outstanding and previously made pursuant to this clause (k)).
"PERMITTED LIENS" means:
(1) Liens in favor of the Company or any Subsidiary Guarantor;
(2) Liens securing the Notes and the Subsidiary Guarantees;
(3) Liens on property of a Person existing at the time it becomes a
Subsidiary or at the time it is merged into or consolidated with the
Company or a Subsidiary; PROVIDED
-19-
that such Liens were in existence prior to the contemplation of such
merger, consolidation or acquisition and do not extend to any assets of the
Company or its Restricted Subsidiaries other than those of the Person
merged into or consolidated with the Company or that becomes a Restricted
Subsidiary of the Company;
(4) Liens on property (together with general intangibles and
proceeds related to such property) existing at the time of acquisition
thereof by the Company or any Restricted Subsidiary of the Company;
PROVIDED that such Liens were in existence prior to the contemplation of
such acquisition;
(5) Liens (including the interest of a lessor under a capital lease)
on any asset (together with general intangibles and proceeds related to
such property) existing at the time of acquisition thereof or incurred
within 180 days following the time of acquisition or completion of
construction thereof, whichever is later, to secure or provide for the
payment of all or any part of the purchase price (or construction price)
thereof (including obligations of the lessee under any such capital lease);
(6) Liens imposed by law, such as laborers', other employees',
vendors', materialmen's, carriers', warehousemen's and mechanics' Liens on
the property of the Company or any Restricted Subsidiary, including Liens
arising out of letters of credit issued to secure the Company's obligations
thereunder;
(7) easements, building restrictions, rights-of-ways, irregularities
of title and such other encumbrances or charges not interfering in any
material respect with the ordinary conduct of business of the Company or
any of its Restricted Subsidiaries;
(8) leases, subleases or licenses by the Company or any of its
Restricted Subsidiaries as lessor, sublessor or licensor in the ordinary
course of business and otherwise permitted by this Indenture;
(9) Liens securing reimbursement obligations with respect to
commercial letters of credit obtained in the ordinary course of business
which encumber documents and other property or assets relating to such
letters of credit and products and proceeds thereof;
(10) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of nondelinquent customs duties in
connection with the importation of goods;
(11) Liens encumbering customary initial deposits and margin
deposits, netting provisions and setoff rights, in each case securing
Indebtedness under Hedging Obligations that are permitted to be incurred
under clause (vi) of Section 4.09;
-20-
(12) Liens incurred in the ordinary course of business to secure
nondelinquent obligations arising from statutory, regulatory, contractual
or warranty requirements of the Company or its Restricted Subsidiaries,
including Liens securing letters of credit issued to secure the Company's
obligations thereunder, or any tender, bid, performance, government
contract, surety or appeal bonds or other obligations of a like nature for
which a reserve or other appropriate provision, if any, as shall be
required by GAAP shall have been made;
(13) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by the Company or any Restricted Subsidiary in
the ordinary course of business in accordance with industry practice;
(14) Liens arising by reason of deposits necessary to qualify the
Company or any Restricted Subsidiary to conduct business, maintain
self-insurance or comply with any law;
(15) Liens upon any Principal Property to the extent such Liens are
or would have been permitted by the provisions of the Existing Notes
Indenture (as such Existing Notes Indenture is in effect on the Issue Date)
without equally and ratably securing any other Indebtedness of the Company;
(16) Liens securing, or permitted by, the Bank Obligations on any
tangible or intangible asset or property of the Company or any Restricted
Subsidiary other than Principal Property, whether such asset or property is
real, personal or mixed, to the extent such Liens are or would have been
permitted by the provisions of the Existing Notes Indenture (as such
Existing Notes Indenture is in effect on the Issue Date) without equally
and ratably securing any other Indebtedness of the Company; PROVIDED that
any such Lien on such asset or property shall also be granted for the
benefit of the Holders of the Notes and the Subsidiary Guarantees and such
Lien shall be inferior only to Liens securing the Bank Obligations and any
intercreditor agreement or other agreement pertaining to relative rights in
such Collateral shall not be any less favorable than the Junior
Intercreditor Agreement as in effect at such time or as last in effect;
PROVIDED, FURTHER, that notwithstanding the immediately preceding proviso,
the Credit Facility shall be allowed to be secured by Liens on assets or
property of Foreign Subsidiaries that secure the Credit Facility on the
Assumption Date without securing the Notes and the Subsidiary Guarantees;
(17) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings, prejudgment Liens that are being contested in good
faith by appropriate proceedings and Liens arising out of judgments or
awards against the Company or any Restricted Subsidiary with respect to
which the Company or such Restricted Subsidiary at the
-21-
time shall be prosecuting an appeal or proceedings for review and with
respect to which it shall have secured a stay of execution pending such
appeal or proceedings for review; PROVIDED that in each case any reserve or
other appropriate provision as shall be required in conformity with GAAP
shall have been made therefor;
(18) Liens securing assets under construction arising from progress
or partial payments by a customer of the Company or its Restricted
Subsidiaries relating to such property or assets;
(19) Liens resulting from the deposit of funds or evidences of
Indebtedness in trust for the purpose of (A) defeasing Indebtedness of the
Company or any of its Restricted Subsidiaries having an aggregate principal
amount at any one time outstanding of no more than $20 million (so long as
such defeasance and related repayment of Indebtedness is in compliance with
Section 4.10) or (B) defeasing Indebtedness ranking PARI PASSU with the
Notes; PROVIDED that the Notes are defeased concurrently with such
Indebtedness;
(20) customary Liens for the fees, costs and expenses of trustees and
escrow agents pursuant to any indenture, escrow agreement or similar
agreement establishing a trust or escrow arrangement, and Liens pursuant to
merger agreements, stock purchase agreements, asset sale agreements, option
agreements and similar agreements in respect of the disposition of property
or assets of the Company or any Restricted Subsidiary on the property to be
disposed of, to the extent such dispositions are permitted by this
Indenture;
(21) Liens on assets (other than Principal Property) of the Company
or any Restricted Subsidiary arising as a result of a Sale and Lease-Back
Transaction with respect to such assets; PROVIDED that the proceeds from
such Sale and Lease-Back Transaction are applied to the repayment of
Indebtedness or acquisition of Additional Assets or the making of capital
expenditures pursuant to Section 4.12;
(22) Liens existing on the Issue Date, other than Liens securing
Indebtedness under the Bank Obligations;
(23) the interest of a lessor or licensor under an operating lease or
license under which the Company or any of its Restricted Subsidiaries is
lessee, sublessee or licensee, including protective financing statement
filings;
(24) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), as a whole
or in part, of any of the Liens described in clauses (1) through (23) of
this definition; PROVIDED that such extension,
-22-
renewal or replacement Lien shall be limited to the same property or assets
that secured the Lien being so extended, renewed or replaced;
(25) other Liens on assets of the Company or any Restricted
Subsidiary of the Company securing Indebtedness or other obligations to be
outstanding having an aggregate principal amount at any one time
outstanding not to exceed $10 million;
(26) licenses or leases by the Company or any of its Restricted
Subsidiaries as licensor or lessor in the ordinary course of business and
otherwise permitted by this Indenture for patents, copyrights, trademarks,
trade names and other intellectual property; and
(27) netting provisions and setoff rights in favor of counterparties
to agreements creating Hedging Obligations.
"PERMITTED REFINANCING" means any Indebtedness of the Company or any
of its Subsidiaries issued in exchange for, or the net proceeds of which are
used solely to extend, refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Restricted Subsidiaries; PROVIDED
that:
(i) the principal amount (or liquidation preference in the case of
Preferred Stock) of such Permitted Refinancing (or if such Permitted
Refinancing is issued at a discount, the initial issuance price of such
Permitted Refinancing) does not exceed the principal amount of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of any premiums paid and reasonable expenses
incurred in connection therewith);
(ii) such Permitted Refinancing has a Stated Maturity date later than
the Stated Maturity date of, and has a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated by its terms in right of
payment to the Notes or the Subsidiary Guarantees, such Permitted
Refinancing has a Stated Maturity date later than the Stated Maturity date
of, and is subordinated by its terms in right of payment to, the Notes on
subordination terms at least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded;
-23-
(iv) such Indebtedness is incurred by the Company or a Subsidiary
Guarantor if the Company or a Subsidiary Guarantor is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
(v) such Indebtedness is incurred by the Company or a Restricted
Subsidiary if a Restricted Subsidiary that is not a Subsidiary Guarantor is
the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
Notwithstanding the foregoing, Solutia shall be allowed to modify,
amend or replace its Obligations under the Astaris Support Agreement; PROVIDED
that the terms of any such modification, amendment or replacement do not
materially increase Solutia's or any Restricted Subsidiary's obligations
thereunder and such terms (including as to tenor) are not more onerous from a
financial perspective, taken as a whole, to Solutia and its Restricted
Subsidiaries.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or other entity of any kind.
"PHYSICAL NOTES" means certificated Notes in registered form in
substantially the form set forth in EXHIBIT A.
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of preferred or preference stock of such Person
which is outstanding or issued on or after the date of this Indenture.
"PRINCIPAL" of a Note means the principal of the Note plus the
premium, if any, payable on the Note which is due or overdue or is to become due
at the relevant time.
"PRINCIPAL PROPERTY" means any building, structure or other facility
used primarily for manufacturing and located in the United States (excluding its
territories and possessions, but including Puerto Rico), the gross book value of
which on the date as of which the determination is being made is an amount which
exceeds 3% of Consolidated Net Tangible Assets, other than any such building,
structure or other facility or any portion thereof (i) which is financed by
Industrial Development Bonds or (ii) which, in the opinion of the Board of
Directors of the Company, is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries taken as a whole.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Rule 144A Notes and Other Notes that are Restricted Notes in the form set forth
in EXHIBIT B.
-24-
"PUBLIC EQUITY OFFERING" means any underwritten public offering of
common stock of Solutia generating gross proceeds to Solutia of at least $50
million.
"PURCHASE AGREEMENT" means the purchase agreement, dated as of July 2,
2002 among SOI Funding, Solutia, the Subsidiary Guarantors and the Initial
Purchasers.
"PURCHASE MONEY OBLIGATIONS" means Indebtedness of the Company or a
Subsidiary Guarantor incurred in the ordinary course of business for the purpose
of financing all or any part of the purchase price or cost of installation,
construction or improvement of an asset; PROVIDED, HOWEVER, that (1) the amount
of such Indebtedness shall not exceed such purchase price or cost, (2) such
Indebtedness shall not be secured by any asset other than the asset being
financed, or in the case of real property or fixtures, the real property or
fixtures to which such asset is attached and (3) such Indebtedness shall be
incurred within 180 days after the acquisition of such asset by the Company or
such Subsidiary Guarantor, or such installation, construction or improvement.
"QUALIFIED CAPITAL STOCK" shall mean all Capital Stock of a Person
other than Disqualified Stock of such Person.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning
specified in Rule 144A promulgated under the Securities Act.
"REDEMPTION DATE" when used with respect to any Note to be redeemed
pursuant to paragraph 5 of the Notes means the date fixed for such redemption
pursuant to the terms of the Notes.
"REGISTRAR" has the meaning set forth in Section 2.04.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights
agreement dated as of the Issue Date among Solutia, the Subsidiary Guarantors
named therein and the Initial Purchasers.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL NOTE" has the meaning set forth in Section 2.16.
"REGULATION S NOTES" has the meaning set forth in Section 2.02.
"RESPONSIBLE OFFICER" shall mean, when used with respect to the
Trustee, any officer in the Corporate Trust Department of the Trustee including
any vice president, assistant vice president or any other officer of the Trustee
who customarily performs functions similar to those performed by the Persons who
at the time shall be such officers, respectively,
-25-
and to whom any corporate trust matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"RESTRICTED GLOBAL NOTE" has the meaning set forth in Section 2.16.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED NOTE" has the same meaning as "Restricted Security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; PROVIDED that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"RESTRICTED SUBSIDIARY" of the Company means (a) prior to the first
time that the Notes are rated Investment Grade, any Subsidiary of the Company
that is not an Unrestricted Subsidiary and (b) from and after the first time
that the Notes are rated Investment Grade, any Subsidiary of the Company
(whether or not the Company has previously designated such Subsidiary as an
Unrestricted Subsidiary) (1) more than 50% of whose net sales and operating
revenues during the preceding four calendar quarters were derived in, or more
than 50% of whose operating properties are located in, the United States
(excluding its territories and possessions, but including Puerto Rico) or (2)
more than 50% of whose assets consist of securities of other Restricted
Subsidiaries or (3) which owns a Principal Property, except that certain export
sales, banking, insurance, finance, real estate, construction and unconsolidated
Subsidiaries do not constitute Restricted Subsidiaries so long as they shall not
own any Principal Property. Unless the context otherwise requires, each
reference to a "Restricted Subsidiary" shall refer to a Subsidiary of the
Company.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 144A NOTES" has the meaning set forth in Section 2.02.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"SEC" means the U.S. Securities and Exchange Commission
"SALE AND LEASE-BACK TRANSACTION" means any arrangement with any
Person (other than the Company or a Subsidiary), or to which any such Person is
a party, providing for the leasing, pursuant to a capital lease that would at
such time be required to be capitalized on a balance sheet in accordance with
GAAP, to the Company or a Restricted Subsidiary of
-26-
any property or asset which has been or is to be sold or transferred by the
Company or such Restricted Subsidiary to such Person or to any other Person
(other than the Company or a Subsidiary) to which funds have been or are to be
advanced by such Person.
"SECURITIES ACCOUNT CONTROL AGREEMENT" means the securities account
control agreement dated July 9, 2002 among SOI Funding, the Securities
Intermediary and the Trustee.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"SECURITIES INTERMEDIARY" means Citibank, N.A.
"SECURITY DOCUMENTS" means (1) prior to the Assumption Date, the
Escrow Agreement and the Securities Account Control Agreement and (2) from and
after the Solutia Assumption (i) the Intercreditor and Collateral Trust
Agreement to be dated as of the date of the Solutia Assumption by and among
Solutia, CPFilms Inc, a Delaware corporation ("CPF"), Citibank, N.A., as
administrative agent under the Solutia Credit Agreement referred to therein,
Bank of America, N.A., as administrative agent under the Astaris Credit
Agreement referred to therein, Citibank, N.A., as agent under the Co-gen
Participation Agreement referred to therein, Citibank, N.A., as collateral agent
under the Non-Sharing Intercreditor Agreement referred to therein, and HSBC Bank
USA, as collateral trustee (the "COLLATERAL TRUSTEE"), (the "SHARING
INTERCREDITOR AGREEMENT"), (ii) the Security Agreement dated as of the date of
the Solutia Assumption between the Company, CPF and the Collateral Trustee (the
"SHARING SECURITY AGREEMENT"); (iii) the Sharing Mortgages (as defined in the
Sharing Intercreditor Agreement), and any modifications or confirmations
thereto: Decatur, Alabama; Pensacola, Florida; Indian Orchard, Massachusetts;
Trenton, Michigan; Greenwood, South Carolina; Alvin, Texas; and Martinsville,
Virginia; (iv) the Junior Intercreditor Agreement substantially in the form of
EXHIBIT G dated as of the Assumption Date (the "JUNIOR INTERCREDITOR AGREEMENT")
among Solutia, the Subsidiary Guarantors, Citibank, N.A. and the Trustee; and
(vii) the Junior Security Agreement dated as of the Assumption Date
substantially in the form of EXHIBIT H (the "JUNIOR SECURITY AGREEMENT") among
Soluta Inc., the Subsidiary Guarantors, Citibank, N.A. and the Trustee, and all
other mortgages, deeds of trust, pledge agreements, collateral assignments,
security agreements, fiduciary transfers, debentures, fiduciary assignments or
other instruments evidencing or creating any security interests or Liens in
favor of the Trustee, in each case as amended, replaced, modified, or restated
from time to time in accordance with its terms and the terms of this Indenture.
"SHARING SECURITY DOCUMENTS" means the Sharing Intercreditor
Agreement, the Sharing Security Agreement and the Sharing Mortgages.
-27-
"SIGNIFICANT SUBSIDIARY" means any Restricted Subsidiary of the
Company that would be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933, as
amended, as such Regulation is in effect on the Issue Date.
"SOLUTIA" means Solutia, Inc., a Delaware corporation.
"SOLUTIA ASSUMPTION" means the assumption by Solutia and the
Subsidiary Guarantors of the obligations of SOI Funding under this Indenture and
the Notes, in accordance with the terms of the Escrow Agreement.
"SPECIAL MANDATORY REDEMPTION DATE" means the 20th day after the
Deadline (or if such day is not a Business Day, the first Business Day
thereafter (as evidenced in a written statement to that effect delivered to the
Trustee)).
"SPECIAL MANDATORY REDEMPTION PRICE" means (a) $206,702,624.80 (which
amount is equal to 103% of the original issue amount of the Units
($200,682,160.00)) plus (b) the accrued and unpaid interest on the Notes from
and including the Issue Date to but excluding the Special Mandatory Redemption
Date.
"SPECIAL REDEMPTION TRIGGER" has the meaning set forth in
Section 3.07.
"STATED MATURITY" means, with respect to any installment of interest
or principal on any series of Indebtedness, the date on which such payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness (or any later date established by any amendment to
such original documentation) and shall not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"SUBORDINATED DEBT" means Indebtedness that is by its terms
subordinated to the Notes and the Subsidiary Guarantees, as applicable.
"SUBSIDIARY" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination
thereof) or (ii) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or of one or more
Subsidiaries such Person (or any combination thereof).
-28-
"SUBSIDIARY GUARANTEE" means a guarantee of the Notes by a Subsidiary
Guarantor.
"SUBSIDIARY GUARANTOR" means any Subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of this Indenture, in each case,
until the Subsidiary Guarantee of such Person is released in accordance with the
provisions of this Indenture.
"SURVIVING PERSON" has the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03).
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means the
successor.
"UNITS" means the 223,000 units issued on the Issue Date pursuant to
the Offering Memorandum comprising $223 million aggregate principal amount of
Notes and 223,000 warrants to purchase an aggregate of 5,533,522 shares of
common stock of Solutia, par value $.01 per share.
