EXHIBIT 4.1
CONFORMED COPY
Dated May 16, 2001
▇▇▇▇▇▇ GRIESHEIM HOLDING AG
to
THE BANK OF NEW YORK,
as Trustee
--------------------------------------------
INDENTURE
E550,000,000
10.375% Senior Notes due June 1, 2011
--------------------------------------------
RECONCILIATION AND TIE BETWEEN THE TRUST INDENTURE ACT
OF 1939 AND THE INDENTURE, DATED AS OF MAY 16,2001
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
Section 310(a)(1) .......................................................... 609
(a)(2) .......................................................... 609
(a)(3) .......................................................... Not Applicable
(a)(4) .......................................................... Not Applicable
(b) .......................................................... 608
610
Section 311(a) .......................................................... 613
(b) .......................................................... 613
Section 312(a) .......................................................... 701
702(1)
(b) .......................................................... 702(2)
(c) .......................................................... 702(3)
Section 313(a) .......................................................... 703(1)
(b) .......................................................... 703(1)
(c) .......................................................... 703(1)
(d) .......................................................... 703(2)
Section 314(a) .......................................................... 704
(b) .......................................................... Not Applicable
(c)(1) .......................................................... 102
(c)(2) .......................................................... 102
(c)(3) .......................................................... Not Applicable
(d) .......................................................... Not Applicable
(e) .......................................................... 102
Section 315(a) .......................................................... 601
(b) .......................................................... 602
(c) .......................................................... 601
(d) .......................................................... 601
(e) ......................................................... 514
Section 316(a) .......................................................... 101
(a)(1)(A) .......................................................... 512
(a)(1)(B) .......................................................... 502(2), 513
(a)(2) .......................................................... Not Applicable
(b) .......................................................... 508
Section 317(a)(1) .......................................................... 503
(a)(2) .......................................................... 504
(b) .......................................................... 1003
Section 318(A) .......................................................... 107
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. DEFINITIONS..........................................................................................1
102. COMPLIANCE CERTIFICATES AND OPINIONS................................................................32
103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..............................................................33
104. ACTS OF HOLDERS; RECORD DATE........................................................................33
105. NOTICES, ETC., TO TRUSTEE AND COMPANY...............................................................34
106. NOTICE TO HOLDERS; WAIVER...........................................................................34
107. TRUST
INDENTURE ACT CONTROLS........................................................................35
108. EFFECT OF HEADINGS AND TABLE OF CONTENTS............................................................35
109. SUCCESSORS AND ASSIGNS..............................................................................35
110. SEVERABILITY CLAUSE.................................................................................35
111. BENEFITS OF
INDENTURE...............................................................................36
112. GOVERNING LAW.......................................................................................36
113. LEGAL HOLIDAYS......................................................................................36
114. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES..........................................................................................36
115. CONVERSION OF CURRENCY..............................................................................37
116. CURRENCY EQUIVALENT.................................................................................37
201. FORMS GENERALLY.....................................................................................38
202. FORM OF FACE OF GLOBAL NOTE.........................................................................38
203. FORM OF FACE OF CERTIFICATED NOTE...................................................................41
204. FORM OF REVERSE OF NOTE.............................................................................43
205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.....................................................47
301. TITLE AND TERMS.....................................................................................48
302. DENOMINATIONS.......................................................................................49
303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING......................................................49
304. TEMPORARY NOTES.....................................................................................50
305. TRANSFER AND EXCHANGE...............................................................................50
306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES.........................................................55
307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED......................................................55
308. PERSONS DEEMED OWNERS...............................................................................56
309. CANCELLATION........................................................................................56
310. COMPUTATION OF INTEREST.............................................................................57
311. COMMON CODE/ISIN NUMBERS............................................................................57
312. PRESCRIPTION........................................................................................57
401. SATISFACTION AND DISCHARGE OF
INDENTURE.............................................................57
402. APPLICATION OF TRUST MONEY..........................................................................58
501. EVENTS OF DEFAULT...................................................................................58
502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..................................................60
503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.....................................61
504. TRUSTEE MAY FILE PROOFS OF CLAIM....................................................................62
505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES..............................................62
506. APPLICATION OF MONEY COLLECTED......................................................................62
507. LIMITATION ON SUITS.................................................................................63
508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST...........................63
509. RESTORATION OF RIGHTS AND REMEDIES..................................................................63
510. RIGHTS AND REMEDIES CUMULATIVE......................................................................64
