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The Bank of New York
Corporate Trust Trustee Administration
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Ladies and Gentlemen:
ISP Holdings Inc., a Delaware corporation (the 'Company'), proposes to make
offers (the 'Exchange Offers') to exchange (i) its 9% Senior Notes due 2003 (the
'Old 9% Notes') for its Series B 9% Senior Notes due 2003 (the 'New 9% Notes'),
and (ii) its 9 3/4 Senior Notes due 2002 (the 'Old 9 3/4 Notes', and together
with the Old 9% Notes, the 'Old Securities') for its Series B 9 3/4% Series
Notes due 2002 (the 'New 9 3/4% Notes', and together with the New 9% Notes, the
'New Securities'). The terms and conditions of the Exchange Offers as currently
contemplated are set forth in a Prospectus, dated , 1997
(the 'Prospectus'), proposed to be distributed to all of the record holders of
the Old Securities. The Old Securities and the New Securities are collectively
referred to herein as the 'Securities'.
The Company hereby appoints The Bank of New York to act as exchange agent
(the 'Exchange Agent') in connection with the Exchange Offers. References
hereinafter to 'you' shall refer to The Bank of New York.
Each Exchange Offer is expected to be commenced by the Company on or about
, 1997. The appropriate Letter of Transmittal accompanying
the Prospectus is to be used by holders of the Old Securities to accept the
applicable Exchange Offer, and contains instructions with respect to the
delivery of certificates for Old Securities tendered.
Each Exchange Offer shall expire at 12 Midnight, New York City time, on
, 1997 or on such later date or time to which the Company
may extend the Exchange Offers (the 'Expiration Date'). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend either Exchange Offer from time to time and may extend such Exchange
Offer by giving oral (confirmed in writing) or written notice to you before 9:00
A.M., New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right to amend or terminate the Exchange
Offers, and not to accept for exchange any Old Securities not theretofore
accepted for exchange, as specified in the Prospectus under the caption 'The
Exchange Offers--Expiration Date; Amendments.' The Company will give oral
(confirmed in writing) or written notice of any amendment, termination or
nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned 'The Exchange Offers' or as
specifically set forth herein; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish separate accounts with respect to the Old Securities
at The Depository Trust Company (the 'Book-Entry Transfer Facility') for
purposes of each Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
applicable Old Securities by causing the Book-Entry Transfer Facility to
transfer such Old Securities into your applicable account in accordance with the
Book-Entry Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Securities (or confirmation of book-entry transfer into your account at
the Book-Entry Transfer Facility) and any other documents delivered or mailed to
you by or for holders of the Old Securities to ascertain whether: (i) the
Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with instructions set forth therein; and (ii)
the Old Securities have otherwise been properly tendered. You shall have no such
duty, however, with respect to any such document which you do not receive, other
than as a result of your own gross negligence or willful misconduct. In each
case where the Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old Securities are not in
proper form for transfer or some other irregularity in connection with the
acceptance of either Exchange Offer exists, you will endeavor to inform the
presenters of the need for fulfillment of all requirements and to take any other
action as may be necessary or advisable to cause such irregularity to be
corrected.
4. With the approval of the Chief Executive Officer, any Senior Vice
President, any Executive Vice President, or any Vice President of the Company
(such approval, if given orally, to be confirmed in writing) or any other party
designated by such an officer in writing, you are authorized to waive any
irregularities in connection with any tender of Old Securities pursuant to the
Exchange Offers.
5. Tenders of Old Securities may be made only as set forth in the Letter of
Transmittal and in the section of Prospectus captioned 'The Exchange
Offers--Procedures for Tendering' and Old Securities shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Securities which
the Chief Executive Officer, any Senior Vice President, any Executive Vice
President, or any Vice President of the Company shall approve as having been
properly tendered shall be considered to be properly tendered (such approval, if
given orally, shall be confirmed in writing).
6. You shall advise the Company with respect to any Old Securities received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only
when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Securities
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled.
You shall accept partial tenders of Old Securities where so indicated and
as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the transfer agent for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the applicable Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the applicable
Exchange Offer, the Company will notify you (such notice if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Securities properly tendered and you, on behalf of the Company, will
exchange such Old Securities for New Securities and cause such Old Securities to
be cancelled. Delivery of New Securities will be made on behalf of the Company
by you at the rate of $1,000 principal amount of New Securities for each $1,000
principal amount of the corresponding series of Old Securities tendered promptly
after notice (such notice if given orally, to be confirmed in writing) of
acceptance of said Old Securities by the Company; provided, however, that in all
cases, Old Securities tendered pursuant to the Exchange Offers will be exchanged
only after timely receipt by you of certificates for such Old Securities (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue New Securities only in denominations of $1,000 or any
integral multiple thereof.
9. Tenders pursuant to the Exchange Offers are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Securities tendered pursuant to the Exchange Offer
may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offers are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (and confirmed in writing) by the Company to you.