"UNRESTRICTED SUBSIDIARY" means (i) each of Solutia Chemical Co.,
Ltd., Suzhou, Solutia Hellas EPE, Solutia Management Company, Inc., Solutia
Netherlands Holding B.V., Solutia Netherlands International B.V., Solutia
Kimyasak pazarlama ve Ticaret Limited Sirketi, Solutia Therminal Co., Ltd.,
Suzhou, Solutia UK Capital Limited, Solutia GOM India Coatings Materials Private
Limited, Vianova Resins, Inc., Vianova Resins N.V./S.A., Vianova Resins Canada
Inc., Vianova Resins, Resinas Quimicas Limitada, Viking Finance III B.V., Viking
Resins Germany Holdings GmbH & Co. KG, Viking Resins Group Holding B.V. and
Zweite Viking Resins Germany 2 GmbH, (ii) any Subsidiary of the Company that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
resolution and (iii) any Subsidiary of an Unrestricted Subsidiary. The Board of
Directors may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless
such Subsidiary or any of its Subsidiaries owns any Capital Stock or
Indebtedness of, or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; PROVIDED that
(a) any Guarantee by the Company or any Restricted Subsidiary of any
Indebtedness of the Subsidiary being so designated or any of its
Subsidiaries shall be deemed an "incurrence" of such Indebtedness and an
"Investment" by the Company or such Restricted Subsidiary (or both, if
applicable) at the time of such designation,
(b) such designation would be permitted by Section 4.10, and
-29-
(c) if applicable, the Investment and the incurrence of Indebtedness
referred to in clause (a) of this proviso would be permitted by Section
4.09 and Section 4.10.
Any such designation by the Board of Directors pursuant to clause (i)
above shall be evidenced to the Trustee by filing with the Trustee a certified
copy of the resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
conditions and was permitted by Section 4.09 and Section 4.10.
If at any time the Company or any Restricted Subsidiary Guarantees any
Indebtedness of such Unrestricted Subsidiary or makes any other Investment in
such Unrestricted Subsidiary and such incurrence of Indebtedness or Investment
would not be permitted by Section 4.09 and Section 4.10, it shall thereafter
cease to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted
Subsidiary of the Company as of such date (and, if such Indebtedness is not
permitted to be incurred as of such date in Section 4.09, the Company shall be
in default of such Section). The Board of Directors may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED that such
designation shall be deemed to be an incurrence of Indebtedness by a Restricted
Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if (i) such Indebtedness
is permitted by Section 4.09 and (ii) no Default or Event of Default would be in
existence following such designation.
"U.S. GOVERNMENT OBLIGATIONS" shall mean securities that are (1)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as full faith and
credit obligation by the United States of America, that, in either case, are not
callable or redeemable at the option of the issuer thereof and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligations held by such
custodian for the account of the holder of a depository receipt; PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt for
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
"VALUE" means, with respect to a Sale and Lease-Back Transaction, the
amount equal to the greater of (i) the net proceeds of the sale or transfer of
the property leased pursuant to such Sale and Lease-Back Transaction or (ii) the
fair value, in the opinion of the Board of Directors, of such property at the
time of entering into such Sale and Lease-Back Transaction,
-30-
in either case divided first by the number of full years of the term of the
lease and then multiplied by the number of full years of such term remaining at
the time of determination, without regard to any renewal or extension options
contained in the lease.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(i) the sum of the products obtained by multiplying
(a) the amount of each then remaining installment, sinking
fund, serial maturity or other required payment of principal,
including payment at final maturity, in respect thereof, by
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by
(ii) the then outstanding principal amount of such Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of any Person means a Restricted
Subsidiary of such Person all the outstanding Capital Stock of which (other than
directors' qualifying shares) shall at the time be owned by such Person or by
one or more Wholly Owned Restricted Subsidiaries of such Person or by such
Person and one or more Wholly Owned Restricted Subsidiaries of such Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the portion
of such provision required to be incorporated herein in order for this Indenture
to be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"obligor on this indenture securities" means the Company, the
Subsidiary Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined in the TIA by reference to another statute or defined by Commission rule
have the meanings therein assigned to them.
-31-
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural
include the singular;
(4) words used herein implying any gender shall apply to both
genders;
(5) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subsection;
(6) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP as in effect from time to time,
applied on a basis consistent with the most recent audited consolidated
financial statements of the Company;
(7) "$," "U.S. Dollars" and "United States Dollars" each refer to
United States dollars, or such other money of the United States that at the
time of payment is legal tender for payment of public and private debts;
and
(8) whenever in this Indenture there is mentioned, in any context,
principal, interest or any other amount payable under or with respect to
any Note, such mention shall be deemed to include mention of the payment of
Liquidated Damages to the extent that, in such context, Liquidated Damages
are, were or would be payable in respect thereof.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. AMOUNT OF NOTES.
The Trustee shall initially authenticate Notes for original issue on
the Issue Date in an aggregate principal amount of $223 million upon a written
order of the Company in
-32-
the form of an Officers' Certificate of the Company (other than as provided in
Section 2.08). The Trustee shall authenticate additional Notes ("ADDITIONAL
NOTES") thereafter in unlimited amount (so long as permitted by the terms of
this Indenture, including, without limitation, Section 4.09) for original issue
upon a written order of the Company in the form of an Officers' Certificate in
aggregate principal amount as specified in such order (other than as provided in
Section 2.08). Each such written order shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated.
SECTION 2.02. FORM AND DATING.
The Notes and the Trustee's certificate of authentication with respect
thereto shall be substantially in the form set forth in EXHIBIT A, which is
incorporated in and forms a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, rule or usage to which the
Company is subject. Without limiting the generality of the foregoing, Notes
offered and sold to Qualified Institutional Buyers in reliance on Rule 144A
("RULE 144A NOTES") shall bear the legend and include the form of assignment set
forth in EXHIBIT B, Notes offered and sold in offshore transactions in reliance
on Regulation S ("REGULATION S NOTES") shall bear the legend and include the
form of assignment set forth in EXHIBIT C. Each Note shall be dated the date of
its authentication.
The terms and provisions contained in the Notes shall constitute, and
are expressly made, a part of this Indenture and, to the extent applicable, the
Company, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
agree to be bound thereby.
The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
The Notes shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Notes may be manual or facsimile.
If an Officer whose signature is on a Note was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such
-33-
Note has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such Note to
the Trustee for cancellation as provided in Section 2.12, for all purposes of
this Indenture such Note shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate the Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
Each Paying Agent is designated as an authenticating agent for purposes of this
Indenture.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange (the "REGISTRAR"), and an
office or agency where Notes may be presented for payment (the "PAYING AGENT")
and an office or agency where notices and demands to or upon the Company, if
any, in respect of the Notes and this Indenture may be served. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company may have one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. Neither the Company nor any Affiliate
thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement, which
shall incorporate the provisions of the TIA, with any Agent that is not a party
to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the
name and address of any such Agent. If the Company fails to maintain a Registrar
or Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying Agent
and Agent for service of notices and demands in connection with the Notes and
this Indenture.
-34-
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of the
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of or premium or interest on the Notes (whether such money has been
paid to it by the Company or any other obligor on the Notes or the Subsidiary
Guarantors), and the Company and the Paying Agent shall notify the Trustee of
any default by the Company (or any other obligor on the Notes) in making any
such payment. Money held in trust by the Paying Agent need not be segregated
except as required by law and in no event shall the Paying Agent be liable for
any interest on any money received by it hereunder. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 6.01(1) or (2), upon written
request to the Paying Agent, require such Paying Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying Agent shall have no further liability for the
money delivered to the Trustee.
SECTION 2.06. NOTEHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Noteholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date,
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Noteholders.
SECTION 2.07. TRANSFER AND EXCHANGE.
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. Every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute and the Trustee
shall authenticate new Notes (and the Subsidiary Guarantors shall execute the
guarantee thereon) evidencing such transfer or exchange at the Registrar's
request. No service charge shall be made to the Noteholder for any registration
of transfer or exchange. The Company may require from the Noteholder payment of
a sum sufficient to cover any transfer taxes or other governmental charge that
may be imposed in relation to a transfer or exchange, but this provision shall
not apply to any exchange pursuant to Section 2.11, 3.06, 4.08, 4.12 or 8.05 (in
which events the Company shall be responsible
-35-
for the payment of such taxes). The Registrar shall not be required to exchange
or register a transfer of any Note for a period of 15 days immediately preceding
the mailing of notice of redemption of Notes to be redeemed or of any Note
selected, called or being called for redemption except the unredeemed portion of
any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such Global
Note, agree that transfers of the beneficial interests in such Global Note may
be effected only through a book entry system maintained by the Holder of such
Global Note (or its agent), and that ownership of a beneficial interest in the
Global Note shall be required to be reflected in a book entry.
Except as expressly provided herein, neither the Trustee nor the
Registrar shall have any duty to monitor the Company's compliance with or have
any responsibility with respect to the Company's compliance with any Federal or
state securities laws.
SECTION 2.08. REPLACEMENT NOTES.
If a mutilated Note is surrendered to the Registrar or the Trustee, or
if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Note (and the Subsidiary Guarantors shall execute the guarantee
thereon) if the Holder of such Note furnishes to the Company and the Trustee
evidence reasonably acceptable to them of the ownership and the destruction,
loss or theft of such Note and if the requirements of Section 8-405 of the
New
York Uniform Commercial Code as in effect on the date of this Indenture are met.
If required by the Trustee or the Company, an indemnity bond shall be posted,
sufficient in the judgment of all to protect the Company, the Subsidiary
Guarantors, the Trustee or any Paying Agent from any loss that any of them may
suffer if such Note is replaced. The Company may charge such Holder for the
Company' reasonable out-of-pocket expenses in replacing such Note and the
Trustee may charge the Company for the Trustee's expenses (including, without
limitation, attorneys' fees and disbursements) in replacing such Note. Every
replacement Note shall constitute a contractual obligation of the Company.
SECTION 2.09. OUTSTANDING NOTES.
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by it, (b) those
delivered to it for cancellation, (c) to the extent set forth in Sections 9.01
and 9.02, on or after the date on which the conditions set forth in Section 9.01
or 9.02 have been satisfied, those Notes theretofore authenticated and delivered
by the Trustee hereunder and (d) those described in this Section 2.09 as not
outstanding. Subject to Section 2.10, a Note does not cease to be outstanding
because the Company or one of its Affiliates holds the Note.
-36-
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on any Maturity
Date, money sufficient to pay all accrued interest and principal with respect to
the Notes payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms of this Indenture, then on and after
that date such Notes cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.10. TREASURY NOTES.
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Company or any other Affiliate of the Company
shall be disregarded as though they were not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent or any amendment, modification or other change
to this Indenture, only Notes as to which a Responsible Officer of the Trustee
has actually received an Officers' Certificate stating that such Notes are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not an Issuer, a Subsidiary Guarantor, any other obligor on the Notes
or any of their respective Affiliates.
SECTION 2.11. TEMPORARY NOTES.
Until definitive Notes are prepared and ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of definitive Notes but may
have variations that the Company considers appropriate for temporary Notes.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall (subject to the
record-retention requirements of the Exchange Act) dispose of such canceled
-37-
Notes in its customary manner. The Company may not reissue or resell, or issue
new Notes to replace, Notes that the Company has redeemed or paid, or that have
been delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults on a payment of interest on the Notes, it
shall pay the defaulted interest, plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to the Persons who are Noteholders on a subsequent special record date, which
date shall be at least five Business Days prior to the payment date. The Company
shall fix such special record date and payment date in a manner satisfactory to
the Trustee. At least 10 days before such special record date, the Company shall
mail to each Noteholder a notice that states the special record date, the
payment date and the amount of defaulted interest, and interest payable on
defaulted interest, if any, to be paid. The Company may make payment of any
defaulted interest in any other lawful manner not inconsistent with the
requirements (if applicable) of any securities exchange on which the Notes may
be listed and, upon such notice as may be required by such exchange, if, after
written notice given by the Company to the Trustee of the proposed payment
pursuant to this sentence, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.14. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and if so,
such CUSIP number shall be included 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 Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Notes and of any change in the CUSIP number.
SECTION 2.15. DEPOSIT OF MONEYS.
Prior to 10:00 a.m.,
New York City time, on each Interest Payment Date
and Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds money sufficient to make cash payments, if any, due
on such Interest Payment Date or Maturity Date, as the case may be, in a timely
manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the Depository or its nominee, as
the case may be, as the sole registered owner and the sole Holder of the Global
Notes represented thereby. The principal and interest on Physical Notes shall be
payable, either in person or by mail, at the office of the Paying Agent.
-38-
SECTION 2.16. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES.
(a) Rule 144A Notes shall be represented by one or more Notes in
registered, global form without interest coupons (collectively, the "RESTRICTED
GLOBAL NOTE"). Regulation S Notes initially shall be represented by one or more
Notes in registered, global form without interest coupons (collectively, the
"REGULATION S GLOBAL NOTE," and, together with the Restricted Global Note and
any other global notes representing Notes, the "GLOBAL NOTES"). The Global Notes
shall bear legends as set forth in EXHIBIT D. The Global Notes initially shall
(i) be registered in the name of the Depository or the nominee of such
Depository, in each case for credit to an account of an Agent Member (or, in the
case of the Regulation S Global Notes, of Euroclear System ("EUROCLEAR") and
Clearstream Banking Luxembourg ("CLEARSTREAM")), (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
EXHIBIT B with respect to Restricted Global Notes and EXHIBIT C with respect to
Regulation S Global Notes.
Members of, or direct or indirect participants in, the Depository
("AGENT MEMBERS") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Notes, and the Depository may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner of the Global Note for all purposes whatsoever. Notwithstanding the
foregoing, 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 the Depository or impair, as between
the Depository and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) Transfers of Global Notes shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective Interests
of beneficial owners in the Global Notes may be transferred or exchanged for
Physical Notes in accordance with the rules and procedures of the Depository and
the provisions of Section 2.17. In addition, a Global Note shall be exchangeable
for Physical Notes if (i) the Depository (x) notifies the Company that it is
unwilling or unable to continue as depository for such Global Note and the
Company thereupon fails to appoint a successor depository or (y) has ceased to
be a clearing agency registered under the Exchange Act, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the issuance of
such Physical Notes or (iii) there shall have occurred and be continuing an
Event of Default with respect to the Notes. In all cases, Physical Notes
delivered in exchange for any Global Note or beneficial interests therein shall
be registered in the names, and issued in any approved denominations, requested
by or on behalf of the Depository (in accordance with its customary procedures).
-39-
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and the Company
shall execute, and the Trustee shall upon receipt of a written order from the
Company authenticate and make available for delivery, one or more Physical Notes
of like tenor and amount.
(d) In connection with the transfer of Global Notes as an entirety
to beneficial owners pursuant to paragraph (b), the Global Notes shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Notes, an equal aggregate principal amount of Physical
Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
shall, except as otherwise provided by paragraphs (a)(i)(x) and (c) of Section
2.17, bear the Private Placement Legend or, in the case of the Regulation S
Global Note, the legend set forth in EXHIBIT C, in each case, unless the Company
determine otherwise in compliance with applicable law.
(f) On or prior to the 40th day after the later of the commencement
of the offering of the Notes represented by the Regulation S Global Note and the
issue date of such Notes (such period through and including such 40th day, the
"RESTRICTED PERIOD"), a beneficial interest in a Regulation S Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
corresponding Restricted Global Note only upon receipt by the Trustee of a
written certification from the transferor to the effect that such transfer is
being made (i)(a) to a Person that the transferor reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the requirements of Rule
144A or (b) pursuant to another exemption from the registration requirements
under the Securities Act which is accompanied by an Opinion of Counsel regarding
the availability of such exemption and (ii) in accordance with all applicable
securities laws of any state of the United States or any other jurisdiction.
(g) Beneficial interests in the Restricted Global Note may be
transferred to a Person who takes delivery in the form of an interest in the
Regulation S Global Note, whether before or after the expiration of the
Restricted Period, only if the transferor first delivers to the Trustee a
written certificate to the effect that such transfer is being made in accordance
with Regulation S or Rule 144 (if available) and that, if such transfer occurs
prior to the expiration of the Restricted Period, the interest transferred will
be held immediately thereafter through Euroclear or Clearstream.
-40-
(h) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note shall, upon transfer, cease to be an interest in such Global Note
and become an interest in such other Global Note and, accordingly, shall
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(i) The Holder of any Global Note 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 Notes.
SECTION 2.17. SPECIAL TRANSFER PROVISIONS.
(a) TRANSFERS TO QIBS. The following provisions shall apply with
respect to the registration or any proposed registration of transfer of a Note
constituting a Restricted Note to a QIB (excluding transfers to Non-U.S.
Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
such Holder's Note stating, or to a transferee who has advised the Company
and the Registrar in writing, that it is purchasing the Note 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 QIB within the meaning of
Rule 144A, and 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
from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Notes to
be transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the Global Note, upon receipt by the Registrar
of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global Note
in an amount equal to the principal amount of the Physical Notes to be
transferred, and the Trustee shall cancel the Physical Notes so
transferred.
(b) PRIVATE PLACEMENT LEGEND. Upon the registration of transfer,
exchange or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver
-41-
Notes that do not bear the Private Placement Legend. Upon the registration of
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) there is delivered to the 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 or (ii) such Note
has been sold pursuant to an effective registration statement under the
Securities Act and the Registrar has received an Officers' Certificate from the
Company to such effect.
(c) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Registrar shall retain for a period of two years copies of all
letters, notices and other written communications received pursuant to Section
2.16 or this Section 2.17. 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 notice to the Registrar.
SECTION 2.18. COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months and actual days elapsed.
ARTICLE THREE
REDEMPTION
SECTION 3.01. ELECTION TO REDEEM; NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, at least 35 days prior to the Redemption Date (unless a shorter notice
shall be agreed to in writing by the Trustee) but not more than 65 days before
the Redemption Date, the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the redemption
price, and deliver to the Trustee an Officers' Certificate stating that such
redemption will comply with the conditions contained in paragraph 5 of the
Notes. Notice given to the Trustee pursuant to this Section 3.01 may not be
revoked after the time that notice is given to Noteholders pursuant to Section
3.03.
-42-
SECTION 3.02. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
The Trustee shall select the Notes to be redeemed, if the Notes are
listed on a national securities exchange, in accordance with the rules of such
exchange or, if the Notes are not so listed, either on a PRO RATA basis or by
lot, or such other method as the Trustee shall deem fair and appropriate;
PROVIDED that, in the case of a redemption pursuant to paragraph 5(a) of the
Notes, the Trustee shall select the Notes only on a PRO RATA basis or on as
nearly a PRO RATA basis as is practicable (subject to procedures of the
Depository). The Trustee shall promptly notify the Company of the Notes selected
for redemption and, in the case of any Notes selected for partial redemption,
the principal amount thereof to be redeemed. The Trustee may select for
redemption portions of the principal of the Notes that have denominations larger
than $1,000. Notes and portions thereof the Trustee selects shall be redeemed in
amounts of $1,000 or whole multiples of $1,000. For all purposes of this
Indenture unless the context otherwise requires, provisions of this Indenture
that apply to Notes called for redemption also apply to portions of Notes called
for redemption.