511. DELAY OR OMISSION NOT WAIVER........................................................................64
512. CONTROL BY HOLDERS..................................................................................64
513. WAIVER OF PAST DEFAULTS.............................................................................64
514. UNDERTAKING FOR COSTS...............................................................................64
515. WAIVER OF STAY OR EXTENSION LAWS....................................................................65
601. CERTAIN DUTIES AND RESPONSIBILITIES.................................................................65
602. NOTICE OF DEFAULTS..................................................................................66
603. CERTAIN RIGHTS OF TRUSTEE...........................................................................66
604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES...................................................67
605. MAY HOLD NOTES......................................................................................67
606. MONEY HELD IN TRUST.................................................................................67
607. COMPENSATION AND REIMBURSEMENT......................................................................67
608. DISQUALIFICATION; CONFLICTING INTERESTS.............................................................68
609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.............................................................68
610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...................................................69
611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..............................................................70
612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.........................................70
613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY...................................................70
614. APPOINTMENT OF AUTHENTICATING AGENT.................................................................70
615. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.............................................72
701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS...........................................73
702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS..............................................74
703. REPORTS BY TRUSTEE..................................................................................74
704. OFFICERS' CERTIFICATE WITH RESPECT TO CHANGE IN INTEREST RATES......................................74
801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.................................................74
802. SUCCESSOR SUBSTITUTED...............................................................................76
901. SUPPLEMENTAL
INDENTURES WITHOUT CONSENT OF HOLDERS..................................................76
902. SUPPLEMENTAL
INDENTURES WITH CONSENT OF HOLDERS.....................................................76
903. EXECUTION OF SUPPLEMENTAL INDENTURES................................................................78
904. EFFECT OF SUPPLEMENTAL INDENTURES...................................................................78
905. CONFORMITY WITH TRUST INDENTURE ACT.................................................................78
906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.......................................................78
1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST..........................................................78
1002. MAINTENANCE OF OFFICE OR AGENCY.....................................................................78
1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.........................................................79
1004. EXISTENCE...........................................................................................80
1005. MAINTENANCE OF PROPERTIES...........................................................................80
1006. PAYMENT OF TAXES AND OTHER CLAIMS...................................................................80
1007. MAINTENANCE OF INSURANCE............................................................................80
1008. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED SHARE CAPITAL AND
PREFERRED SHARES....................................................................................80
1009. LIMITATION ON RESTRICTED PAYMENTS AND INVESTMENTS...................................................84
1010. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES...........87
1011. LIMITATION ON LIENS.................................................................................89
1012. PERMITTED BUSINESS..................................................................................89
1013. LIMITATION ON TRANSACTIONS WITH AFFILIATES..........................................................89
1014. LIMITATION ON CERTAIN ASSET SALES; REPURCHASE AT THE OPTION OF HOLDERS WITH EXCESS PROCEEDS.........91
1015. CHANGE OF CONTROL...................................................................................93
1016. LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN ▇▇▇▇▇▇ GRIESHEIM AND MGI...................94
1017. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS...............................................94
1018. ADDITIONAL AMOUNTS; REDEMPTION FOR TAXATION REASONS.................................................95
1019. REPORTS.............................................................................................97
1020. STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES........................................98
1021. WAIVER OF CERTAIN COVENANTS.........................................................................98
1022. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES.............................................99
1023. LIMITATION ON SALE, PREPAYMENT OR MODIFICATION OF THE HIGH YIELD PROCEEDS LOAN AND THE HIGH YIELD
SUBORDINATION AGREEMENT............................................................................100
1101. RIGHT OF REDEMPTION................................................................................100
1102. APPLICABILITY OF ARTICLE...........................................................................100
1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE..............................................................100
1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.......................................................100
1105. NOTICE OF REDEMPTION...............................................................................101
1106. DEPOSIT OF REDEMPTION PRICE........................................................................101
1107. NOTES PAYABLE ON REDEMPTION DATE...................................................................102
1108. NOTES REDEEMED IN PART.............................................................................102
INDENTURE, dated as of May 16, 2001 between ▇▇▇▇▇▇ GRIESHEIM HOLDING AG, a stock
corporation organized under the laws of the Federal Republic of Germany, having
its principal executive office at Frankfurt Airport Center 1, C9; ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, and THE BANK OF
NEW YORK as trustee, paying agent,
registrar and transfer agent (the "TRUSTEE"), a
New York banking corporation
having its office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
RECITALS
A. The Company (as defined below) has duly authorized the creation of an
issue of its E550,000,000 10.375% Senior Notes due 2011 (the
"NOTES" and each a "NOTE"), and to provide therefor the Company has
duly authorized the execution and delivery of this Indenture. The Notes
consist of any of Original Notes, Exchange Notes or Additional Notes,
each as defined below. The Original Notes, Exchange Notes and
Additional Notes shall rank PARI PASSU with each other.