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11. If, pursuant to the Exchange Offers, the Company does not accept for
exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption 'The Exchange Offers--Conditions' or otherwise, you shall as soon as
practicable after the expiration or termination of the applicable Exchange Offer
return those certificates for unaccepted Old Securities (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old Securities
or for New Securities shall be forwarded by (a) first-class certified mail,
return receipt requested under a blanket surety bond protecting you and the
Company from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) by registered mail insured separately for the
replacement value of each of such certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth herein or in the section of Prospectus captioned 'The Exchange
Offers' or as may be subsequently agreed to in writing by you and the
Company;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Old Securities represented thereby deposited
with you pursuant to the Exchange Offers, and will not be required to and
will make no representation as to the validity, value or genuineness of the
Exchange Offers; provided, however, that in no way will your general duty
to act in good faith be discharged by the foregoing;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and reasonably
believed by you to be genuine and to have been signed by the proper party
or parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or represented by a
proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Company;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
(h) shall not advise any person tendering Old Securities pursuant to
either Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old
Securities or New Securities.
15. You shall take such action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letters of Transmittal and the
Notices of Guaranteed Delivery (as defined in the Prospectus) or such other
forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offers, provided that such information
shall relate only to the procedures for accepting (or withdrawing from) the
Exchange Offers. The Company will furnish you with copies of such documents at
your request. All other requests for information relating to the Exchange Offer
shall be directed to the Company, Attention: Investor Relations.
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16. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Assistant Treasurer of the Company and such
other person or persons as it may request, daily (and more frequently during the
week immediately preceding the Expiration Date and if otherwise requested) up to
and including the Expiration Date, as to the number of Old Securities which have
been tendered pursuant to each Exchange Offer and the items received by you
pursuant to this Agreement, separately reporting and giving cumulative totals as
to items properly received and items improperly received. In addition, you will
also inform, and cooperate in making available to, the Company or any such other
person or persons upon oral request made from time to time prior to the
Expiration Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting by
you to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date of either Exchange Offer
the Company shall have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offers. You shall prepare a final list of
all persons whose tenders were accepted, the aggregate principal amount of Old
Securities tendered and the aggregate principal amount of Old Securities
accepted, and deliver said list to the Company. Upon receipt of said list, the
Company will promptly provide you with a calculation of the principal amount of
New Securities to be issued to each holder.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company.
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company, or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto.
20. You hereby acknowledge receipt of the Prospectus and each of the
Letters of Transmittal attached hereto and further acknowledge that you have
examined each of them. Any inconsistency between this Agreement, on the one
hand, and the Prospectus and the applicable Letter of Transmittal (as they may
be amended from time to time), on the other hand, shall be resolved in favor of
the latter two documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement.
21. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including reasonable attorneys' fees and expenses, arising out of or in
connection with any act, omission, delay or refusal made by you in reliance upon
any signature, endorsement, assignment, certificate, order, request, notice,
instruction or other instrument or document reasonably believed by you to be
valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Securities reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Securities; provided, however, that the Company shall
not be liable for indemnification or otherwise for any loss, liability, cost or
expense to the extent arising out of your gross negligence or willful
misconduct. In no case shall the Company be liable under this indemnity with
respect to any claim against you unless the Company shall be notified by you, by
letter or cable or by facsimile confirmed by letter, of the written assertion of
a claim against you or of any other action commenced against you, promptly after
you shall have received any such written assertion or commencement of action.
The Company shall be entitled to participate at its own expense in the defense
of any such claim or other action, and, if the Company so elects, the Company
shall assume the defense of any suit brought to enforce any such claim. In the
event that the Company shall assume the defense of any such suit, the Company
shall not be liable for the fees and expenses of any counsel thereafter incurred
by you so long as the Company shall retain counsel reasonably satisfactory to
you to defend such suit.
22. You shall arrange to comply with all requirements under the tax laws of
the United States, including those relating to missing Taxpayer Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required to deduct 31% on payments
to holders who
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have not supplied their correct Taxpayer Identification Number or required
certification. Such funds will be turned over to the Internal Revenue Service in
accordance with applicable regulations.
23. You shall deliver or cause to be delivered, in a timely manner to each
governmental authority to which any transfer taxes are payable in respect of the
exchange of Old Securities, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Securities; provided,
however, that you shall reimburse the Company for amounts refunded to you in
respect of your payment of any such transfer taxes, at such time as such refund
is received by you and, provided further, that if New Securities and/or
substitute Old Securities not exchanged are to be delivered to, or are to be
registered or issued in the name of, any person other than the registered holder
of the Old Securities tendered in the Exchange Offers, or if tendered Old Notes
are registered in the name of any person other than the person signing the
applicable Letter of Transmittal, or if a transfer tax is imposed for any reason
other than the transfer of Old Securities to the Company or its order pursuant
to the Exchange Offers, the amount of any such transfer taxes (whether imposed
on the registered holder or any other persons) will be payable by the tendering
holder and will not be reimbursed to you by the Company. In no event, however,
will the Exchange Agent be responsible for the payment of any applicable
transfer tax imposed for any reason other than the exchange of Old Securities.
24. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
ISP Holdings Inc.
c/o ISP Management Company, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President--Finance
If to the Exchange Agent:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee
Administration
29. Unless terminated earlier by the parties hereto, this Agreement shall
terminate after all obligations of the parties hereunder shall have been
fulfilled. Notwithstanding the foregoing, Paragraphs 19, 21 and 23 shall survive
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the termination of this Agreement. Upon any termination of this Agreement, you
shall promptly deliver to the Company any certificates for Securities, funds or
property then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
ISP HOLDINGS INC.
By: __________________________________
Name:
Title:
Accepted as the date
first above written:
THE BANK OF NEW YORK, as Exchange Agent
By: __________________________________
Name:
Title:
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SCHEDULE I
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