SECTION 3.03. NOTICE OF REDEMPTION.
At least 30 days, and no more than 60 days, before a Redemption Date,
the Company shall mail, or cause to be mailed, a notice of redemption by
first-class mail to each Holder of Notes to be redeemed at his or her last
address as the same appears on the registry books maintained by the Registrar
pursuant to Section 2.04.
The notice shall identify the Notes to be redeemed (including the
CUSIP numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and accrued
interest to be paid;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date and upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
-43-
(6) that unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date;
(7) that paragraph 5 of the Notes is the provision of the Notes
pursuant to which the redemption is occurring; and
(8) the aggregate principal amount of Notes that are being
redeemed.
At the Company's written request made at least five Business Days
prior to the date on which notice is to be given, the Trustee shall give the
notice of redemption in the Company's name and at the Company's sole expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once the notice of redemption described in Section 3.03 is mailed,
Notes called for redemption become due and payable on the Redemption Date and at
the redemption price, including any premium, plus interest accrued to the
Redemption Date. Upon surrender to the Paying Agent, such Notes shall be paid at
the redemption price, including any premium, plus interest accrued to the
Redemption Date; PROVIDED that if the Redemption Date is after a regular record
date and on or prior to the Interest Payment Date, the accrued interest shall be
payable to the Holder of the redeemed Notes registered on the relevant record
date; and PROVIDED, FURTHER, that if a Redemption Date is a Legal Holiday,
payment shall be made on the next succeeding Business Day and no interest shall
accrue for the period from such Redemption Date to such succeeding Business Day.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 A.M.,
New York City time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to pay the redemption price of, including premium, if
any, and accrued interest on all Notes to be redeemed on that date other than
Notes or portions thereof called for redemption on that date which have been
delivered by the Company to the Trustee for cancellation.
On and after any Redemption Date, if money sufficient to pay the
redemption price of, including premium, if any, and accrued interest on Notes
called for redemption shall have been made available in accordance with the
immediately preceding paragraph, the Notes called for redemption will cease to
accrue interest and the only right of the Holders of such Notes will be to
receive payment of the redemption price of and, subject to the first proviso in
Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date.
If any Note surrendered for redemption shall not be so paid, interest will be
paid, from the Redemption Date until such redemption payment is made, on the
unpaid principal of the Note and any interest
-44-
not paid on such unpaid principal, each case at the rate and in the manner
provided in the Notes.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for the Holder thereof a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
SECTION 3.07. SPECIAL MANDATORY REDEMPTION; NOTICES TO TRUSTEE AND SECURITIES
INTERMEDIARY.
If the Solutia Assumption has not occurred on or before the Deadline
(the "SPECIAL REDEMPTION TRIGGER"), the Company will promptly notify the Trustee
thereof and deliver to the Trustee an Officers' Certificate stating that such
redemption will comply with the conditions contained in paragraph 6 of the Notes
and setting forth the Special Mandatory Redemption Price applicable to such
Special Mandatory Redemption. Simultaneously with the giving of such notice by
the Company to the Trustee, the Company shall notify the Securities Intermediary
thereof pursuant to Section 3(a) of the Escrow Agreement.
SECTION 3.08. NOTICE OF SPECIAL MANDATORY REDEMPTION TO HOLDERS.
Upon the occurrence of the Special Redemption Trigger, notice of the
Special Mandatory Redemption will be promptly mailed by first class mail by the
Company to each Holder of Notes at his or her last address as the same appears
on the registry books maintained by the Registrar pursuant to Section 2.04 and
to the Trustee and the Securities Intermediary.
The notice shall state that all the Notes will be redeemed (including
the CUSIP numbers thereof) and shall state:
(1) the Special Mandatory Redemption Date;
(2) the Special Mandatory Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Notes must be surrendered to the Paying Agent to collect the
redemption price;
(5) that unless the Company defaults in making the redemption
payment, interest on the Notes ceases to accrue on and after the Special
Mandatory Redemption Date; and
-45-
(6) that paragraph 6 of the Notes is the provision pursuant to which
the Notes are being redeemed.
SECTION 3.09. EFFECT OF NOTICE OF SPECIAL MANDATORY REDEMPTION.
Once the notice of redemption described in Section 3.08 is mailed, the
Notes will become due and payable on the Special Mandatory Redemption Date at
the Special Mandatory Redemption Price. Upon surrender to the Paying Agent, the
Notes shall be paid at the Special Mandatory Redemption Price; PROVIDED that if
the Special Mandatory Redemption Date is a Legal Holiday, payment shall be made
on the next succeeding Business Day and no interest shall accrue for the period
from such Special Mandatory Redemption Date to such succeeding Business Day.
SECTION 3.10. DEPOSIT OF SPECIAL MANDATORY REDEMPTION PRICE.
On or prior to 10:00 A.M.,
New York City time, on the Special
Mandatory Redemption Date, the Company shall direct the Securities Intermediary,
pursuant to Section 3(a) of the Escrow Agreement, to deposit with the Paying
Agent the applicable Special Mandatory Redemption Price.
On and after the Special Mandatory Redemption Date, if money
sufficient to pay the applicable Special Mandatory Redemption Price shall have
been made available in accordance with the immediately preceding paragraph, the
Notes will cease to accrue interest and the only right of the Holders of the
Notes will be to receive payment of the Special Mandatory Redemption Price. If
any Note surrendered for redemption shall not be so paid, interest will be paid,
from the Special Mandatory Redemption Date until such redemption payment is
made, on the unpaid principal of the Note and any interest not paid on such
unpaid principal, in each case at the rate and in the manner provided in the
Notes.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay the principal of and interest on the Notes on
the dates and in the manner provided in the Notes and this Indenture. An
installment of principal or interest shall be considered paid on the date it is
due if the Trustee or Paying Agent holds on that date money designated for and
sufficient to pay such installment.
-46-
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in the Borough of Manhattan, the City
of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
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.
(b) The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
PROVIDED, HOWEVER, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of
New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.04.
SECTION 4.03. LEGAL EXISTENCE.
Subject to Article Five, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its legal
existence, and the corporate, partnership or other existence of each Restricted
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Restricted Subsidiary and the
material rights (charter and statutory), and franchises of the Company and the
Restricted Subsidiaries; PROVIDED that the Company shall not be required to
preserve any such right, franchise, or the corporate, partnership or other
existence of any of its Restricted Subsidiaries if the Board of Directors of the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Restricted Subsidiaries taken
as a whole, and that the loss thereof is not adverse in any material respect to
the Holders.
-47-
SECTION 4.04. MAINTENANCE OF PROPERTIES; INSURANCE; COMPLIANCE WITH LAW.
(a) The Company shall, and shall cause each of its Restricted
Subsidiaries to, at all times cause all material properties used or useful in
the conduct of their respective businesses to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereto; PROVIDED,
HOWEVER, that nothing in this Section 4.04(a) shall prevent the Company or any
of its Restricted Subsidiaries from discontinuing the operation and maintenance
of any of such material properties if such discontinuance is, in the reasonable
judgment of the Company, desirable in the conduct of the business of the Company
and its Subsidiaries taken as a whole.
(b) The Company shall maintain insurance, and cause each of its
Restricted Subsidiaries to maintain insurance, with financially sound and
reputable insurers, with respect to such of its properties, against such risks,
casualties and contingencies and in such types and amounts as are consistent
with sound business practice, it being understood that this paragraph (b) shall
not prevent the use of deductible or excess loss insurance and shall not prevent
(i) the Company or any of its Subsidiaries from acting as a self-insurer or
maintaining insurance with another Subsidiary or Subsidiaries of the Company so
long as such action is consistent with sound business practice or (ii) the
Company from obtaining and owning insurance policies covering activities of its
Subsidiaries.
(c) The Company shall, and shall cause each of its Restricted
Subsidiaries to comply with all statutes, laws, ordinances or government rules
and regulations to which they are subject, non-compliance with which would
materially adversely affect the business, financial condition or results of
operations of the Company and its Restricted Subsidiaries taken as a whole.
SECTION 4.05. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company and each of the Subsidiary Guarantors covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon, or
plead (as a defense or otherwise) or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
which would prohibit or forgive any of the Company and the Subsidiary Guarantors
from paying all or any portion of the principal of, premium, if any, and/or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that they may lawfully do so) each of the
Company and the Subsidiary Guarantors 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
-48-
the Trustee, but will suffer permit the execution of every such power as though
no such law had been enacted.
SECTION 4.06. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a certificate of an Officer (as enumerated by
Section 314(a)(4) of the TIA) stating that the Officer has conducted or
supervised a review of the activities of the Company and its Restricted
Subsidiaries and the Company's and its Restricted Subsidiaries' performance
under this Indenture during such fiscal year, and further stating, as to each
such Officer signing such certificate, that, to the best of such Officers'
knowledge, based upon such review, the Company has fulfilled all obligations
under this Indenture or, if there has been a Default under this Indenture that
is continuing, a description of the event and what action the Company and the
Subsidiary Guarantors are taking or propose to take with respect thereto.
(b) The Company will deliver to the Trustee, within 30 days after the
occurrence thereof, a certificate of an Officer detailing any continuing Default
of which such Officer is aware, its status and what action the Company is taking
or proposes to take with respect to such Default.
(c) The Company will provide written notice to the Trustee of any
change in its fiscal year.
(d) Solutia shall promptly notify the Trustee the first time the
Notes are rated Investment Grade; PROVIDED, HOWEVER, that the failure to deliver
such notice shall in no event be deemed a Default or an Event of Default.
SECTION 4.07. TAXES.
The Company shall, and shall cause each of its Restricted Subsidiaries
to, pay prior to delinquency all material taxes, assessments, and governmental
levies except as contested in good faith and by appropriate proceedings,
PROVIDED HOWEVER that the Company and its Restricted Subsidiaries shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment or governmental levies whose amount, applicability or validity is
being contested in good faith by appropriate proceedings or which is not of
material importance to the business, operations, financial conditions or results
of operations of the Company and its Subsidiaries, taken as a whole.
-49-
SECTION 4.08. REPURCHASE AT THE OPTION OF HOLDERS UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of Notes
will have the right to require the Company to repurchase all or any part (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes pursuant to
the offer described below (the "CHANGE OF CONTROL OFFER") at an offer price in
cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest, if any, thereon to the date of purchase (the "CHANGE OF CONTROL
PAYMENT") on a date that is not more than 90 days after the occurrence of such
Change of Control (the "CHANGE OF CONTROL PAYMENT DATE"). Within 30 days
following any Change of Control, the Company will mail, or at the Company's
request the Trustee will mail, a notice to each Holder offering to repurchase
the Notes held by such Holder pursuant to the procedures specified in such
notice.
(b) Within 30 days following the date on which a Change of Control
occurs, the Company shall send (or request in writing that the Trustee send), by
first-class mail, postage prepaid, a notice to each Holder of Notes at its last
registered address and, if given by the Company, the Trustee, which notice shall
govern the terms of the Change of Control Offer. The notice to the Holders shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.08 and that all Notes validly tendered and not withdrawn
will be accepted for payment;
(2) the Change of Control Payment and the Change of Control Payment Date
(which shall be no earlier than 30 days nor later than 60 days from
the date such notice is mailed, other than as may be required by law);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any Note
accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Change of
Control Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent and Registrar for the Notes at the
address specified in the notice prior to the close of business on the
third Business Day prior to the Change of Control Payment Date;
-50-
(6) that Holders will be entitled to withdraw their election if the Paying
Agent receives, not later than the second Business Day prior to the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes the Holder delivered for purchase and a
statement that such Holder is withdrawing its election to have such
Note purchased;
(7) that Holders whose Notes are purchased only in part will be issued new
Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; PROVIDED, HOWEVER, that each Note purchased and
each new Note issued shall be in a principal amount of $1,000 or
integral multiples thereof; and
(8) the circumstances and relevant facts regarding such Change of Control.
(c) On the Change of Control Payment Date, the Company will, to the
extent lawful: (x) accept for payment all Notes or portions of Notes properly
tendered in the Change of Control Offer; (y) deposit with the Paying Agent an
amount equal to the Change of Control Payment for all Notes or portions of Notes
tendered; and (z) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate principal
amount of Notes or portions of Notes being purchased by the Company.
(d) The Paying Agent will promptly mail to each Holder of Notes
tendered the Change of Control Payment for them, and the Trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any. Upon the payment of the Change of Control Payment, the
Trustee shall return the Notes purchased to the Company for cancellation. For
purposes of this Section 4.08, the Trustee shall act as the Paying Agent.
(e) Notwithstanding the foregoing, the Company will not be required
to make a Change of Control Offer, as provided above, if, in connection with or
in contemplation of any Change of Control, it or a third party has made an offer
to purchase (an "ALTERNATE OFFER") any and all Notes validly tendered at a cash
price equal to or higher than the Change of Control Payment and has purchased
all Notes properly tendered and not withdrawn in accordance with the terms of
such Alternate Offer.
(f) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Change of Control Offer. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.08, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under the provisions of this Section 4.08 by virtue thereof.
-51-
SECTION 4.09. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND ISSUANCE
OF PREFERRED STOCK.
Prior to the Assumption Date, the Company will not incur any
Indebtedness (including Acquired Debt) or issue any Disqualified Stock, except
for the Notes.
From and after the Assumption Date:
(1) the Company will not, and will not permit any of its Restricted
Subsidiaries to, incur any Indebtedness (including Acquired Debt);
(2) the Company will not, and will not permit any of its Restricted
Subsidiaries to, issue any Disqualified Stock (including Acquired
Disqualified Stock); and
(3) the Company will not permit any of its Restricted Subsidiaries
that are not Subsidiary Guarantors to issue any shares of Preferred Stock
(including Acquired Preferred Stock);
PROVIDED, HOWEVER, that the Company and the Subsidiary Guarantors may incur
Indebtedness (including Acquired Debt) and the Company and the Subsidiary
Guarantors may issue shares of Disqualified Stock (including Acquired
Disqualified Stock) if the Fixed Charge Coverage Ratio for the Company's most
recently ended four full fiscal quarters for which financial statements have
been filed with the SEC pursuant to Section 4.18 immediately preceding the date
on which such additional Indebtedness is incurred or such Disqualified Stock is
issued would have been at least 2 to 1, determined on a PRO FORMA basis
(including a PRO FORMA application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred or the Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period, with
any letters of credit and bankers' acceptances being deemed to have an aggregate
principal amount of Indebtedness equal to the maximum amount available
thereunder.
The immediately preceding paragraph will not apply to:
(i) (I) the incurrence by the Company or any Subsidiary Guarantor of
Indebtedness pursuant to the Credit Facility in an aggregate principal
amount at any time outstanding not to exceed the lesser of (x) $800 million
and (y) the aggregate amount of the Credit Facility as specified in the
Assumption Documentation, less the aggregate principal amount of all
mandatory repayments applied to (a) repay loans (other than revolving
credit loans) outstanding thereunder or (b) permanently reduce the
revolving credit commitments thereunder (and the corresponding guarantees
of the Subsidiary Guarantors thereunder) and (II) the incurrence by any
Foreign Subsidiary of Indebtedness pursuant to the Credit Facility in an
aggregate principal amount not to exceed
-52-
the aggregate principal amount of Indebtedness incurred by Foreign
Subsidiaries under the Credit Facility on the Assumption Date; PROVIDED,
HOWEVER, that if the Company or a Subsidiary Guarantor transfers any
material assets to a Foreign Subsidiary that is a borrower under the Credit
Facility, then, at the time of such transfer, there shall be deemed to be
an incurrence of Indebtedness that is not permitted by this clause (i)(II)
in the amount of Indebtedness that is outstanding under this clause (i)(II)
at the time of such transfer;
(ii) the incurrence by the Company and the Subsidiary Guarantors of
Indebtedness represented by the Notes (not including any Additional Notes)
and Subsidiary Guarantees thereof, including any Exchange Securities issued
for the Notes issued on the Issue Date;
(iii) the Existing Indebtedness of the Company and its Restricted
Subsidiaries (other than Indebtedness of the type described in clause (i),
(ii), (v), (ix) or (x) of this Section 4.09);
(iv) the incurrence by the Company or any of its Restricted
Subsidiaries of any Permitted Refinancing in exchange for, or the Net
Proceeds of which are used to extend, refinance, renew, replace, defease or
refund, Indebtedness that was permitted to be incurred under (A) the Fixed
Charge Coverage Ratio test set forth above or (B) clauses (ii) and (iii)
above, clause (xi) below or this clause (iv);
(v) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among the Company and
any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that (i) if the
Company or any Subsidiary Guarantor is the obligor on such Indebtedness,
then (other than intercompany notes that constitute Collateral) such
Indebtedness is expressly subordinated by its terms to the prior payment in
full in cash of all Obligations with respect to the Notes or the Subsidiary
Guarantee, as the case may be, and (ii) (A) any subsequent issuance or
transfer of Capital Stock that results in any such Indebtedness being held
by a Person other than the Company or a Restricted Subsidiary and (B) any
sale or other transfer of any such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary shall be deemed, in each
case, to constitute a simultaneous incurrence of such Indebtedness that is
not permitted by this clause (v) by the Company or such Restricted
Subsidiary, as the case may be;
(vi) the incurrence by the Company or any Restricted Subsidiary of
Hedging Obligations that are incurred for the purpose of (A) fixing or
hedging interest rate or currency risk with respect to any fixed or
floating rate Indebtedness that is permitted by this Indenture to be
outstanding which is designed solely to protect the Company or any
Restricted Subsidiary against fluctuations in foreign currency exchange
rates; PROVIDED
-53-
that such Hedging Obligation does not increase the principal amount of any
such Indebtedness other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities
and compensation payable thereunder or (B) managing fluctuations in the
price or cost of energy, raw materials, manufactured products or related
commodities; PROVIDED that such obligations are entered into for valid
business purposes other than speculative purposes (as determined by the
Company's or such Restricted Subsidiary's principal financial officer in
the exercise of his or her good faith business judgment);
(vii) the issuance by any of the Company's Restricted Subsidiaries of
shares of Preferred Stock to the Company or a Wholly Owned Restricted
Subsidiary; PROVIDED that (A) any subsequent issuance or transfer of
Capital Stock that results in such Preferred Stock being held by a Person
other than the Company or a Wholly Owned Restricted Subsidiary or (B) the
transfer or other disposition by the Company or a Wholly Owned Restricted
Subsidiary of any such shares to a Person other than the Company or a
Wholly Owned Restricted Subsidiary shall be deemed, in each case, to
constitute an issuance of such Preferred Stock by such Subsidiary on such
date that is not permitted by this clause (vii);
(viii) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness represented by worker's compensation claims
and other statutory or regulatory obligations, self-insurance obligations,
tender, bid, performance, government contract, surety or appeal bonds,
standby letters of credit and warranty and contractual service obligations
of like nature, trade letters of credit or documentary letters of credit,
in each case to the extent incurred in the ordinary course of business of
the Company or such Restricted Subsidiary;
(ix) the incurrence of Indebtedness by Foreign Subsidiaries (not
including Indebtedness incurred pursuant to clause (i)(II) above), the
aggregate principal amount (or accreted value, as applicable) at any time
outstanding and incurred in reliance upon this clause (ix), does not exceed
$25 million;
(x) the Guarantee by the Company or any Subsidiary Guarantor of
Indebtedness of the Company or a Restricted Subsidiary that was permitted
to be incurred by another provision of this Section 4.09;
(xi) Acquired Debt or Acquired Disqualified Stock; PROVIDED that such
Indebtedness or Disqualified Stock was not incurred in connection with or
in contemplation of such Person becoming a Restricted Subsidiary; and
PROVIDED FURTHER that immediately after giving effect to such incurrence,
the Fixed Charge Coverage Ratio for the Company's most recently ended four
full fiscal quarters for which financial statements have been filed with
the SEC pursuant to Section 4.18 immediately preceding
-54-
the date of such incurrence would have been at least 2 to 1, determined on
a PRO FORMA basis (including giving PRO FORMA effect to the applicable
transaction related thereto);
(xii) Indebtedness consisting of take-or-pay obligations contained in
supply agreements entered into in the ordinary course of business;
(xiii) the incurrence by the Company and the Subsidiary Guarantors of
Purchase Money Obligations and Capital Lease Obligations in an aggregate
principal amount not to exceed $50 million at any one time outstanding;
(xiv) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification, contribution, earnout,
adjustment of purchase price or similar obligation, in each case, incurred
or assumed in connection with the disposition of any business, assets or
Capital Stock of a Restricted Subsidiary;
(xv) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; PROVIDED, that such
Indebtedness is extinguished within three business days of incurrence; and
(xvi) the incurrence by the Company or any Subsidiary Guarantor of
Indebtedness or the issuance of Disqualified Stock, the aggregate principal
amount (or accreted value, as applicable) or liquidation preference of
which, together with all other Indebtedness and Disqualified Stock at the
time outstanding and incurred in reliance on this clause (xvi), does not
exceed $50 million.