B. All things necessary to make the Notes, when executed by the Company
and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their
and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
101. DEFINITIONS
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP (whether or not such is
indicated herein);
(4) unless otherwise specifically set forth herein, all calculations or
determinations of a Person shall be performed or made on a consolidated
basis in accordance with GAAP;
(5) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(6) mentioning anything after "include", "includes" or "including" does not
limit what else might be included, and the use of "or" is not
exclusive;
2
(7) references herein to Sections or Annexes are references to Sections of
or Annexes to this Indenture;
(8) all references in this Indenture or the Notes to "interest" on a Note
shall, unless the context otherwise requires, be deemed to include any
Special Interest, if any, and Additional Amounts, if any, thereon; and
(9) whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this
Indenture have the following meanings:
"COMMISSION" means the Commission as defined herein;
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the indenture securities means the Company or any other
obligor (including any guarantor) in respect of the Notes. All other
Trust Indenture Act terms used in this Indenture that are defined by
the Trust Indenture Act, defined by Trust Indenture Act reference to
another statute or defined by Commission rule and not otherwise defined
herein have the meanings assigned to them therein.
"ACT", when used with respect to any Holder, has the meaning specified in
Section 104.
"ACQUIRED DEBT" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person
is merged or consolidated with or into such specified Person or a
Restricted Subsidiary of such specified Person, or at the time such
other Person became a Restricted Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging or consolidating with or
into, or becoming a Restricted Subsidiary of, such specified Person;
and
(2) Indebtedness assumed, or secured by a Lien encumbering any asset
acquired, by such specified Person.
Acquired Debt shall be deemed to be incurred at the time of such merger or
consolidation, on the date the acquired Person became a Restricted Subsidiary,
or at the time of such assumption or acquisition, as the case may be.
"ACQUISITION" means the ▇▇▇▇▇▇ Griesheim Acquisition and the China Acquisition.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 1018.
"ADDITIONAL NOTES" means Notes of the same series issued from time to time after
the Issue Date under the terms of this Indenture, subject to prior authorization
by a Board Resolution or Shareholders' Resolution (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 304, 305, 306, 906 or
1108), subject to compliance with the provisions of Section 1008 and Section 303
hereunder.
3
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For purposes of this definition, "CONTROL," as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; provided that beneficial ownership of 10% or more of the Voting
Shares of a Person will be deemed to be control; and the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH" will have correlative meanings.
"AFFILIATE TRANSACTION" has the meaning specified in Section 1013.
"ANCILLARY AGREEMENTS" means the Assignment Agreement, the High Yield Proceeds
Loan and the High Yield Subordination Agreement.
"APPLICABLE PROCEDURES" means, with respect to any transfer or transaction
involving a Global Note or beneficial interest therein, the rules and procedures
of any depository for such Note, Euroclear and Clearstream, in each case to the
extent applicable to such transaction and as in effect from time to time.
"APPLICABLE REDEMPTION PREMIUM" means, with respect to any Note on any
redemption date, the greater of:
(i) 1.0% of the principal amount of the Note; and
(ii) the excess of:
(x) the present value at such redemption date of the redemption
price of such Note at June 1, 2006 (such redemption price
being set forth in Section 204), plus all required interest
payments that would otherwise be due to be paid on such Note
during the period between the redemption date and June 1, 2006
excluding accrued but unpaid interest, computed using a
discount rate equal to the Bund Rate at such redemption date
plus 50 basis points, over
(y) the principal amount of the Note.
"ASSET SALE" means:
(1) the sale, lease, conveyance, assignment, transfer or other disposition
(or series of related sales, leases, conveyances, assignments,
transfers or other dispositions) of (i) Equity Interests in any of the
Company's Restricted Subsidiaries (other than directors' qualifying
shares), (ii) all or substantially all of the assets of any division or
line of business of the Company or any Restricted Subsidiary of the
Company, or (iii) any other assets of the Company or any Restricted
Subsidiary other than in the ordinary course of business of the Company
or such Restricted Subsidiary; provided, however, that any sale, lease,
conveyance, assignment, transfer or other disposition of any assets
pursuant to the Disposal Plan shall be deemed not to be in the ordinary
course of business for purposes of the foregoing clause (iii); and
(2) the issuance of Equity Interests by any of the Company's Restricted
Subsidiaries (other than directors' qualifying shares).
Notwithstanding the preceding, the following items will not be deemed
to be Asset Sales:
4
(1) any single transaction or series of related transactions that: (a)
involves assets having a fair market value of less than E1 million; or
(b) results in net proceeds to the Company and its Restricted
Subsidiaries of less than E1 million;
(2) transactions covered by Section 1015 and Section 801;
(3) any disposition of assets that have become surplus or obsolete or worn
out and which, in the reasonable judgment of the Company or the
Restricted Subsidiary making the disposition, are not required for the
efficient operation of the business of the Company and its Restricted
Subsidiaries taken as a whole;
(4) the sale of Cash Equivalents, Permitted Local Currency Investments, and
investment grade securities, in each case on arm's length terms;
(5) the sale of receivables pursuant to Permitted Discounting Facilities;
(6) a transfer of assets between or among the Company and its Restricted
Subsidiaries, an issuance of Equity Interests by a Restricted
Subsidiary to the Company, and an issuance of Equity Interests by a
Restricted Subsidiary (other than ▇▇▇▇▇▇ Griesheim) to a Wholly-Owned
Restricted Subsidiary of the Company;
(7) the granting of leases or licenses over property on arm's length terms,
where such property is not required to allow the continued operation of
the business of the Company and its Restricted Subsidiaries as a whole;
(8) a Permitted Holding Company Transfer;
(9) any assignment which is otherwise a Permitted Lien; and
(10) any Restricted Payment (including any Permitted Investment) not
prohibited by Section 1009.
"ASSET SALE OFFER" has the meaning given in Section 1014.
"ASSET SWAP" means the execution of a definitive agreement, subject only to
customary closing conditions that the Company in good faith believes will be
satisfied, for a substantially concurrent purchase and sale, or exchange of
assets used or usable by the Company or its Restricted Subsidiaries in a
Permitted Business between the Company or any of its Restricted Subsidiaries and
another Person or group of Persons; PROVIDED, HOWEVER, that any amendment to or
waiver of any closing condition that individually or in the aggregate is
material to the Asset Swap shall be deemed to be a new Asset Swap.
"ASSIGNMENT AGREEMENT" means the Assignment Agreement (SICHERUNGSABTRETUNG)
dated as of May 16, 2001 between the Company, as assignor, and the Trustee, as
assignee.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Notes.
"AUTHORIZED SIGNATORY" with respect to a company means a member of the Board of
Directors, the Chief Executive Officer, Secretary or Assistant Secretary of that
company.
"AVENTIS CHINA" means Aventis (China) Investment Co. Ltd.
5
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as such term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to have beneficial ownership
of all securities that such "person" has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence of a
subsequent condition, and "BENEFICIAL OWNERSHIP" has a correlative meaning.
"BOARD OF DIRECTORS" of a company means the board of directors of such company,
or in respect of a company organized under the laws of the Federal Republic of
Germany, the management board or supervisory board of such company.
"BOARD RESOLUTION" with respect to a company means a copy of a resolution
certified by a managing director or an Authorized Signatory of such company to
have been duly adopted by the Board of Directors of such company and to be in
full force and effect on the date of such certification.
"BUND RATE" means, with respect to any redemption date, the rate per annum equal
to the equivalent yield to maturity as of such redemption date of the Comparable
German Bund Issue, assuming a price for the Comparable German Bund Issue
(expressed as a percentage of its principal amount) equal to the Comparable
German Bund Price for such redemption date, where:
(1) "COMPARABLE GERMAN BUND ISSUE" means the German BUNDESANLEIHE security
selected by any Reference German Bund Dealer as having a fixed maturity
most nearly equal to the period from such redemption date to June 1,
2006, and that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
Euro denominated corporate debt securities in a principal amount
approximately equal to the then outstanding principal amount of the
Notes and of a maturity most nearly equal to June 1, 2006, PROVIDED,
HOWEVER, that if the period from such redemption date to June 1, 2006
is less than one year, a fixed maturity of one year shall be used;
(2) "COMPARABLE GERMAN BUND PRICE" means, with respect to any redemption
date, the average of the Reference German Bund Dealer Quotations for
such redemption date, after excluding the highest and lowest such
Reference German Bund Dealer Quotations, or if the Trustee obtains
fewer than four such Reference German Bund Dealer Quotations, the
average of all such quotations;
(3) "REFERENCE GERMAN BUND DEALER" means any dealer of German BUNDESANLEIHE
securities appointed by the Trustee in consultation with the Company;
and
(4) "REFERENCE GERMAN BUND DEALER QUOTATIONS" means, with respect to each
Reference German Bund Dealer and any redemption date, the average as
determined by the Trustee of the bid and offered prices for the
Comparable German Bund Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such
Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany time on
the third Business Day preceding such redemption date.