For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness or Preferred Stock meets the criteria of more
than one of the categories of permitted Indebtedness described in clauses (i)
through (xvi) above or is entitled to be incurred pursuant to the first
paragraph of this Section 4.09, the Company shall, in its sole discretion,
classify on the date of incurrence (and from time to time reclassify in whole or
in part) such item of Indebtedness or Preferred Stock in any matter that
complies with this Section 4.09 and such Indebtedness or Preferred Stock will be
treated as having been incurred pursuant to the clauses or the first paragraph
hereof, as the case may be, designated by the Company (PROVIDED that all
Indebtedness under the Credit Facility shall at all times be deemed to have been
incurred pursuant to clause (i) of this Section 4.09). The amount of
Indebtedness issued at a price which is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
-55-
SECTION 4.10. LIMITATION ON RESTRICTED PAYMENTS.
Prior to the Assumption Date, the Company will not make any Restricted
Payments (as defined below) or any Permitted Investments, except to the extent
necessary to consummate the Solutia Assumption, perform its obligations under
the Escrow Agreement and the transactions contemplated thereby, including any
Investments deemed to exist by virtue of the Escrow Agreement.
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution on account
of the Company's or any of its Restricted Subsidiaries' Capital Stock,
other than:
(x) dividends or distributions payable in Qualified Capital
Stock of the Company, and
(y) dividends or distributions payable to the Company or
any Restricted Subsidiary of the Company;
(2) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company, other than any such Capital Stock owned by
the Company or any of its Restricted Subsidiaries;
(3) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value, any Subordinated Debt of the Company
or any Restricted Subsidiary, other than Indebtedness owed to the Company
or any Restricted Subsidiary, except, in each case, payment of interest or
principal at Stated Maturity; or
(4) make any Restricted Investment
(all such payments and other actions set forth in clauses (1) through (4) above
(other than any exception thereto) being collectively referred to as "RESTRICTED
PAYMENTS"), unless, at the time of and after giving effect to such Restricted
Payment (the amount of any such Restricted Payment, if other than cash, shall be
the fair market value (as conclusively evidenced by a resolution of the Board of
Directors) of the asset(s) proposed to be transferred by the Company or such
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment):
(a) no Default or Event of Default shall have occurred and be
continuing after giving effect thereto; and
(b) the Company would, at the time of such Restricted Payment and
after giving PRO FORMA effect thereto as if such Restricted Payment had
been made at the beginning
-56-
of the most recently ended four full fiscal quarters for which financial
statements have been filed with the SEC pursuant to Section 4.18
immediately preceding the date of such Restricted Payment, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 4.09; and
(c) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by the Company and its Restricted Subsidiaries on
or after the Issue Date (excluding Restricted Payments permitted by clause
(b), (d) or (e) of the next succeeding paragraph), is less than the sum,
without duplication, of:
(i) 50% of the Consolidated Net Income of the Company for the
period (taken as one accounting period) from the Issue Date to the end
of the Company's most recently ended fiscal quarter for which
financial statements have been filed with the SEC pursuant to Section
4.18 at the time of such Restricted Payment (or, if such Consolidated
Net Income for such period is a deficit, less 100% of such deficit),
PLUS
(ii) 100% of the aggregate net cash proceeds received by the
Company from the issue or sale after the Issue Date of Qualified
Capital Stock of the Company or of debt securities of the Company or
any of its Restricted Subsidiaries that have been converted into or
exchanged for such Qualified Capital Stock of the Company, PLUS
(iii) to the extent that any Restricted Investment that was made
after the Issue Date and was included in the calculation of aggregate
Restricted Payments under this clause (c) is sold for cash or
otherwise liquidated, repaid or otherwise reduced, including by way of
dividend or distribution (to the extent not included in calculating
Consolidated Net Income), for cash, the lesser of (A) the cash return
with respect to such Restricted Investment (less the cost of
disposition, if any) or (B) the initial amount of such Restricted
Investment, PLUS
(iv) an amount equal to the sum of (A) the net reduction in
Investments in Unrestricted Subsidiaries resulting from dividends,
repayments of loans or other transfers of assets (to the extent not
included in calculating Consolidated Net Income), in each case, to the
Company or any Restricted Subsidiary from Unrestricted Subsidiaries
and (B) the portion (proportionate to the Company's equity interest in
such Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted Subsidiary is
designated a Restricted Subsidiary;
-57-
PROVIDED, HOWEVER, that the foregoing sum shall not exceed, in the
case of any Unrestricted Subsidiary, the amount of Restricted
Investments previously made after the Issue Date by the Company or any
Restricted Subsidiary in such Unrestricted Subsidiary that were
included in the calculation above of aggregate Restricted Payments
under this clause (c).
The foregoing provisions of this Section 4.10 will not prohibit the
following Restricted Payments:
(a) the payment of any dividend within 90 days after the date of
declaration thereof, if at said date of declaration such payment would have
complied with the provisions of this Indenture;
(b) dividends or distributions by any Wholly-Owned Restricted
Subsidiary of the Company payable to the Company or another Wholly-Owned
Restricted Subsidiary of the Company;
(c) so long as no Default or Event of Default has occurred and is
continuing, the payment of cash dividends on any series of Disqualified
Stock issued after the Issue Date in an aggregate amount not to exceed the
cash received by the Company since the Issue Date upon issuance of such
Disqualified Stock;
(d) the redemption, repurchase, retirement or other acquisition of
any Capital Stock of the Company, any Restricted Subsidiary or any Joint
Venture (or the acquisition of all the outstanding Capital Stock of any
Person that conducts no operations and has no assets or liabilities other
than the ownership of Capital Stock in a Joint Venture) in exchange for, or
out of the net cash proceeds of the substantially concurrent sale (other
than to a Subsidiary or Joint Venture of the Company) of, Qualified Capital
Stock of the Company; PROVIDED that the amount of any such net cash
proceeds that are utilized for any such redemption, repurchase, retirement
or other acquisition shall be excluded from (and shall not previously have
been included in) clause (c)(ii) of the preceding paragraph;
(e) the defeasance, redemption or repurchase of Subordinated Debt
with the net cash proceeds from an incurrence of Permitted Refinancing or
in exchange for or out of the net cash proceeds from the substantially
concurrent sale (other than to a Subsidiary or Joint Venture of the
Company) of Qualified Capital Stock of the Company; PROVIDED that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement or other acquisition shall be excluded
from (and shall not previously have been included in) clause (c)(ii) of the
preceding paragraph;
-58-
(f) the repurchase, redemption or other acquisition or retirement for
value of any Capital Stock of the Company or any Subsidiary of the Company
held by any member of the Company's (or any of its Subsidiaries')
management pursuant to any management equity subscription agreement or
stock option agreement; PROVIDED that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Capital Stock in reliance on
this clause (f) shall not exceed $5 million in any calendar year;
(g) payments by the Company made pursuant to the Astaris Support
Agreement as such agreement is in effect on the Issue Date or as such
agreement may be amended, modified, supplemented or replaced, in whole or
in part; PROVIDED that the aggregate amount of payments made in reliance on
this clause (g) shall in no event exceed the maximum aggregate amount of
payments required to be made by the Company after the Issue Date under the
Astaris Support Agreement as in effect on the Issue Date;
(h) repurchases of shares of preferred stock of Solutia Management
Company, Inc. in accordance with the terms of its stockholders agreement,
dated as of December 29, 1998, in an amount not to exceed $1.5 million in
the aggregate;
(i) Restricted Payments comprised of payments of dividends on, or
repurchases of, the Company's common stock, in an aggregate amount not to
exceed the lower of (x) $10 million per calendar year and (y) $0.04 per
share; PROVIDED that no Default or Event of Default shall have occurred and
be continuing after giving effect to such Restricted Payment;
(j) notwithstanding anything to the contrary contained herein,
repurchases of Capital Stock deemed to occur upon the exercise of stock
options, to the extent such repurchases represent a portion of the exercise
price thereof or withholding of applicable taxes thereon and the purchase
price, or applicable withholding taxes, for such repurchases is paid solely
in Qualified Capital Stock; and
(k) additional Restricted Payments in an aggregate amount not to
exceed $25 million.
If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Capital Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Restricted Subsidiary of the Company,
the Company shall be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the Capital Stock of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the first paragraph of this Section 4.10.
-59-
Prior to the first time the Notes are rated Investment Grade, the
Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary
if such designation would not cause a Default. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted
Subsidiaries in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation and will reduce the amount available
for Restricted Payments under the first paragraph of this Section 4.10 (except
to the extent such Investments were repaid to the Company or a Restricted
Subsidiary in cash). All such outstanding Investments will be deemed to
constitute Investments in an amount equal to the fair market value of such
Investments at the time of such designation, as conclusively determined by the
Board of Directors. Such designation will only be permitted if any such
Restricted Payment would be permitted at such time and if such Restricted
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. In the
case of any designation by the Company of a Person as an Unrestricted Subsidiary
on the first day that such Person is a Subsidiary of the Company in accordance
with the provisions of this Indenture, such designation shall be deemed to have
occurred for all purposes of this Indenture simultaneously with, and
automatically upon, such Person becoming a Subsidiary.
SECTION 4.11. LIMITATION ON LIENS.
Prior to the Assumption Date, the Company will not, directly or
indirectly, create, incur, assume or otherwise cause or suffer to exist or
become effective any Lien of any kind upon any of its assets, now owned or
hereafter acquired, or upon any income or profits therefrom or assign any rights
to receive income therefrom, other than as contemplated by the Escrow Agreement.
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create,
incur, assume or suffer to exist any Lien, except Permitted Liens, on any asset
now owned or hereafter acquired, or any income or profits therefrom, unless all
payments due under this Indenture and the Notes are secured on an equal and
ratable basis with the obligations so secured (or, if such obligations are
subordinated by their terms to the Notes or the Subsidiary Guarantees, prior to
the obligations so secured) until such time as such obligations are no longer
secured by a Lien.
SECTION 4.12. LIMITATION ON ASSET SALES.
(a) Prior to the Assumption Date, the Company will not consummate an
Asset Sale except to the extent necessary to consummate the transactions
contemplated by the Escrow Agreement, including the Solutia Assumption and the
related release to Solutia of the Escrow Assets.
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
-60-
(i) the Company and/or such Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value (as conclusively evidenced by an
Officers' Certificate delivered to the Trustee or, if such Asset Sale
involves aggregate consideration in excess of $20 million, a
resolution of the Board of Directors that is set forth in an Officers'
Certificate delivered to the Trustee) of the assets or Capital Stock
issued or sold or otherwise disposed of,
(ii) at least 75% of the consideration therefor received by the
Company and/or such Restricted Subsidiary is in the form of cash or
Cash Equivalents, and
(iii) if such Asset Sale involves the transfer of Collateral, (a)
it complies with the applicable provisions of the Security Documents
and (b) all consideration received in such Asset Sale (including
Additional Assets) shall, if applicable, be expressly made subject to
the Lien under the Security Documents;
PROVIDED that the amount of (x) any liabilities (as shown on the Company's or
such Restricted Subsidiary's most recent balance sheet) of the Company or any
Restricted Subsidiary (other than Subordinated Debt) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement that
releases the Company or such Restricted Subsidiary from further liability and
(y) any securities, notes or other obligations received by the Company or such
Restricted Subsidiary from such transferee, to the extent they are promptly
converted or monetized by the Company or such Restricted Subsidiary into cash
(to the extent of the cash received), shall be deemed to be cash for purposes of
this provision.
Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, the Company may apply such Net Proceeds, at its option:
(a) to permanently repay Applicable Pari Passu Indebtedness (and to
correspondingly reduce commitments with respect thereto in the case of
revolving borrowings); or
(b) to acquire Additional Assets (to the extent otherwise permitted
by this Indenture) or make a capital expenditure, in each case, in a
Permitted Business (or enter into a binding commitment for any such
acquisition or expenditure); PROVIDED that such binding commitment shall be
treated as a permitted application of Net Proceeds from the date of such
commitment until and only until the earlier of (x) the date on which such
expenditure or acquisition is consummated and (y) the 180th day following
the expiration of the aforementioned 360 day period. If the acquisition or
expenditure contemplated by such binding commitment is not consummated on
or before such 180th day and the Company shall not have applied such Net
Proceeds pursuant to
-61-
clause (a) above on or before such 180th day, such commitment shall be
deemed not to have been a permitted application of Net Proceeds at any
time.
Pending the final application of any such Net Proceeds, the Company
may temporarily reduce the revolving Indebtedness under the Credit Facility or
otherwise invest such Net Proceeds in any manner that is not prohibited by this
Indenture. Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the first sentence of this paragraph will be deemed to constitute
"EXCESS PROCEEDS." On any date that the aggregate amount of Excess Proceeds
under this Indenture exceeds $25 million (an "ASSET SALE OFFER TRIGGER DATE"),
the Company will be required to make an offer to all Holders of Notes issued
under this Indenture (an "ASSET SALE OFFER") to purchase the maximum principal
amount of Notes and, if the Company is required to do so under the terms of any
other Indebtedness ranking PARI PASSU with such Notes ("OTHER INDEBTEDNESS"),
such other Indebtedness on a PRO RATA basis with the Notes that may be purchased
out of the Excess Proceeds, at a purchase price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid interest, if any,
thereon, to the date of purchase in accordance with the procedures set out in
this Indenture. To the extent that the aggregate amount of Notes (and any Other
Indebtedness subject to such Asset Sale Offer) tendered pursuant to such Asset
Sale Offers is less than the Excess Proceeds, the Company may, subject to the
other terms of this Indenture, use any remaining Excess Proceeds for any purpose
not prohibited by this Indenture. If the aggregate principal amount of Notes
surrendered by Holders thereof in connection with any Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes to be
purchased on a PRO RATA basis. Upon completion of the offer to purchase made
under this Indenture, the amount of Excess Proceeds that was the subject of such
offer to purchase shall be reset at zero.
(b) The Company shall mail (or cause the Trustee to mail) a notice of
a Asset Sale Offer by first-class mail, postage prepaid, to the record Holders
as shown on the register of Holders within 30 days following the Asset Sale
Offer Trigger Date, with a copy, if such notice is being mailed by the Company,
to the Trustee, containing all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Asset Sale Offer and shall state
the following terms:
(1) that the Asset Sale Offer is being made pursuant to this Section
4.12, that all Notes tendered will be accepted for payment;
PROVIDED, HOWEVER, that if the aggregate principal amount of
Notes and other Indebtedness tendered in a Asset Sale Offer plus
accrued interest at the expiration of such offer exceeds the
Excess Proceeds, the Company shall select on a PRO RATA basis,
the Notes and Other Indebtedness to be purchased (with such
adjustments as may be deemed appropriate by the
-62-
Company so that only Notes in denominations of $1,000, as
applicable, or multiples thereof shall be purchased);
(2) the offer price (including the amount of accrued interest) and
the Asset Sale Offer date of payment ("ASSET SALE OFFER PAYMENT
DATE"), which shall be not less than 30 nor more than 60 days
following the date notice of the applicable Asset Sale Offer is
mailed;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer will be required to surrender such Note, with
the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Note completed, to the Paying Agent at the address
specified in the notice prior to the close of business on the
third Business Day prior to the Asset Sale Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day
prior to the Asset Sale Offer Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of such
Holder, the principal amount of the Notes such Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Note purchased; and
(7) that Holders whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased
portion of the Note surrendered; PROVIDED, HOWEVER, that each
Note purchased and each new Note issued shall be in a principal
amount of $1,000 or integral multiples thereof.
(c) On or before the Asset Sale Offer Payment Date, the Company shall
(1) accept for payment Notes or portions thereof (in integral multiples of
$1,000) validly tendered pursuant to the Asset Sale Offer, (2) deposit with the
Paying Agent an amount sufficient to pay the purchase price plus accrued and
unpaid interest, if any, of all Notes to be purchased and (3) deliver or cause
to be delivered to the Trustee the Notes so accepted together with an Officers'
Certificate stating the aggregate principal amount of Notes or portions of Notes
being purchased by the Company. Upon receipt by the Paying Agent of the monies
specified in clause (b) above and a copy of the Officers' Certificate specified
in clause (3) above, the Paying
-63-
Agent shall promptly mail to the Holders of Notes so accepted payment in an
amount equal to the purchase price plus accrued and unpaid interest, if any, out
of the funds deposited with the Paying Agent in accordance with the preceding
sentence. The Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to such Holders new Notes equal in principal amount
to any unpurchased portion of the Notes surrendered, if any. Upon the payment of
the purchase price for the Notes accepted for purchase, the Trustee shall return
the Notes purchased to the Company for cancellation. Any monies remaining after
the purchase of Notes pursuant to a Asset Sale Offer shall be returned within
three business days by the Trustee to the Company except with respect to monies
owed as obligations to the Trustee pursuant to Article Seven. For purposes of
this Section 4.12, the Trustee shall act as the Paying Agent.
(d) To the extent the amount of Notes tendered pursuant to any Asset
Sale Offer is less than the amount of Net Cash Proceeds subject to such Asset
Sale Offer, the Company may use any remaining portion of such Net Cash Proceeds
not required to fund the repurchase of tendered Notes for any purpose not
prohibited by the Indenture and the amount of Excess Proceeds shall be reset to
zero.
(e) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to a Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this Section 4.12, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
the provisions of this Section 4.12 by virtue thereof.
SECTION 4.13. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES.
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any restriction on the
ability of any Restricted Subsidiary to:
(i) (a) pay dividends or make any other distributions to the Company
or any of its Restricted Subsidiaries
(1) on its Capital Stock, or
(2) with respect to any other interest or participation in, or
measured by, its profits, or
-64-
(b) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries;
(ii) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(iii) transfer any of its properties or assets to the Company or any of
its Restricted Subsidiaries;
except for such restrictions existing under or by reason of:
(a) existing agreements as in effect on the Issue Date, including any
amendment, modification or supplement thereof PROVIDED that such amendment,
modification or supplement is materially no more restrictive than such
existing agreement as in effect on the Issue Date;
(b) Indebtedness permitted by this Indenture to be incurred
containing restrictions on the ability of Restricted Subsidiaries to
consummate transactions of the types described in clause (i), (ii) or (iii)
above not materially more restrictive than those contained in this
Indenture and the Security Documents;
(c) this Indenture and the Security Documents;
(d) applicable law;
(e) existing restrictions with respect to a Person acquired by the
Company or any of its Restricted Subsidiaries (except to the extent such
restrictions were put in place in connection with or in contemplation of
such acquisition), which restrictions are not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired;
(f) customary non-assignment provisions in leases and other
agreements entered into in the ordinary course of business;
(g) construction loans and Purchase Money Obligations (including
Capital Lease Obligations) for property acquired in the ordinary course of
business that impose restrictions of the nature described in clause (iii)
above on the property so constructed or acquired;
(h) in the case of clause (iii) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such restrictions restrict the transfer of the
property subject to such security agreements or mortgages;
-65-
(i) a Permitted Refinancing; PROVIDED that the restrictions contained
in the agreements governing such Permitted Refinancing are not materially
more restrictive, taken as a whole, than those contained in the agreements
governing the Indebtedness being refinanced;
(j) any restriction with respect to shares of Capital Stock of a
Restricted Subsidiary imposed pursuant to an agreement entered into for the
sale or disposition of such shares of Capital Stock or any restriction with
respect to the assets of a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of such assets or all or
substantially all the Capital Stock of such Restricted Subsidiary pending
the closing of such sale or disposition; and
(k) the Credit Facility and related documentation as the same is in
effect on the Assumption Date and as amended, modified, extended, renewed,
refunded, refinanced, restated or replaced from time to time; PROVIDED that
the Credit Facility and related documentation as so amended, modified,
extended, reviewed, refunded, refinanced, restated or replaced is not
materially more restrictive, taken as a whole, as to the matters enumerated
above than the Credit Facility and related documentation as in effect on
the Assumption Date.
For purposes of determining compliance with this Section 4.13, in the
event that a restriction meets the criteria of more than one of the categories
of permitted restrictions described in clauses (a) through (k) above, the
Company shall, in its sole discretion, classify such restriction in any matter
that complies with this Section 4.13 and such restriction will be treated as
existing pursuant to the clauses designated by the Company.
SECTION 4.14. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
Prior to the Assumption Date, the Company will not enter into or
suffer to exist any Affiliate Transaction (as defined below) other than to the
extent necessary to consummate the Solutia Assumption and the transactions
contemplated thereby.
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make any contract, agreement, understanding, loan,
advance or Guarantee with, or for the benefit of, any Affiliate (each of the
foregoing, an "AFFILIATE TRANSACTION"), unless (i) the terms of such Affiliate
Transaction are no less favorable to the Company or such Restricted Subsidiary,
as the case may be, than those that could be obtained in a comparable
arm's-length transaction with a Person that is not an Affiliate of the Company
and (ii) the Company delivers to the Trustee (a) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $10 million, a
resolution of the Board of Directors set forth in an Officers' Certificate
certifying
-66-
that such Affiliate Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the Disinterested
Members of the Board of Directors and (b) with respect to any Affiliate
Transaction involving aggregate consideration in excess of $25 million, an
opinion as to the fairness to the Company or such Restricted Subsidiary of such
Affiliate Transaction from a financial point of view issued by an investment
banking firm of national standing; PROVIDED that:
(i) transactions or payments pursuant to any employment
arrangements or employee, officer or director benefit plans or
arrangements entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;
(ii) transactions between or among the Company and/or its
Restricted Subsidiaries;
(iii) customary loans, advances, fees and compensation paid to,
and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any of its Restricted Subsidiaries;
(iv) transactions pursuant to any contract or agreement in effect
on the Issue Date, as the same may be amended, modified or replaced
from time to time, so long as any such contract or agreement as so
amended, modified or replaced is, taken as a whole, no less favorable
to the Company and its Restricted Subsidiaries in any material respect
than the contract or agreement as in effect on the Issue Date;
(v) any Restricted Payment of the type described in clause (1)
or (2) of the first paragraph of Section 4.10; and
(vi) any transaction entered into on an arm's-length basis in the
ordinary course of business between the Company or any of its
Restricted Subsidiaries, on the one hand, and any Joint Venture, on
the other hand; PROVIDED, that any such transaction (or series of
related transactions) that involves $25 million or more in the
aggregate shall be subject to prior approval by the Disinterested
Members of the Board of Directors,
in each case, shall be deemed not to be Affiliate Transactions and therefore
(except as otherwise specified in such clauses) not subject to the requirements
of clauses (i) and (ii) of the initial paragraph above.
SECTION 4.15. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
Prior to the Assumption Date, the Company will not enter into any Sale
and Leaseback Transaction.
-67-
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, enter into any Sale and Leaseback
Transaction; PROVIDED that the Company or any Restricted Subsidiary may enter
into a Sale and Leaseback Transaction if:
(a) the Company or such Restricted Subsidiary, as the case may be,
could have:
(i) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such Sale and Leaseback Transaction pursuant to
Section 4.09 and
(ii) incurred a Lien to secure such Indebtedness pursuant to
Section 4.11 without securing the Notes; and
(b) the gross cash proceeds of such Sale and Leaseback Transaction
are at least equal to the fair market value of the property that is the
subject of such Sale and Leaseback Transaction.
SECTION 4.16. [RESERVED].
SECTION 4.17. LINE OF BUSINESS.
Prior to the Assumption Date, the Company will not engage in any line
of business other than as necessary to perform its obligations under this
Indenture, the Escrow Agreement and the Solutia Assumption.
From and after the Assumption Date, the Company will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business other than
Permitted Businesses, except to such extent as would not be material to the
Company and its Subsidiaries taken as a whole.
SECTION 4.18. REPORTS TO HOLDERS.
Whether or not the Company and the Subsidiary Guarantors are then
subject to Section 13 (a) or 15(d) of the Exchange Act, from and after the
Assumption Date, the Company and the Subsidiary Guarantors will electronically
file with the SEC, so long as the Notes are outstanding, the annual reports,
quarterly reports and other periodic reports that the Company and the Subsidiary
Guarantors would be required to file with the SEC pursuant to Section 13(a) or
15 (d) if the Company and the Subsidiary Guarantors were so subject, and such
documents will be filed with the SEC on or prior to the respective dates (the
"REQUIRED FILING DATES") by which the Company and the Subsidiary Guarantors
would be required so to file
-68-
such documents if the Company and the Subsidiary Guarantors were so subject,
unless, in any case, such filings are not then permitted by the SEC.
If such filings with the SEC are not then permitted by the SEC, or
such filings are not generally available on the Internet free of charge, from
and after the Assumption Date, the Company and the Subsidiary Guarantors will,
without charge to the Holders, within 15 days of each Required Filing Date,
transmit by mail to Holders, as their names and addresses appear in the note
register, and file with the Trustee copies of the annual reports, quarterly
reports and other periodic reports that the Company and the Subsidiary
Guarantors would be required to file with the SEC pursuant to Section 13(a) or
15(d) of the Exchange Act if the Company and the Subsidiary Guarantors were
subject to such Section 13(a) or 15(d) and, promptly upon written request,
supply copies of such documents to any prospective Holder or beneficial owner at
the Company's cost.
In addition, from and after the Solutia Assumption, the Company and
the Subsidiary Guarantors will, for so long as any Notes remain outstanding,
furnish to the Holders of the Notes and to securities analysts and prospective
investors, upon their request, the information if any, required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.19. CREATION OF SUBSIDIARIES; GUARANTEES BY RESTRICTED SUBSIDIARIES.
(a) Prior to the Assumption Date, the Company will not create or
acquire any Subsidiaries.
(b) From and after the Assumption Date, the Company will not permit
any Restricted Subsidiary that is not a Subsidiary Guarantor, directly or
indirectly, to Guarantee or secure the payment of any other Indebtedness of the
Company or any of its Restricted Subsidiaries unless such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to this Indenture
providing for a Subsidiary Guarantee of the payment of the Notes by such
Restricted Subsidiary; PROVIDED that this Section 4.19(b) shall not be
applicable to:
(i) any Guarantee of any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary;
(ii) to the extent permitted under Section 4.09, Guarantees of
Indebtedness of a Restricted Subsidiary that is a Foreign Subsidiary by a
Restricted Subsidiary that is a Foreign Subsidiary; or
-69-
(iii) any Guarantee arising under or in connection with performance
bonds, indemnity bonds, surety bonds or letters of credit or bankers'
acceptances.
(c) If the Guaranteed Indebtedness is subordinated in right of
payment to the Notes or any Subsidiary Guarantee, as applicable, pursuant to a
written agreement to that effect, the Guarantee of such guaranteed Indebtedness
must be subordinated in right of payment to the Subsidiary Guarantee to at least
the extent that the Guaranteed Indebtedness is subordinated to the Notes.
SECTION 4.20. COVENANTS APPLICABLE IF NOTES RATED INVESTMENT GRADE.
Notwithstanding anything in this Indenture, from and after the first
date when the Notes are rated Investment Grade, the Company's obligations to
comply with the provisions of the Indenture described under Sections 4.08, 4.09,
4.10, 4.13, 4.14, 4.15, 4.17 and Section 5.01(3) will terminate and cease to
have any further effect.
In addition to the foregoing, from and after the first date when the
Notes are rated Investment Grade, the following shall apply:
The Company will not, nor will it permit any Restricted Subsidiary to,
enter into any Sale and Lease-Back Transaction (except a lease for a
temporary period not exceeding three years) after the Issue Date covering
any Principal Property, which was or is owned or leased by the Company or a
Restricted Subsidiary and which has been or is to be sold or transferred
more than 120 days after the acquisition or completion of construction and
commencement of full operation thereof, unless (a) the Attributable Debt in
respect thereto and all other Sale and Lease-Back Transactions entered into
after the date of the Indenture (other than those the proceeds of which are
applied to reduce Indebtedness under (b) below), plus the aggregate amount
of then outstanding secured Indebtedness not otherwise permitted or
excepted without equally and ratably securing the Notes, does not exceed
15% of the Consolidated Net Tangible Assets of the Company and its
Restricted Subsidiaries or (b) an amount equal to the fair value of the
Principal Property leased is applied within 120 days to the voluntary
retirement of the Note or other Indebtedness maturing more than one year
thereafter.
-70-
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. CONSOLIDATION, MERGER AND SALE OF ASSETS.
Except in connection with the Solutia Assumption and the related
release of the Escrow Assets or the redemption of the Notes, prior to the
Assumption Date the Company will not, in a single transaction or a series of
related transactions, consolidate or merge with or into (whether or not the
Company is the surviving entity) or transfer all or substantially all of its
properties or assets to another Person.
Except in connection with the Solutia Assumption, from and after the
Assumption Date, the Company may not consolidate with or merge with or into, or
sell, assign, transfer, convey or otherwise dispose of all or substantially all
of its assets in one or more related transactions to, any Person, or permit any
Person to merge with or into it unless each of the following conditions is
satisfied:
(1) immediately after giving effect to such transaction and any
related incurrence of Indebtedness or issuance of Disqualified Stock, no
Default or Event of Default shall have occurred and be continuing;
(2) either (i) the Company shall be the continuing Person, or (ii)
the entity formed by such consolidation or into which the Company is
merged, or the Person to which such properties and assets will have been
conveyed, transferred or leased, assumes the Company's obligation as to the
due and punctual payment of the principal of (and premium, if any, on) and
interest, if any, on the Notes and the performance and observance of every
covenant to be performed by the Company under this Indenture, the Notes and
the Security Documents; any such entity will be organized under the laws of
the United States, one of the States thereof or the District of Columbia;
(3) the Company or the entity or the Person formed by or surviving
any such consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, conveyance or other disposition shall have
been made, except with respect to a consolidation or merger of the Company
with or into a Person that has no outstanding Indebtedness, will, at the
time of such transaction and after giving PRO FORMA effect thereto as if
such transaction had occurred at the beginning of the applicable
four-quarter period, have a Fixed Charge Coverage Ratio of at least 2 to 1;
and
(4) the Company has delivered to the Trustee an Officers' Certificate
and Opinion of Counsel stating that the transaction complies with these
conditions.
-71-
The foregoing shall not prohibit the merger or consolidation of a
Wholly Owned Restricted Subsidiary with the Company; PROVIDED that, in
connection with any such merger or consolidation, no consideration, other than
Qualified Capital Stock in the Surviving Person or the Company, shall be issued
or distributed to the holders of Capital Stock of the Company.
No Subsidiary Guarantor will be permitted to:
(i) consolidate with or merge with or into any Person; or
(ii) sell, convey, transfer or dispose of, all or substantially all
its assets as an entirety or substantially as an entirety, in one
transaction or a series of related transactions, to any Person; or
(iii) permit any Person to merge with or into the Subsidiary Guarantor
unless:
(A) the other Person is the Company or any Wholly Owned Restricted
Subsidiary that is a Subsidiary Guarantor or becomes a Subsidiary Guarantor
concurrently with the transaction; or
(B) (1) either (x) the Subsidiary Guarantor is the continuing Person
or (y) the resulting, surviving or transferee Person expressly assumes by
supplemental indenture all of the obligations of the Subsidiary Guarantor
under its Subsidiary Guarantee; and
(2) immediately after giving effect to the transaction, no
Default has occurred and is continuing;
or
(C) the transaction constitutes a sale or other disposition
(including by way of consolidation or merger) of the Subsidiary Guarantor
or the sale or disposition of all or substantially all the assets of the
Subsidiary Guarantor (in each case other than to the Company or a
Restricted Subsidiary) otherwise permitted by this Indenture.
The sale, assignment, transfer, conveyance or other disposition by the
Company of all or substantially all its property or assets taken as a whole to
one or more of the Company's Subsidiaries shall not relieve the Company from its
obligations under this Indenture and the Notes. In addition, the Company will
not lease all or substantially all its assets in one or more related
transactions to another Person.
-72-
SECTION 5.02. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of either the Company or any Restricted
Subsidiary in accordance with Section 5.01 above, the successor corporation
formed by such consolidation or into which the Company is merged or to which
such transfer is made shall succeed to, and be substituted for, and may exercise
every right and power the Company or such Restricted Subsidiary under this
Indenture with the same effect as if such successor corporation had been named
as the Company or such Restricted Subsidiary herein, and thereafter the
predecessor corporation shall be relieved of all obligations and covenants under
this Indenture and the Notes.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
Each of the following constitutes an "EVENT OF DEFAULT" with respect
to the Notes:
(1) default for 30 days in the payment when due of interest on the
Notes;
(2) default in payment when due of the principal of or premium, if
any, on the Notes, at maturity or otherwise;
(3) failure by the Company to comply with the provisions in Section
4.08, Section 4.12 or Section 5.01;
(4) failure by the Company for 90 days after receipt of notice by the
Trustee or Holders of at least 25% in principal amount of the then
outstanding Notes issued thereunder to comply with any of the other
agreements in this Indenture, the Notes or the Security Documents;
(5) any default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Significant Subsidiaries (or any Indebtedness for money borrowed Guaranteed
by the Company or any of its Significant Subsidiaries if the Company or a
Significant Subsidiary does not perform its payment obligations under such
Guarantee within any grace period provided for in the documentation
governing such Guarantee), whether such Indebtedness or Guarantee exists on
the Issue Date or is thereafter created, which default (a) constitutes a
Payment
-73-
Default or (b) results in the acceleration of such Indebtedness prior
to its Stated Maturity, and in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or that has been
so accelerated, aggregates $35 million or more;
(6) failure by the Company or any of its Significant Subsidiaries to
pay a final judgment or final judgments aggregating in excess of $35
million, which judgment or judgments are not paid, discharged or stayed,
for a period of 60 days;
(7) (A) a court having jurisdiction over the Company or any of its
applicable Significant Subsidiaries enters (x) a decree or order for relief
in respect of the Company or any of its Significant Subsidiaries in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (y) a decree
or order adjudging the Company or any of its Significant Subsidiaries a
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any of its Significant Subsidiaries under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any of its Significant Subsidiaries 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 (B)
the Company or any Significant Subsidiary (i) commences a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (ii) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant
Subsidiary or for all or substantially all the property and assets of the
Company or any Significant Subsidiary or (iii) effects any general
assignment for the benefit of creditors; or
(8) any Subsidiary Guarantee or any Security Document (or any
security interest created thereby) shall be held in any judicial proceeding
to be unenforceable or invalid or shall cease for any reason to be in full
force and effect or the Company or any Subsidiary Guarantor, or any Person
acting on behalf of any Subsidiary Guarantor, shall deny or disaffirm its
obligations under any Subsidiary Guarantee or any Security Document.