"BUSINESS COMBINATION AGREEMENT" means the business combination agreement dated
as of December 30/31, 2000 between MIG, ▇▇▇▇▇▇ Griesheim, ▇▇▇▇▇▇ Group, Hoechst
AG, and Hoechst Newco 3, setting out the terms of the Acquisition, together with
all schedules, exhibits and attachments to such agreement, as amended.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which banking institutions in the cities of
New York, London,
Luxembourg or Frankfurt are authorized or obligated by law or executive order to
close.
6
"CAPITAL LEASE OBLIGATION" means, with respect to a Person, at the time any
determination thereof is to be made, the amount of the liability in respect of
an agreement treated as a finance lease or a capital lease in accordance with
GAAP that would at that time be required to be capitalized on a balance sheet of
such Person in accordance with GAAP.
"CASH EQUIVALENTS" means:
(1) Deutsche Marks, euros, Swiss francs, pounds Sterling, and U.S. dollars;
(2) marketable direct obligations issued by or directly and unconditionally
fully guaranteed or insured by, (a) any of the United Kingdom, any
other Member State of the European Union as currently constituted other
than Greece, Switzerland or the United States, or (b) any other country
or state or political subdivision of the foregoing rated "A" or above
by Standard & Poor's or "A2" or above by Moody's, or (c) any agency or
instrumentality of the foregoing (provided that the full faith and
credit of the United Kingdom, any other Member State of the European
Union as currently constituted other than Greece, Switzerland or the
United States or such jurisdiction, respectively, is pledged in support
thereof), in each case having maturities of not more than one year
after the date of acquisition thereof;
(3) certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition, bankers' acceptances
with maturities not exceeding one year and overnight bank deposits, in
each case, having a rating of at least "P-1" from Moody's and "A-1"
from Standard & Poor's;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3)
above entered into with any commercial bank organized under the laws of
any member of the European Union or Switzerland or the United States
(or any state thereof or the District of Columbia) and having at the
date of acquisition thereof combined capital and surplus of not less
than E500 million;
(5) commercial paper having a rating of at least "P-1" from Moody's and
"A-1" from Standard & Poor's and in each case having maturities of not
more than one year after the date of creation thereof;
(6) corporate debt with a rating of "A" or higher from Standard & Poor's or
"A2" or higher from Moody's; and
(7) investments in money market funds that invest at least 95% of their
assets in Cash Equivalents of the kinds described in clauses (1)
through (5) of this definition.
"CENTRAL AMERICAN ENTITIES" means the following entities: ▇▇▇▇▇▇ Griesheim de
Mexico S.A. de C.V.; ▇▇▇▇▇▇ de El Salvador S.A. de C.V.; ▇▇▇▇▇▇ de Centroamerica
S.A.; Carbox S.A.; Servigil S.A.; ▇▇▇▇▇▇ de Nicaragua S.A.; Carbox de Nicaragua
S.A.; ▇▇▇▇▇▇ de Honduras S.A. de C.V.; Compania de Productos Atmosfericos S.A.
de C.V.; Gases Industriales S.A. de C.V.; Coxgas S.A. de C.V.; Carbox S.A.
Honduras; and Greenbelt Holdings Ltd.
"CENTRAL AMERICAN ENTITY DISPOSALS" means asset sales which are disposals by
▇▇▇▇▇▇ Griesheim or any Restricted Subsidiary of ▇▇▇▇▇▇ Griesheim of its shares
in a Central American Entity or a disposal by a Central American Entity of
substantially all of its assets to MIG or a person designated by MIG.
"CERTIFICATED NOTE" means any Note substantially in the form set forth in
Sections 203 and 204 hereof issued in accordance with Section 305.