SECTION 6.02. ACCELERATION OF MATURITY; RESCISSION.
If an Event of Default (other than an Event of Default specified in
6.01(7) occurs with respect to the Company or any Subsidiary Guarantor) occurs
and is continuing under this Indenture, the Trustee or the Holders of at least
25% in aggregate principal amount of the
-74-
Notes then outstanding, by written notice to the Company (and to the Trustee if
such notice is given by the Holders), may, and the Trustee at the request of
such Holders shall, declare the principal of and premium, if any, and accrued
interest, if any, on the Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal, premium, if any, and accrued
interest, if any, shall be immediately due and payable. If an Event of Default
specified in 6.01(7) occurs with respect to the Company or any Subsidiary
Guarantor, the principal of and premium, if any, and accrued interest, if any,
on the Notes then outstanding shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
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 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.
The Holders of at least a majority in principal amount of the
outstanding Notes, by written notice to the Company and to the Trustee, may
waive all past defaults and rescind and annul a declaration of acceleration and
its consequences if:
(i) all existing Events of Default, other than the nonpayment of the
principal of and premium, if any, and interest, if any, on such Notes that
have become due solely by such declaration of acceleration, have been cured
or waived; and
(ii) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative. Any costs
associated with actions taken by the Trustee under this Section 6.03 shall be
reimbursed to the Trustee by the Company.
-75-
SECTION 6.04. WAIVER OF PAST DEFAULTS AND EVENTS OF DEFAULT.
Provided the Notes are not then due and payable by reason of a
declaration of acceleration, the Holders of a majority in principal amount of
Notes at the time outstanding may on behalf of the Holders of all the Notes
waive any past Default with respect to such Notes and its consequences by
providing written notice thereof to the Company and the Trustee, except a
Default (1) in the payment of interest on or the principal of any Note or (2) in
respect of a covenant or provision hereof which under this Indenture cannot be
modified or amended without the consent of the Holder of each outstanding Note
affected. In the case of any such waiver, the Company, the Trustee and the
Holders of the Notes will be restored to their former positions and rights under
this Indenture, respectively; PROVIDED that no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereto.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of at least a majority in aggregate principal amount of
the outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that may involve the
Trustee in personal liability, or that the Trustee determines in good faith may
be unduly prejudicial to the rights of Holders of the Notes not joining in the
giving of such direction and may take any other action it deems proper that is
not inconsistent with any such direction received from Holders of the Notes. A
Holder may not pursue any remedy with respect to this Indenture or the Notes
unless:
(1) the Holder gives the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer the Trustee indemnity satisfactory
to the Trustee against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of at least a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee
a direction that is inconsistent with the request.
-76-
However, such limitations do not apply to the right of any Holder of a
Note to receive payment of the principal of or premium, if any, or interest, if
any, on such Note or to bring suit for the enforcement of any such payment, on
or after the due date expressed in the Notes, which right shall not be impaired
or affected without the consent of the Holder.
SECTION 6.06. LIMITATION ON SUITS.
A Holder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives the Trustee written notice of a continuing Event
of Default;
(2) the Holders of at least 25% in aggregate principal amount of
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer the Trustee indemnity satisfactory
to the Trustee against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of at least a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee
a direction that is inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over another
Noteholder.
SECTION 6.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No director, officer, employee, incorporator, member of the Board of
Directors or holder of Capital Stock of the Company or any Subsidiary Guarantor,
as such, will have any liability for any obligations of the Company and the
Subsidiary Guarantors under the Notes, the Subsidiary Guarantees, this Indenture
or the Security Documents or for any claim based on, in respect of, or by reason
of, such obligations. Each Holder of Notes by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. This waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
-77-
SECTION 6.08. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of the principal of or premium, if any,
or interest, if any, on such Note or to bring suit for the enforcement of any
such payment, on or after the due date expressed in the Notes shall not be
impaired or affected without the consent of the Holder.
SECTION 6.09. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of principal, premium or interest
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any Subsidiary Guarantor (or any other obligor on the Notes) for the
whole amount of unpaid principal and accrued interest remaining unpaid, together
with interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate set forth in the Notes, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.10. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07) and the Noteholders allowed in any
judicial proceedings relative to the Company or any Subsidiary Guarantor (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder 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
Noteholders, to pay to the Trustee any amount due to 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 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Noteholder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings. All rights of
action and claims under this Indenture or the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the Notes thereof in
-78-
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, be for the ratable benefit of the Noteholders in respect of which
such judgment has been recovered.
SECTION 6.11. PRIORITIES.
If the Trustee collects any money pursuant to this Article Six, it
shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Liquidated Damages, if
any) as to each, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any
amount from any Subsidiary Guarantor, to such Subsidiary Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.11.
SECTION 6.12. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit by a
Noteholder pursuant to Section 6.08 or a suit by Noteholders of more than 10% in
principal amount of the Notes then outstanding.
-79-
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default actually known to a Responsible Officer of
the Trustee has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent person would exercise or use under
the same circumstances in the conduct of his or her own affairs.
The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Notes and this Indenture.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture but, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform on their face to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other
facts stated therein). 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 specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers'
Certificate, subject to the requirement in the preceding sentence, if
applicable.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
-80-
(2) The Trustee shall not be liable for any error of judgment made in
good faith, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to the terms hereof.
(4) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its rights, powers or duties if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity satisfactory to it against such risk or liability is not
reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs (a),
(b), (c) and (e) of this Section 7.01 shall govern every provision of this
Indenture that in any way relates to the Trustee.
(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 security or indemnity satisfactory to the Trustee 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 liable for interest on any money
received by it except as the Trustee may agree in writing with the Company or
any Subsidiary Guarantor. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by the law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(1) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05. The Trustee shall be protected
and shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
-81-
(3) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
by it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers; PROVIDED that the Trustee's conduct does not
constitute gross negligence or bad faith.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(6) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and each agent, custodian and other
person employed to act hereunder.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may make loans to, accept deposits from, perform
services for or otherwise deal with the either of the Company or any Subsidiary
Guarantor, or any Affiliates thereof, with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee,
however, shall be subject to Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes or any Guarantee,
it shall not be accountable for the Company's or any Subsidiary Guarantor's use
of the proceeds from the sale of Notes or any money paid to the Company or any
Subsidiary Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, Guarantee or this Indenture other
than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Noteholder a notice of the Default
within 90 days after it occurs in the manner and to the extent provided in the
TIA and otherwise as provided in this Indenture. Except in the case of a Default
in payment of the principal of or interest on any Note (including payments
pursuant to a redemption or repurchase of the Notes pursuant to the provisions
-82-
of this Indenture), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
If required by TIA Section 313(a), within 60 days after May 15 of any
year, commencing 2002 the Trustee shall mail to each Noteholder a brief report
dated as of such date that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c) and TIA Section 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all Holders of Notes, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose.
A copy of each report at the time of its mailing to Noteholders shall
be filed with the Commission and each stock exchange on which the Notes are
listed. The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange or delisted therefrom.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company and the Subsidiary Guarantors shall pay to the Trustee and
Agents from time to time reasonable compensation for their services hereunder
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust). The Company and the
Subsidiary Guarantors shall reimburse the Trustee and Agents upon request for
all reasonable disbursements, expenses and advances incurred or made by them in
connection with the Trustee's duties under this Indenture, including the
reasonable compensation, disbursements and expenses of the Trustee's agents and
external counsel, except any expense disbursement or advance as may be
attributable to its negligence or bad faith.
The Company and the Subsidiary Guarantors, jointly and severally,
shall fully indemnify each of the Trustee and any predecessor Trustee for, and
hold each of them harmless against, any and all loss, damage, claim, liability
or expense, including without limitation taxes (other than taxes based on the
income of the Trustee or such Agent) and reasonable attorneys' fees and expenses
incurred by each of them in connection with the acceptance or performance of its
duties under this Indenture including the reasonable costs and expenses of
defending
-83-
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee or Agent shall notify the Company and
the Subsidiary Guarantors in writing promptly of any claim of which a
Responsible Officer of the Trustee has actual knowledge asserted against the
Trustee or Agent for which it may seek indemnity; PROVIDED that the failure by
the Trustee or Agent to so notify the Company and the Subsidiary Guarantors
shall not relieve the Company and Subsidiary Guarantors of their obligations
hereunder except to the extent the Company and the Subsidiary Guarantors are
actually prejudiced thereby. In the event that a conflict of interest exists,
the Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel.
Notwithstanding the foregoing, the Company and the Subsidiary
Guarantors need not reimburse the Trustee for any expense or indemnify it
against any loss or liability to have been incurred by the Trustee through its
own negligence or bad faith.
To secure the payment obligations of the Company and the Subsidiary
Guarantors in this Section 7.07, the Trustee shall have a lien prior to the
Notes on all money or property held or collected by the Trustee except for
Escrow Assets and such money or property held in trust to pay principal of and
interest on particular Notes.
The obligations of the Company and the Subsidiary Guarantors under
this Section 7.07 to compensate and indemnify the Trustee, Agents and each
predecessor Trustee and to pay or reimburse the Trustee, Agents and each
predecessor Trustee for expenses, disbursements and advances shall be joint and
several liabilities of the Company and each of the Subsidiary Guarantors and
shall survive the resignation or removal of the Trustee and the satisfaction,
discharge or other termination of this Indenture, including any termination or
rejection hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to this Article Seven.
SECTION 7.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company and the Subsidiary
Guarantors in writing. The Holders of a majority in principal amount of the
outstanding Notes may remove the Trustee by notifying the Company and the
removed Trustee in writing and may appoint a successor Trustee with the
Company's written consent, which consent shall not be unreasonably withheld. The
Company may remove the Trustee at its election if:
-84-
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the outstanding Notes may petition
at the expense of the Company any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall, subject to its rights under Section
7.07, transfer all property held by it as Trustee to the successor Trustee, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to
each Noteholder. Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY CONSOLIDATION, MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10, the successor corporation without any
further act shall be the successor Trustee; PROVIDED such entity shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
(together with its corporate parent) shall have a combined capital and surplus
of at least $100 million as set forth in the most recent
-85-
applicable published annual report of condition. The Trustee shall comply with
TIA Section 310(b), including the provision in Section 310(b)(1).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
SECTION 7.12. PAYING AGENTS.
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal of, or premium, if any, or interest on, the Notes (whether such
sums have been paid to it by the Company or by any obligor on the Notes) in
trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event of
Default, upon written request from the Trustee, deliver to the Trustee all
sums so held in trust by it together with a full accounting thereof; and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
ARTICLE EIGHT
MODIFICATION AND WAIVER
SECTION 8.01. WITHOUT CONSENT OF NOTEHOLDERS.
(a) The Company and Trustee may modify and amend this Indenture or
any Security Document without the consent of any Holder (including entering into
the Security Documents on the Assumption Date), for any of the following
purposes:
(i) to cure any ambiguity, omission, defect or inconsistency in
this Indenture or any Security Document;
-86-
(ii) to provide for the assumption by a successor of the Company of
its obligations under this Indenture or any Security Document;
(iii) to provide for uncertificated Notes, subject to certain
conditions;
(iv) to secure the Notes under this Indenture, to add Subsidiary
Guarantees with respect to the Notes, or to confirm and evidence the
release, termination or discharge of any such security or Subsidiary
Guarantee when such release, termination or discharge is permitted
elsewhere in this Indenture;
(v) to add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right or power conferred upon the
Company;
(vi) to provide for or confirm the issuance of Additional Notes;
(vii) to make any other change that does not adversely affect the
rights of any Holder;
(viii) to comply with any requirement of the SEC in connection with
qualification of this Indenture under the Trust Indenture Act or otherwise;
or
(ix) to add or release Collateral as permitted under the terms of
this Indenture or the Security Documents.
(b) On the Assumption Date, SOI Funding, Solutia, the Subsidiary
Guarantors and Trustee (without notice to or the consent of any Holder) shall
enter into the supplemental indenture attached as Exhibit B to the Escrow
Agreement (the "ASSUMPTION DATE SUPPLEMENTAL INDENTURE"), pursuant to which
Solutia will assume the obligations of SOI Funding hereunder, and the Subsidiary
Guarantors shall each execute the notation of guarantee in the form of Exhibit F
and deliver same to the Trustee. In addition (without notice to or consent of
any Holder), the Trustee and the other parties thereto shall enter into the
Junior Security Agreement and the Junior Intercreditor Agreement, substantially
in the forms attached hereto as EXHIBIT G and EXHIBIT H, respectively.
SECTION 8.02. WITH CONSENT OF NOTEHOLDERS.
(a) The Company and the Trustee, with the consent of the Holders of
not less than a majority in aggregate principal amount of the Notes, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any provision of this Indenture or any Security Document or
modifying the rights of such Holders (it being understood that the provisions of
the Security Documents which may by their terms be amended
-87-
or waived without the consent of the Noteholders do not require the consent of
the Noteholders contemplated hereby).
(b) However, no modification or amendment may, without the consent of
each Holder affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note or alter the provisions with respect
to redemption,
(2) reduce the principal amount of or premium, if any, or interest,
if any, on any Note,
(3) reduce any amount payable upon the occurrence of an Event of
Default,
(4) after the obligation has arisen to make a Change of Control Offer
or an Asset Sale Offer, amend, change or modify in any material respect the
obligation of the Company to make and complete such Change of Control Offer
or make and complete such Asset Sale Offer,
(5) change the place or currency of payment of principal of or
premium, if any, or interest, if any, on any Note,
(6) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of a redemption,
on or after the Redemption Date) of any Note,
(7) reduce the above-stated percentage of outstanding Notes the
consent of whose Holders is necessary to modify or amend this Indenture,
(8) waive a default in the payment of principal of or premium, if
any, or interest, if any, on the Notes (except as set forth under Section
6.01),
(9) reduce the percentage or aggregate principal amount of
outstanding Notes the consent of whose Holders is necessary for waiver of
compliance with certain provisions of this Indenture or for waiver of
certain defaults,
(10) modify or change any provision of this Indenture affecting the
ranking of the Notes or the Subsidiary Guarantees in a manner adverse to
the Holders of the Notes, or
(11) release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or this Indenture other than in accordance
with the other provisions of this Indenture, or amend or modify any
provision relating to such release.
-88-
(c) It shall not be necessary for the consent of the Holders under
this Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under Section 8.01 or
this Section 8.02 becomes effective, the Company shall mail to the Holders a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
(e) Upon the written request of the Company accompanied by a board
resolution authorizing the execution of any such supplemental indenture, and
upon the receipt by the Trustee of evidence reasonably satisfactory to the
Trustee of the consent of the Noteholders as aforesaid and upon receipt by the
Trustee of the documents described in Section 8.06, the Trustee shall join with
the Company in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture, in which case the Trustee may, but shall not be obligated
to, enter into such supplemental indenture.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall
comply with the TIA as then in effect.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS.
(a) After an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note.
(b) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Noteholders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Noteholders at
such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such amendment, supplement, or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Noteholders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date unless the consent of the requisite
number of Noteholders has been obtained.
-89-
(c) After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (9) of Section 8.02. In that case the amendment,
supplement, waiver or other action shall bind each Noteholder who has consented
to it and every subsequent Noteholder or portion of a Note that evidences the
same debt as the consenting Holder's Note.
SECTION 8.05. NOTATION ON OR EXCHANGE OF NOTES.
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee (in accordance with the specific written direction of the Company)
shall request the Holder of the Note (in accordance with the specific written
direction of the Company) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Noteholder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, the Subsidiary
Guarantors shall endorse, and the Trustee shall authenticate a new Note that
reflects the changed terms. Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such amendment, supplement
or waiver.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Eight if the amendment, supplement or waiver does not
affect the rights, duties, liabilities or immunities of the Trustee. If it does
affect the rights, duties, liabilities or immunities of the Trustee, the Trustee
may, but need not, sign such amendment, supplement or waiver. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by Section 12.04, that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Company and the Subsidiary
Guarantors, enforceable against the Company and the Subsidiary Guarantors in
accordance with its terms (subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. DISCHARGE OF INDENTURE.
Upon the request of the Company, this Indenture will cease to be of
further effect and the Trustee, at the expense of the Company, will execute
proper instruments acknowledging
-90-
satisfaction and discharge of the Notes and this Indenture and the Guarantees
when:
(1) either:
(a) all the Notes theretofore authenticated and delivered (other than
destroyed, lost or stolen Notes that have been replaced or paid
and Notes that have been subject to defeasance pursuant to
Section 9.02 or 9.03) have been delivered to the Trustee for
cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation:
(i) have become due and payable by the mailing of a notice of
redemption or otherwise;
(ii) will become due and payable within one year; or
(iii) are to be called for redemption within 12 months under
arrangements reasonably satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the reasonable expense, of the Company;
and the Company has irrevocably deposited or caused to be
deposited with the Trustee funds in trust for the purpose in an
amount sufficient to pay and discharge the entire Indebtedness on
the Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest on
the Notes to the date of such deposit (in case of Notes that have
become due and payable) or to the Stated Maturity or redemption
date, as the case may be;
(2) the Company has paid or caused to be paid all sums payable under this
Indenture by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided in this Indenture relating to the satisfaction and discharge
of the Notes and this Indenture and the Guarantees of the Notes have
been complied with.
After such delivery, the Trustee upon request of the Company shall
acknowledge in writing the discharge of the Company's and the Subsidiary
Guarantors' obligations under the Notes, the Guarantees and this Indenture
except for those surviving obligations specified below.
-91-
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Sections 7.07, 9.05 and 9.06 shall survive such
satisfaction and discharge.
SECTION 9.02. LEGAL DEFEASANCE.