7
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) the sale, transfer, conveyance or other disposition (whether or not by
way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Subsidiaries taken as a whole to any "person" (as such term is
used in Section 13(d)(3) of the Exchange Act) or Group other than a
Person (the "TRANSFEREE") with respect to which:
(a) before the initial Public Equity Offering, either (i) the
Sponsors' combined direct and indirect percentage Beneficial
Ownership of such Transferee's ordinary Share Capital is less
than 50% of the Sponsors' combined direct and indirect
percentage Beneficial Ownership of the Company's ordinary
Share Capital on the Issue Date or (ii) the Sponsors' combined
direct and indirect Beneficial Ownership of such Transferee's
ordinary Share Capital is less than the Beneficial Ownership
of such Transferee's ordinary Share Capital of any other
Person (other than MIG or Affiliates of MIG); or
(b) after the initial Public Equity Offering, any Person or Group
(other than the Sponsors) is the Beneficial Owner, directly or
indirectly, of shares representing more than 35% of the
aggregate ordinary voting power represented by the issued and
outstanding Share Capital of the Transferee and the ownership
of such Person or Group exceeds that of the Sponsors
collectively in such Transferee;
(2) before the initial Public Equity Offering, either (a) the Sponsors'
combined direct and indirect Beneficial Ownership of the Company's
ordinary Share Capital is less than 50% of the Sponsors' combined
direct and indirect Beneficial Ownership of the Company's ordinary
Share Capital on the Issue Date or (b) the Sponsors' combined direct
and indirect Beneficial Ownership of the Company's ordinary Share
Capital is less than the Beneficial Ownership of the Company's ordinary
Share Capital of any other Person (other than MIG or Affiliates of
MIG);
(3) after the initial Public Equity Offering, any Person or Group (other
than the Sponsors) will become the Beneficial Owner, directly or
indirectly, of shares representing more than 35% of the aggregate
ordinary voting power represented by the issued and outstanding Share
Capital of any Holding Company or the Company and the ownership of such
Person or Group will exceed that of the Sponsors collectively; or
(4) after the initial Public Equity Offering, the first day on which a
majority of the members of the Board of Directors of the Company are
not Continuing Directors of the Company or the first day on which a
majority of the members of the Board of Directors of any Holding
Company are not Continuing Directors of such Holding Company.
Notwithstanding the foregoing, if the Company ceases to control the Company as a
result of, and on the terms of, the transactions expressly contemplated by the
Business Combination Agreement relating to the transfer of 66 2/3% of the shares
in the Company to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇, for a period no longer than 90 days, then
during such 90 day period a Change of Control shall not be deemed to have
occurred solely by virtue of such transfer, and if such period extends beyond
such 90 days then a Change of Control shall be deemed to have occurred on the
91st day.
"CHANGE OF CONTROL OFFER" has the meaning specified in Section 1015.
"CHANGE OF CONTROL PAYMENT" has the meaning specified in Section 1015.
"CHANGE OF CONTROL PAYMENT DATE" has the meaning specified in Section 1015.
8
"CHINA ACQUISITION" means the acquisition by ▇▇▇▇▇▇ Griesheim and/or one or more
Subsidiaries of ▇▇▇▇▇▇ Griesheim of the ACIC Gas Interests (as defined in the
Business Combination Agreement) and certain other assets of Aventis China from
Aventis China pursuant to the terms of the Business Combination Agreement and
the China SPA (as defined therein).
"CLEARSTREAM" means Clearstream Banking, SOCIETE ANONYME, Luxembourg.
"COMMISSION" means the United States Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON DEPOSITARY" means The Bank of
New York or its nominee, or a successor or
assignee.
"COMPANY" means ▇▇▇▇▇▇ Griesheim Holding AG until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture and
thereafter "Company" shall mean such successor Person.
"COMPANY REQUEST" means a written request or order signed in the name of the
Company by any member of its management board and delivered to the Trustee.
"CONSOLIDATED CASH FLOW" means, with respect to any Person for any period, the
sum (without duplication) of (i) the Consolidated Net Income of such Person for
such period plus (ii) the following, in each case to the extent deducted in
calculating such Consolidated Net Income:
(1) the provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period (other than income or
profits taxes attributable to extraordinary, nonrecurring or
exceptional gains or losses or taxes attributable to any Asset Sale or
any abandonments or reserves relating thereto);
(2) the Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period; and
(3) the Consolidated Non-Cash Charges of such Person and its Restricted
Subsidiaries for such period;
and, in each case, without duplication and on a consolidated basis and
determined in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for any
period, the sum (without duplication) of:
(i) the aggregate of the interest expense of such Person and its Restricted
Subsidiaries determined on a consolidated basis in accordance with
GAAP, whether paid or accrued and whether or not capitalized,
including, without limitation, (a) any amortization of debt issuance
costs and original issue discount and any amortization or write-off of
deferred financing costs, (b) non-cash interest payments, (c) the net
costs under Hedging Obligations, (d) commissions, discounts and other
fees and charges incurred in respect of letter of credit or bankers'
acceptance financings and (e) the interest component of any deferred
payment obligations but, excluding, however, the accrual of interest on
Permitted Holding Company Subordinated Debt (for so long as such debt
qualifies as Permitted Holding Company Subordinated Debt), but only to
the extent satisfied by the issue to the holders thereof of further
fungible Permitted Holding Company Subordinated Debt, capitalized to
the principal thereof, or otherwise not paid in cash;
(ii) the interest component of all payments associated with Capital Lease
Obligations; and
9
(iii) 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;
PROVIDED, that (x) the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a PRO FORMA basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period, (B) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of the Company, a fixed or floating rate of interest,
may be computed by applying, at the option of the Company, either the fixed or
floating rate, and (C) notwithstanding clause (A) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by Interest Rate Swaps, shall be deemed to accrue at the rate PER ANNUM
resulting after giving effect to such agreements; and (y) in making such
computation, the Consolidated Interest Expense attributable to interest on any
Indebtedness under a revolving credit facility computed on a PRO FORMA basis
shall be computed based upon the average daily balance of such Indebtedness
during the period.
"CONSOLIDATED NET INCOME" means, with respect to any specified Person for any
period, the aggregate of the net income (net loss) of such Person and its
Restricted Subsidiaries, on a consolidated basis determined in accordance with
GAAP; provided, however, that there shall be excluded therefrom, without
duplication:
(1) any gain (or loss), together with any related provision for taxes on
such gain (or loss), realized in connection with Asset Sale or any
abandonments or reserves relating thereto; in each case to the extent
such gains (and losses) were included in the calculation of such net
income (loss);
(2) any item classified as an extraordinary, non-recurring or exceptional
gain (or any item classified as an extraordinary, non-recurring or
exceptional loss), together with any related provision for taxes on
such extraordinary, non-recurring or exceptional gain (or loss); in
each case to the extent such gains (and losses) were included in the
calculation of such net income (loss);
(3) the net income of any Person that is not a Restricted Subsidiary of the
specified Person, except to the extent of the amount of dividends or
distributions paid in cash to the specified Person or a Restricted
Subsidiary thereof;
(4) the net loss of any Person that is not a Restricted Subsidiary of the
specified Person, except to the extent that such loss has been funded
with cash from the specified Person or a Restricted Subsidiary thereof;
(5) the net income (but not loss) of any Restricted Subsidiary 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 Restricted Subsidiary, except to the extent of cash
dividends or distributions paid or permitted to be paid, directly or
indirectly, by loans, advances, intercompany transfers or otherwise
(for so long as so permitted) to the referent Person or to a Restricted
Subsidiary of the referent Person by such Person (subject, in the case
of such a dividend or distribution to another Restricted Subsidiary, to
the limitation in this clause); provided, however, that solely for
purposes of calculating the Fixed Charge Coverage Ratio of the Company
and for making Investments, any determination as to the exclusion of
net income of a Restricted Subsidiary pursuant to this clause (5) shall
not give effect to any Permitted Bank Encumbrance;
10
(6) the net income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition;
(7) the cumulative effect of a change in accounting principles;
(8) any restoration to income of any contingency reserve of an
extraordinary, non-recurring or exceptional nature, except to the
extent that provision for such reserve was made out of Consolidated Net
Income accrued in any period for which Consolidated Net Income is
required to be calculated for purposes of this Indenture;
(9) for purposes of Section 1009, in the case of a successor to the
specified Person by consolidation or merger or as a transferee of the
specified Person's assets, any earnings of the successor corporation
prior to such consolidation, merger or transfer of assets; and
(10) amortization of debt issuance costs incurred in connection with the
financings of the Acquisition and other related fees and expenses, and
in connection with the issuance of the Notes.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to any Person for any
period, the aggregate depreciation, amortization (excluding amortization of
prepaid cash expenses that were paid in a prior period) and other non-cash
expenses (excluding any such non-cash expense to the extent that it represents
an accrual of or reserve for cash expenses in any future period) and non-cash
charges of such Person and its Restricted Subsidiaries for such period, but net
of any non-cash items increasing the Consolidated Net Income of such Person for
such period.