The Company may, at its option and at any time, elect to have its
obligations and the obligations of the Subsidiary Guarantors discharged with
respect to the outstanding Notes on a date the conditions set forth in Section
9.04 are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such
Legal Defeasance means that the Company will be deemed to have paid and
discharged the entire indebtedness represented by the outstanding Notes and to
have satisfied all its other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Company, shall, subject to Section 9.06, execute instruments in form and
substance reasonably satisfactory to the Trustee and Company acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of outstanding Notes to
receive solely from the trust funds described in Section 9.04 and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, (B) the Company's
obligations with respect to such Notes under Sections 2.03, 2.04, 2.05, 2.06,
2,07, 2.08, 2.11, 4.02, 4.03 and 4.05, (C) the rights, powers, trusts, duties,
and immunities of the Trustee hereunder (including claims of, or payments to,
the Trustee under or pursuant to Section 7.07) and the Company's obligations in
connection therewith and (D) this Article Nine.
Concurrently with any Legal Defeasance, the Company may, at its
further option, cause to be terminated, as of the date on which such Legal
Defeasance occurs, all of the obligations under any or all of the Guarantees, if
any, then existing and obtain the release of the Guarantee(s) of any or all
Subsidiary Guarantors. In order to exercise such option regarding a Guarantee,
the Company shall provide the Trustee with written notice of its desire to
terminate such Guarantee prior to the delivery of the Opinion of Counsel
referred to in clause (f) of Section 9.04.
Subject to compliance with this Article Nine, the Company may exercise
its option under this Section 9.02 with respect to the Notes notwithstanding the
prior exercise of its option under Section 9.03 below with respect to the Notes.
SECTION 9.03. COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have its
obligations and the obligations of the Subsidiary Guarantors under Sections
10.01, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18, 4.19, 4.20 (except
for obligations mandated by the TIA) and clauses (1) and (3) of Section 5.01
released with respect to the outstanding Notes on a date the
-92-
conditions set forth in Section 9.04 are satisfied (hereinafter, "COVENANT
DEFEASANCE"). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company may fail to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture and such Notes
shall be unaffected thereby. In addition, upon the Company's exercise of the
option in this Section 9.03, subject to the satisfaction of the conditions set
forth in Section 9.04, Sections 6.01(5), (6) and (8) shall not constitute Events
of Default.
Concurrently with any Covenant Defeasance, the Company may, at its
further option, cause to be terminated, as of the date on which such Covenant
Defeasance occurs, all of the obligations under any or all of the Guarantees, if
any, then existing and obtain the release of the Guarantee(s) of any or all
Subsidiary Guarantors. In order to exercise such option regarding a Guarantee,
the Company shall provide the Trustee with written notice of its desire to
terminate such Guarantee prior to the delivery of the Opinion of Counsel
referred to in clause (g) of Section 9.04.
Notwithstanding any discharge or release of any obligations under this
Indenture pursuant to Section 9.02 or this Section 9.03, the Company's
obligations in Sections 2.04, 2.06, 2.07, 2.08, 7.07, 9.05, 9.06 and 9.08 shall
survive until such time as the Notes have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 9.05 and 9.08 shall survive.
SECTION 9.04. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 9.02
or Section 9.03 to the outstanding Notes:
(a) (1) the Company has irrevocably deposited or caused to be deposited in
trust for the benefit of the Noteholders with the Trustee or a Paying
Agent or a trustee satisfactory to the Trustee and the Company, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee and any such Paying Agent, (x) money in an
amount sufficient, or (y) U.S. Government Obligations that shall be
payable as to principal and interest in such amounts and at such times
as are sufficient, in the opinion of a nationally recognized firm of
independent public accountants or Independent Financial Advisors
expressed in a written certification thereof delivered to the Trustee
(without consideration of any reinvestment of such interest), or (z) a
combination thereof in an amount, sufficient to pay the principal of
(and premium, if any, on) and interest,
-93-
if any, to Stated Maturity (or redemption) on such Notes, on the
scheduled due dates therefor, (2) the trustee of the irrevocable trust
has been irrevocably instructed to pay such money or the proceeds of
such U.S. Government Obligations to the Trustee and (3) the Trustee or
Paying Agent shall have been irrevocably instructed in writing to
apply the deposited money and the proceeds from U.S. Government
Obligations in accordance with the terms of this Indenture and the
terms of the Notes to the payment of principal of and interest on the
Notes;
(b) the deposit described in clause (a) above will not result in a breach
or violation of, or constitute a Default under, any other agreement or
instrument to which either the Company is a party or by which it is
bound;
(c) no Default has occurred and is continuing (1) as of the date of such
deposit (other than a Default resulting from the borrowing of funds to
be applied to such deposit and the grant of any Lien securing such
borrowing) or (2) insofar as clause (7) or (8) of Section 6.01 is
concerned at any time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the
Company in respect of such deposit (it being understood that the
condition in this clause (c) is a condition subsequent and will not be
deemed satisfied until the expiration of such period);
(d) the Company has paid or caused to be paid all sums currently due and
payable by the Company under this Indenture and under the Notes;
(e) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
provided for in this Indenture relating to the termination by the
Company of its obligations have been complied with;
(f) in the case of an election under Section 9.02 or 9.03, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Notes will not recognize income, gain or loss for
United States federal income tax purposes as a result of such legal
defeasance or covenant defeasance and will be subject to United States
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such opinion, in the case of
defeasance under Section 9.02, must refer to and be based upon a
ruling of the Internal Revenue Service or a change in applicable
United States federal income tax law occurring after the date of the
Indenture. The defeasance would
-94-
in each case be effective when 91 days have passed since the date of
the deposit in trust.
SECTION 9.05. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.04 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company and the Subsidiary Guarantors shall (on a joint and
several basis) 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 9.04 or the principal, premium, if any, 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 the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon a request of
the Company any money or U.S. Government Obligations held by it as provided in
Section 9.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 9.06. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and each Subsidiary Guarantor's obligations under
this Indenture, the Notes and the Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Nine 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 9.01; PROVIDED that if the
Company or the Subsidiary Guarantors have made any payment of principal of,
premium, if any, or accrued interest on any Notes because of the reinstatement
of their obligations, the Company or the Subsidiary Guarantors, as the case may
be, shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
-95-
SECTION 9.07. MONEYS HELD BY PAYING AGENT.
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon written demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.04, to the Company
upon a request of the Company (or, if such moneys had been deposited by the
Subsidiary Guarantors, to such Subsidiary Guarantors), and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
SECTION 9.08. MONEYS HELD BY TRUSTEE.
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company or the Subsidiary Guarantors in trust for the payment of the
principal of, or premium, if any, or interest on any Note that are not applied
but remain unclaimed by the Holder of such Note for two years after the date
upon which the principal of, or premium, if any, or interest on such Note shall
have respectively become due and payable shall be repaid to the Company (or, if
appropriate, the Subsidiary Guarantors) upon a request of the Company, or if
such moneys are then held by the Company or the Subsidiary Guarantors in trust,
such moneys shall be released from such trust; and the Holder of such Note
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company and the Subsidiary Guarantors for the payment
thereof, and all liability of the Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; PROVIDED that the Trustee or any such
Paying Agent, before being required to make any such repayment, may, at the
expense of the Company and the Subsidiary Guarantors, either mail to each
Noteholder affected, at the address shown in the register of the Notes
maintained by the Registrar pursuant to Section 2.04, or cause to be published
once a week for two successive weeks, in a newspaper published in the English
language, customarily published each Business Day and of general circulation in
the City of
New York,
New York, a 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 mailing or publication, any unclaimed balance of such moneys
then remaining will be repaid to the Company. After payment to the Company or
the Subsidiary Guarantors or the release of any money held in trust by the
Company or any Subsidiary Guarantors, as the case may be, Noteholders entitled
to the money must look only to the Company and the Subsidiary Guarantors for
payment as general creditors unless applicable abandoned property law designates
another Person.
-96-
ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. GUARANTEE.
From and after the Assumption Date and subject to the provisions of
this Article Ten, the Subsidiary Guarantors, by execution of the Assumption Date
Supplemental Indenture, jointly and severally, guarantee to each Holder (i) the
due and punctual payment of the principal of and interest on each Note, when and
as the same shall become due and payable, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the overdue principal
of and interest on the Notes, to the extent lawful, and the due and punctual
payment of all other obligations and due and punctual performance of all
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of such Note, this Indenture and the Registration Rights Agreement,
and (ii) in the case of any extension of time of payment or renewal of any Notes
or any of such other obligations, that the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
at stated maturity, by acceleration or otherwise. From and after the Assumption
Date, each Subsidiary Guarantor, by execution of the Assumption Date
Supplemental Indenture, agrees that its obligations hereunder shall be absolute
and unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any such Note or this Indenture, any failure
to enforce the provisions of any such Note, this Indenture or the Registration
Rights Agreement, any waiver, modification or indulgence granted to the Company
with respect thereto by the Holder of such Note, or any other circumstances
which may otherwise constitute a legal or equitable discharge of a surety or
such Subsidiary Guarantor.
Each Subsidiary Guarantor hereby waives diligence, presentment, demand
for payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest or notice with respect to any such Note or the Indebtedness evidenced
thereby and all demands whatsoever, and covenants that this Guarantee will not
be discharged as to any such Note except by payment in full of the principal
thereof and interest thereon. Each Subsidiary Guarantor hereby agrees that, as
between such Subsidiary Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Six for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (ii) in
the event of any declaration of acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall forthwith
become due and payable by each Subsidiary Guarantor for the purpose of this
Guarantee.
-97-
The Subsidiary Guarantors shall have the right to seek contribution
from any non-paying Subsidiary Guarantor so long as the exercise of such right
does not impair the rights of any Holder under the Subsidiary Guarantees.
SECTION 10.02. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To further evidence the Subsidiary Guarantee set forth in Section
10.01, each Subsidiary Guarantor hereby agrees, on the Assumption Date, that a
notation of such Subsidiary Guarantee, substantially in the form included in
EXHIBIT F hereto, shall be endorsed on each Note authenticated and delivered by
the Trustee on the Assumption Date and such Subsidiary Guarantee shall be
executed by either manual or facsimile signature of an Officer or an Officer of
a general partner, as the case may be, of each Subsidiary Guarantor. The
validity and enforceability of any Guarantee shall not be affected by the fact
that it is not affixed to any particular Note.
Each of the Subsidiary Guarantors hereby agrees that its Guarantee set
forth in Section 10.01 shall be in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Guarantee.
If an Officer of a Subsidiary Guarantor whose signature is on this
Indenture or a Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Guarantee is endorsed or at any time
thereafter, such Subsidiary Guarantor's Guarantee of such Note shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Subsidiary Guarantor.
SECTION 10.03. RELEASE OF SUBSIDIARY GUARANTORS.
The Guarantee of any Subsidiary Guarantor will be automatically and
unconditionally released and discharged upon any of the following:
(A) any transfer, to any Person not an Affiliate of the Company, of all of
the Capital Stock held by the Company or any of its Restricted
Subsidiaries in such Subsidiary Guarantor (which transfer is made in
accordance with this Indenture and, if the Company or any of its
Restricted Subsidiaries intends to comply with Section 4.12 by making
an investment or expenditure in Replacement Assets, the Company or
such Restricted Subsidiary delivers to the Trustee a written agreement
that it will make such investment or expenditure within the time frame
set forth in Section 4.12); or
-98-
(B) the designation of such Subsidiary Guarantor as an Unrestricted
Subsidiary in accordance with the provisions of this Indenture;
and in each such case, 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 such transactions have been complied
with and that such release is authorized and permitted hereunder.
The Trustee shall execute any documents reasonably requested by either
the Company or a Subsidiary Guarantor in order to evidence the release of such
Subsidiary Guarantor from its obligations under its Guarantee endorsed on the
Notes and under this Article Ten.
SECTION 10.04. WAIVER OF SUBROGATION.
Each Subsidiary Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Subsidiary
Guarantor's obligations under its Guarantee and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Notes against the Company, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including, without
limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or Note on account of such claim or other rights. If any amount shall be
paid to any Subsidiary Guarantor in violation of the preceding sentence and the
Notes shall not have been paid in full, such amount shall have been deemed to
have been paid to such Subsidiary Guarantor for the benefit of, and held in
trust for the benefit of, the Holders of the Notes, and shall forthwith be paid
to the Trustee for the benefit of such Holders to be credited and applied upon
the Notes, whether matured or unmatured, in accordance with the terms of this
Indenture. Each Subsidiary Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10.06 is knowingly made
in contemplation of such benefits.
SECTION 10.05. NOTICE TO TRUSTEE.
The Company or any Subsidiary Guarantor shall give prompt written
notice to the Trustee of any fact known to the Company or any such Subsidiary
Guarantor which would prohibit the making of any payment to or by the Trustee at
its Corporate Trust Office in respect of the Guarantees. Notwithstanding the
provisions of this Article Ten or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of
-99-
the Guarantees, unless and until the Trustee shall have received written notice
thereof from the Company no later than one Business Day prior to such payment;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of this Section 10.05, and subject to the provisions of Sections
7.01 and 7.02, shall be entitled in all respects to assume that no such facts
exist; PROVIDED, HOWEVER, that if the Trustee shall not have received the notice
referred to in this Section 10.07 at least one Business Day prior to the date
upon which by the terms hereof any such payment may become payable for any
purpose under this Indenture (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Note), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it less than one Business Day prior to such date.
ARTICLE ELEVEN
SECURITY DOCUMENTS
SECTION 11.01. SECURITY DOCUMENTS.
The due and punctual payment of the principal of and interest on the
Notes when and as the same shall be due and payable, whether on an Interest
Payment Date, at maturity, by acceleration, repurchase, redemption, special
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes and performance of all other obligations of the Company and the
Subsidiary Guarantors to the Holders or the Trustee under this Indenture and the
Notes, according to the terms hereunder or thereunder, shall be secured as
provided in the Security Documents. Each Holder, by its acceptance of the Notes,
consents and agrees to the terms of the Security Documents (including, without
limitation, the provisions providing for foreclosure and release of Collateral)
as the same may be in effect or may be amended from time to time in accordance
with their terms and authorizes and directs the Collateral Agent and the
Collateral Trustee, with respect to the Sharing Securities Documents, to enter
into such security documents and to perform their obligations and exercise their
rights thereunder in accordance therewith. The Company shall deliver to the
Trustee copies of all documents delivered to the Collateral Agent and the
Collateral Trustee pursuant to the Security Documents, and shall do or cause to
be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Security Documents, to assure and confirm to
the Trustee, the Collateral Agent and the Collateral Trustee the security
interest in the Collateral contemplated hereby, by the Security Documents or any
part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes
secured thereby, according to the intent and purposes herein and therein
expressed. The Company shall take, upon request of the Trustee, any and all
actions
-100-
reasonably required to cause the Security Documents to create and maintain, as
security for the obligations of the Company hereunder, a valid and enforceable
perfected lien on and security interest in all the Collateral, in favor of the
Collateral Agent for the benefit of the Holders and other Persons for whose
benefit the Collateral Agent or Trustee, as applicable, acts pursuant to the
Security Documents.
SECTION 11.02. RECORDING AND OPINIONS.
(a) The Company and, if applicable, the Subsidiary Guarantors shall
take or cause to be taken all action required to perfect, maintain, preserve and
protect the Lien on and security interest in the Collateral granted by the
Security Documents (subject only to Permitted Liens), including without
limitation, the filing of financing statements, continuation statements, Sharing
Mortgages and any instruments of further assurance, in such manner and in such
places as may be required by law fully to preserve and protect the rights of the
Holders and the Trustee under this Indenture and the Security Documents to all
property comprising the Collateral. The Company and the Subsidiary Guarantors
shall from time to time promptly pay all financing, continuation statement and
mortgage recording, registration and/or filing fees, charges and taxes relating
to this Indenture and the Security Documents, any amendments thereto and any
other instruments of further assurance required hereunder or pursuant to the
Security Documents. The Trustee shall have no obligation to, nor shall it be
responsible for any failure to, so register, file or record.
(b) The Company shall at all times comply with the provisions of TIA
Section 314(b), whether or not the TIA is then applicable to the obligations of
the Company and, if applicable, the Subsidiary Guarantors under this Indenture.
SECTION 11.03. RELEASE OF COLLATERAL.
(a) Collateral may (and, as applicable, shall) be released or
substituted only in accordance with the terms of the Security Documents.
(b) The release of any Collateral from the terms of this Indenture
and the Security Documents shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Collateral is released pursuant to the terms of the Security Documents.
SECTION 11.04. CERTIFICATES OF THE COMPANY.
To the extent applicable, the Company shall comply (or cause
compliance) with TIA Section 313(b), relating to reports, and TIA Section
314(d), relating to the release of property or securities from the lien and
security interest of the Security Documents and relating to the substitution
therefor of any property or securities to be subjected to the lien and security
interest
-101-
of the Security Documents. Any certificate or opinion required by TIA Section
314(d) may be made by an Officer of the Company except in cases where TIA
Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected or approved by the Collateral Agent in the exercise of
reasonable care.
SECTION 11.05. CERTIFICATES OF THE TRUSTEE.
In the event that the Company wish to release Collateral in accordance
with the Security Documents and have delivered the certificates and documents
required by the Security Documents and Sections 11.03 and 11.04 hereof, the
Trustee shall determine whether it has received all documentation required by
TIA Section 314(d) in connection with such release and, based on the Opinion of
Counsel delivered pursuant to Section 12.04(2), shall deliver a certificate to
the Collateral Agent setting forth such determination. The Trustee, however,
shall have no duty to confirm the legality or validity of such documents, its
sole duty being to certify that it has received such documentation which on
their face conform to Section 314(d) of the TIA.
SECTION 11.06. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS.
Subject to the provisions of Sections 7.01 and 7.02 hereof, the
Trustee may, in its sole discretion and without the consent of the Holders of
Notes, direct, on behalf of the Holders of Notes, the Collateral Trustee or the
Collateral Agent, as the case may be, to take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Security Documents
and (b) collect and receive any and all amounts payable in respect of the
obligations of the Company hereunder. The Trustee shall have power to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral by any acts that may be unlawful or in violation of
the Security Documents or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance with
any legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or to the Trustee).
SECTION 11.07. AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS.
The Trustee is authorized to receive any funds for the benefit of the
Holders distributed under the Security Documents, and to make further
distributions of such funds to the Holders according to the provisions of this
Indenture and the Security Documents.
-102-
SECTION 11.08. TERMINATION OF SECURITY INTEREST.
Upon the payment in full of all obligations of the Company under this
Indenture and the Notes, or upon Legal Defeasance, the Trustee shall, at the
request of the Company, deliver a certificate to the Collateral Agent stating
that such obligations have been paid in full.
SECTION 11.09. SECURITY DOCUMENTS.
By their acceptance of the Notes, upon the Solutia Assumption, the
Holders hereby authorize and instruct the Trustee to enter into, for its benefit
and the benefit of the Noteholders, the Junior Security Agreement and the Junior
Intercreditor Agreement, substantially in the forms attached as Exhibits G and
H, respectively.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies any TIA provision that may be so modified, such TIA provision shall be
deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA provision
shall be excluded from this Indenture.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 12.02. NOTICES.
Except for notice or communications to Holders, any notice or
communication shall be given in writing and delivered in person, sent by
facsimile, delivered by commercial courier service or mailed by first-class
mail, postage prepaid, addressed as follows:
-103-
If to the Company:
SOI Funding Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Syracuse & Hirschtritt LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Solutia Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (if by courier, zip code 63141)
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-104-
If to the Trustee, Registrar or Paying Agent:
Mailing Address:
HSBC Bank USA
Issuer Services
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Delivery Address:
HSBC Bank USA
Issuer Services
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Such notices or communications shall be effective when received and
shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company, the Subsidiary Guarantors or the Trustee by written
notice to the others may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication to a Noteholder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
-105-
SECTION 12.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company or
such Subsidiary Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each certificate and opinion with respect to compliance by or on
behalf of the Company or any Subsidiary Guarantor with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such covenant or condition has been complied with.
-106-
SECTION 12.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 12.07. BUSINESS DAYS; LEGAL HOLIDAYS.
A "BUSINESS DAY" or "BUSINESS DAY" is a day that is not a Legal
Holiday. A "LEGAL HOLIDAY" is a Saturday, a Sunday or other day on which (i)
commercial banks in the City of
New York are authorized or required by law to
close or (ii) the New York Stock Exchange is not open for trading. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
SECTION 12.08. GOVERNING LAW.
This Indenture, the Notes and the Guarantees shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
SECTION 12.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company and the Subsidiary Guarantors in this
Indenture and the Notes shall bind their respective successors. All agreements
of the Trustee, any additional trustee and any Paying Agents in this Indenture
shall bind its successor.
SECTION 12.11. MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
SECTION 12.12. TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be
-107-
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 12.13. SEPARABILITY.
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
SOI FUNDING CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
HSBC BANK USA, as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
CUSIP
SOI FUNDING CORP.
(may be assumed by
SOLUTIA INC.)
No. $
11.25% SENIOR SECURED NOTE DUE 2009
SOI FUNDING CORP., a Delaware corporation, as issuer (the "COMPANY"),
for value received, promises to pay to CEDE & CO. or registered assigns the
principal sum of [ ] on July 15, 2009.
Interest Payment Dates: July 15 and January 15.
Record Dates: June 30 and December 31.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by one of its duly authorized officers.
SOI FUNDING CORP.
By:
-----------------------------------
Name:
Title:
A-2
Certificate of Authentication
This is one of the 11.25% Senior Secured Notes Due 2009 referred to in
the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By:
-----------------------------------
Dated:
A-3
[FORM OF REVERSE OF NOTE]
SOI FUNDING CORP.
11.25% SENIOR SECURED NOTE DUE 2009
1. INTEREST. SOI FUNDING CORP., a Delaware corporation, as issuer
(the "COMPANY"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 11.25% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including July 9, 2002 to but excluding the
date on which interest is paid. Interest shall be payable in arrears on each
July 15 and January 15, commencing July 15, 2003. Interest will be computed on
the basis of a 360-day year of twelve 30-day months and actual days elapsed. The
Company shall pay interest on overdue principal and on overdue interest (to the
full extent permitted by law) at the rate borne by the Notes.
2. METHOD OF PAYMENT. The Company will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on June 30 or December 31 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
money of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Interest may be paid by check
mailed to the Holder entitled thereto at the address indicated on the register
maintained by the Registrar for the Notes.
3. PAYING AGENT AND REGISTRAR. Initially, HSBC Bank USA (the
"TRUSTEE") will act as a Paying Agent and Registrar. The Company may change any
Paying Agent or Registrar without notice. Neither the Company nor any of its
Affiliates may act as Paying Agent or Registrar.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of July 9, 2002 (the "INDENTURE") between the Company and the Trustee. This
is one of an issue of Notes of the Company issued, or to be issued, under the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code Sections 77aaa-77bbbb), as amended from time to time. The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of them. Capitalized and certain other terms used
herein and not otherwise defined have the meanings set forth in the Indenture.
5. OPTIONAL REDEMPTION. (a) At any time on or prior to July 15,
2005, the Company may at its option on any one or more occasions redeem Notes
(including Additional Notes, if any) in an aggregate principal amount not to
exceed 35% of the aggregate principal
A-4
amount of Notes (including Additional Notes, if any) issued under the Indenture
at a redemption price of 111.250% of the principal amount, plus accrued and
unpaid interest, if any, to the redemption date, with the net cash proceeds of
one or more Public Equity Offerings; PROVIDED that:
(1) at least 65% of the aggregate principal amount of Notes
(including Additional Notes, if any) issued under the Indenture remains
outstanding immediately after the occurrence of such redemption (excluding
Notes held by the Company and its Subsidiaries); and
(2) the redemption occurs within 90 days of the date of the closing
of such Public Equity Offering.
(b) The Trustee will select Notes called for redemption pursuant to
this paragraph 5 on a PRO RATA basis, by lot or by such method as the Trustee
shall deem fair and appropriate; PROVIDED that no Notes of $1,000 or less shall
be redeemed in part. A new Note in principal amount equal to the unredeemed
portion thereof will be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for redemption pursuant to this
paragraph 5 become due on the date fixed for redemption. On and after the
redemption date, interest stops accruing on Notes or portions of them called for
redemption.
6. SPECIAL MANDATORY REDEMPTION. In the event that the Solutia
Assumption does not occur on or prior to the Deadline, the Company will, on a
day not more than 20 days following the Deadline (the "SPECIAL MANDATORY
REDEMPTION DATE") redeem all of the Notes (the "SPECIAL MANDATORY REDEMPTION")
at a redemption price equal to the sum of (a) $206,702,624.80 (which amount is
equal to 103% of the original issue amount of the Units ($200,682,160.00)) plus
(b) the accrued and unpaid interest on the Notes from and including the Issue
Date to but excluding the Special Mandatory Redemption Date. The "DEADLINE" is
August 9, 2002 or such earlier time that Solutia determines not to refinance its
Credit Facility in accordance with the refinancing plan described in the
Offering Memorandum.
7. NOTICE OF REDEMPTION. Except in the case of Special Mandatory
Redemption, notices of redemption shall be mailed by first class mail at least
30 but not more than 60 days before the redemption date to each Holder of Notes
to be redeemed at its registered address. Notices of redemption may not be
conditional. If any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion of the principal
amount thereof to be redeemed. Notice of the Special Mandatory Redemption will
be mailed promptly to each Holder of Notes at its registered address, the
Trustee and the Securities Intermediary.
8. OFFERS TO PURCHASE. The Indenture provides that upon the
occurrence of a Change of Control or an Asset Sale and subject to further
limitations contained therein,
A-5
the Company shall make an offer to purchase outstanding Notes in accordance with
the procedures set forth in the Indenture.
9. REGISTRATION RIGHTS. (a) Pursuant to an Exchange and Registration
Rights Agreement among Solutia, from and after the Solutia Assumption, the
Subsidiary Guarantors and the Initial Purchasers named therein (the
"REGISTRATION RIGHTS AGREEMENT"), Solutia will be obligated to consummate an
exchange offer pursuant to which the Holder of this Note shall have the right to
exchange this Note for Notes which have been registered under the Securities
Act, in like principal amount and having substantially identical terms as the
Notes. (b) If (i) within 60 days after the Assumption Date, neither the Exchange
Offer Registration Statement nor the Shelf Registration Statement has been filed
with the Commission; (ii) within 120 days after the Assumption Date, the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, has not been declared effective; (iii) within 150 days after the
Assumption Date, the Exchange Offer has not been consummated; or (iv) after
either the Exchange Offer Registration Statement or the Shelf Registration
Statement has been declared effective, such Registration Statement thereafter
ceases to be effective or usable (subject, in the case of the Shelf Registration
Statement, to the exceptions set forth in the Registration Rights Agreement) in
connection with resales of the Initial Placement or Exchange Securities in
accordance with and during the periods specified in Sections 2 and 3 of the
Registration Rights Agreement (each such event referred to in clauses (i)
through (iv), a "REGISTRATION DEFAULT"), liquidated damages ("LIQUIDATED
DAMAGES") will accrue on the Initial Placement and the Exchange Securities from
and including the date on which any such Registration Default shall occur to but
excluding the date on which all Registration Defaults have been cured.
Liquidated Damages will accrue at a rate equal to 0.25% per annum of the
aggregate principal amount of the Notes during the 90-day period immediately
following the occurrence of any Registration Default and shall increase by 0.25%
per annum for each subsequent 90-day period during which such Registration
Default continues, but in no event shall such Liquidated Damages exceed 1.00%
per annum.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay to it any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Notes or portion of a Note selected for
redemption, or register the transfer of or exchange any Notes for a period of 15
days before a mailing of notice of redemption.
11. PERSONS DEEMED OWNERS. The registered Holder of this Note may be
treated as the owner of this Note for all purposes.
12. UNCLAIMED MONEY. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee will pay the money back to
the Company at its
A-6
written request. After that, Holders entitled to the money must look to the
Company for payment as general creditors unless an "abandoned property" law
designates another Person.
13. AMENDMENT, SUPPLEMENT, WAIVER, ETC. The Company, the Subsidiary
Guarantors, if any, and the Trustee (if a party thereto) may, without the
consent of the Holders of any outstanding Notes, amend, waive or supplement the
Indenture or the Notes 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, providing for the assumption by a successor to the Company of its
obligations under the Indenture or any Security Documents and making any change
that does not materially and adversely affect the rights of any Holder. Other
amendments and modifications of the Indenture or the Notes may be made by the
Company, the Subsidiary Guarantors, if any, and the Trustee with the consent of
the Holders of not less than a majority of the aggregate principal amount of the
outstanding Notes, subject to certain exceptions requiring the consent of the
Holders of the particular Notes to be affected.
14. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations
on the ability of the Company and its Restricted Subsidiaries to, among other
things, incur additional Indebtedness, pay dividends on, redeem or repurchase
its Capital Stock, make certain investments, sell assets, create restrictions on
the payment of dividends or other amounts to the Company from its Restricted
Subsidiaries, enter into transactions with Affiliates, expand into unrelated
businesses, create liens, enter into sale and leaseback transactions or
consolidate, merge or sell all or substantially all of the assets of the Company
and its Restricted Subsidiaries and requires the Company to provide reports to
Holders of the Notes. Such limitations are subject to a number of important
qualifications and exceptions. Pursuant to Section 4.06 of the Indenture, the
Company must annually report to the Trustee on compliance with such limitations.
15. SUCCESSOR CORPORATION. When a successor corporation assumes all
the obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article Five of the Indenture, the
predecessor corporation will, except as provided in Article Five, be released
from those obligations.
16. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than an Event of Default specified in Section 6.01(7) of the
Indenture with respect to the Company or any Subsidiary Guarantor, if any)
occurs and is continuing, then, and in each and every such case, either the
Trustee, by notice in writing to the Company, or the Holders of not less than
25% of the principal amount of the Notes then outstanding, by notice in writing
to the Company and the Trustee, may, and the Trustee at the request of such
Holders shall, declare due and payable, if not already due and payable, the
principal of and any accrued and unpaid interest on all of the Notes; and upon
any such declaration all such amounts upon such Notes shall become and be
immediately due and payable, anything in the Indenture or in the Notes to the
A-7
contrary notwithstanding. If an Event of Default specified in Section 6.01(7) of
the Indenture occurs with respect to the Company or any Subsidiary Guarantor,
then the principal of and any accrued and unpaid interest on all of the Notes
shall immediately become due and payable without any declaration or other act on
the part of the Trustee or any Holder. Holders may not enforce the Indenture or
the Notes except as provided in the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Notes. Subject to
certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal, premium, if any, or interest on the Notes or a
default in the observance or performance of any of the obligations of the
Company under Article Five of the Indenture) if it determines that withholding
notice is in their best interests.
17. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, agent, member or stockholder or Affiliate of
the Company, as such, shall have any liability for any obligations of the
Company under the Notes, the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. No past, present or future
director, officer, employee, incorporator, agent or stockholder or Affiliate of
any of the Subsidiary Guarantors, as such, shall have any liability for any
obligations of the Subsidiary Guarantors under the Guarantees, the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes and Guarantees by accepting a Note and a
Guarantee waives and releases all such liabilities. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees.
19. DISCHARGE. The Company's obligations pursuant to the Indenture
will be discharged, except for obligations pursuant to certain sections thereof,
subject to the terms of the Indenture, upon the payment of all the Notes or upon
the irrevocable deposit with the Trustee of United States dollars or U.S.
Government Obligations sufficient to pay when due principal of and interest on
the Notes to maturity or redemption, as the case may be.
20. GUARANTEES. From and after the Solutia Assumption Date, the Note
will be entitled to the benefits of certain Guarantees made for the benefit of
the Holders. Reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and obligations thereunder of
the Subsidiary Guarantors, the Trustee and the Holders.
21. AUTHENTICATION. This Note shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Note.
A-8
22. GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. The Trustee, the
Company and the Subsidiary Guarantors agree to submit to the jurisdiction of the
courts of the State of New York in any action or proceeding arising out of or
relating to the Indenture or the Notes.
23. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
SOI Funding Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Syracuse & Hirschtritt LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Solutia Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ (if by courier, zip code 63141)
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A-9
With a copy to:
Winston & ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
A-10
ASSIGNMENT
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
---------------- -------------------------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
---------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the 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 Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by
the Company pursuant to Section 4.08 or Section 4.12 of the Indenture, check the
appropriate box:
? Section 4.08 ? Section 4.12
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.08 or Section 4.12 of the Indenture, state the amount you
elect to have purchased:
$________________________________________
(multiple of $1,000)
Date:
------------------------------------
Your Signature:
-----------------------------------------
(Sign exactly as your name appears on the
face of this Note)
-----------------------------------------
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the 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 Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-12
EXHIBIT B
[FORM OF LEGEND FOR 144A SECURITIES AND OTHER SECURITIES THAT ARE
RESTRICTED SECURITIES]
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB") or (B) IT IS
ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT.
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
B-1
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING.
B-2
[FORM OF ASSIGNMENT FOR 144A SECURITIES AND OTHER SECURITIES THAT
ARE
RESTRICTED SECURITIES]
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
/ / (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Rule 144A
thereunder.
or
/ / (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: Your Signature:
---------------- ------------------------------
(Sign exactly as your name
appears on the other side of this Note)
Signature Guarantee:
-----------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the 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 Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-3
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with Rule
144A under the Securities Act, and, accordingly, the transferor hereby further
certifies that the beneficial interest or certificated Note is being transferred
to a Person that the transferor reasonably believed and believes is purchasing
the beneficial interest or certificated Note for its own account, or for one or
more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer" within the meaning of Rule 144A in a transaction meeting the requirements
of Rule 144A and such transfer is in compliance with any applicable securities
laws of any state of the United States. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or certificated Note will be subject to the restrictions on
transfer enumerated on the Rule 144A Notes and/or the certificated Note and in
the Indenture and the Securities Act.
Dated:
------------------- ----------------------------------------------
NOTICE: To be executed by an executive
officer
B-4
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S NOTE]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS UNLESS REGISTERED UNDER THE ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
C-1
[FORM OF ASSIGNMENT FOR REGULATION S NOTE]
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
/ / (a) this Note is being transferred in compliance with the
exemption from registration under the Securities Act provided by Regulation S
thereunder.
or
/ / (b) this Note is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: Your Signature:
---------------- -------------------------------------
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee:
-----------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the 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 Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-2
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with Rule
903 or Rule 904 under the Securities Act and, accordingly, the transferor hereby
further certifies that (i) the transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the transferee
was outside the United States or such transferor and any Person acting on its
behalf reasonably believed and believes that the transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the restricted period under Regulation S, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or certificated Note will be subject to the restrictions on transfer enumerated
on the Regulation S Notes and/or the certificated Note and in the Indenture and
the Securities Act.
Dated:
--------------------- -------------------------------------------
NOTICE: To be executed by an executive
officer
C-3
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
D-1
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
----------------------------------------
HSBC Bank USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Issuer Services
----------------------------------------
Re: SOI Funding Corp., a Delaware corporation, as issuer
(the "Company"), 11.25% Senior Secured Notes Due 2009
(the "Notes")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with 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 or to a
person in the United States;
(2) either (a) at the time the buy offer 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
pre-arranged 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 904(a) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
E-1
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You 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.
Very truly yours,
[Name of Transferee]
By:
-----------------------------------
E-2
EXHIBIT F
GUARANTEES
From and after the Assumption Date, each of the undersigned (the
"Subsidiary Guarantors") hereby jointly and severally unconditionally
guarantees, to the extent set forth in the Indenture dated as of July 9, 2002 by
and among SOI Funding Corp., a Delaware corporation, as issuer (the "Company"),
whose obligations thereunder have been assumed (or are being assumed) by
Solutia
Inc., a Delaware corporation, the Subsidiary Guarantors, as guarantors, and HSBC
Bank USA, as Trustee (as amended, restated or supplemented from time to time,
the "Indenture"), and subject to the Indenture, (a) the due and punctual payment
of the principal of, and premium, if any, and interest on the Notes, when and as
the same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal of, and
premium and, to the extent permitted by law, interest, and the due and punctual
performance of all other obligations of the Company to the Noteholders or the
Trustee, all in accordance with the terms set forth in Article Ten of the
Indenture, and (b) in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Subsidiary Guarantors to the Noteholders and to
the Trustee pursuant to this Guarantee and the Indenture are expressly set forth
in Article Ten of the Indenture, and reference is hereby made to the Indenture
for the precise terms and limitations of this Guarantee. Each Holder of the Note
to which this Guarantee is endorsed, by accepting such Note, agrees to and shall
be bound by such provisions.
[Signatures on Following Pages]
F-1
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Guarantee to be signed by a duly authorized officer.
F-2