"CONTINUING DIRECTORS" means, with respect to a company, as of any date of
determination, any member of the Board of Directors of such company who:
(1) was a member of such Board of Directors on the Issue Date;
(2) was nominated for election or elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were members
of such Board at the time of such nomination or election; or
(3) is a representative of a Sponsor.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee at which at
any time its corporate trust business shall be administered, which office at the
date hereof is located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, Attention:
Corporate Trust Department (telephone: ▇▇-▇▇▇-▇▇▇-▇▇▇▇, fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇),
or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Company).
"DEEMED INVESTMENT" has the meaning specified in Section 1022.
"DEFAULT" means any event that is, or with the passage of time or the giving of
notice or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFERRED PURCHASE OBLIGATION" has the meaning specified in Section 1014.
"DESIGNATION" and "DESIGNATION AMOUNT" have the meaning specified in Section
1022.
11
"DISPOSAL INVESTMENTS" means, in relation to a disposal of the shares or assets
of an entity, the amount (if any) of additional investment made by ▇▇▇▇▇▇
Griesheim or any of its Subsidiaries in the entity whose shares or assets have
been disposed of, where such additional investment was made after April 30,
2001.
"DISPOSAL PLAN" means the disposal program pursuant to which it is intended that
the shares in certain members of ▇▇▇▇▇▇ Group, certain unconsolidated
subsidiaries of ▇▇▇▇▇▇ Griesheim (as specified in Schedule 12 (Disposal Plan) of
the Mezzanine Facility Agreement entered into on April 28, 2001 among ▇▇▇▇▇▇
Group, ▇▇▇▇▇▇▇ ▇▇▇▇▇ International as Global Co-Ordinator and the other parties
named therein (the "MEZZANINE FACILITY") and/or the whole or substantially the
whole of the assets of such companies and certain minority interests and assets
(as specified in Schedule 12 (Disposal Plan) of the Mezzanine Facility) of the
▇▇▇▇▇▇ Group and such unconsolidated subsidiaries of ▇▇▇▇▇▇ Griesheim will be
sold after the Closing Date.
"DISQUALIFIED SHARE CAPITAL" means any Share Capital that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder thereof), or upon the
happening of any event, matures (excluding any maturity as the result of an
optional redemption by the Company thereof) 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. Notwithstanding the preceding sentence, (i) only the portion of
Share Capital which so matures or is mandatorily redeemable or is so redeemable
at the sole option of the holder thereof prior to such date shall be deemed
Disqualified Share Capital and (ii) any Share Capital that would constitute
Disqualified Share Capital solely because the holders thereof have the right to
require the Company to repurchase such Share Capital upon the occurrence of a
change of control or an asset sale will not constitute Disqualified Share
Capital.
"ELIGIBLE INDEBTEDNESS" means any Indebtedness other than:
(1) Indebtedness in the form of, or represented by, bonds or other similar
securities or any Guarantee of any such Indebtedness; and
(2) Indebtedness that is, or may be, quoted, listed or purchased and sold
on any stock exchange, automated trading system or over-the-counter or
other securities market (including the market for securities eligible
for resale pursuant to Rule 144A under the Securities Act).
"ELIGIBLE PREFERRED SHARES" means Preferred Shares other than:
(1) Preferred Shares which constitute Disqualified Share Capital; and
(2) Preferred Shares that are, or may be, quoted, listed or purchased and
sold on any stock exchange, automated trading system or
over-the-counter or other securities market (including the market for
securities eligible for resale pursuant to Rule 144A under the
Securities Act).
"EQUITY INTERESTS" means Share Capital, Permitted Holding Company Subordinated
Debt (for so long as such debt qualifies as Permitted Holding Company
Subordinated Debt), all warrants, options or other rights to purchase or acquire
Share Capital or Permitted Holding Company Subordinated Debt (but excluding any
debt security that is convertible into, or exchangeable for, Share Capital or
Permitted Holding Company Subordinated Debt other than Permitted Holding Company
Subordinated Debt convertible into, or exchangeable for, Share Capital).
12
"EURO" and "E" means the single currency introduced at the start of the
third stage of economic and monetary union pursuant to the Treaty establishing
the European Community, as amended by the Treaty on European Union.
"EUROCLEAR" means Euroclear Bank S.A./N.V.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCESS FACILITY II AMOUNT" means, at the time of determination, the aggregate
amount by which Total Non-Indemnified Unconsolidated Debt has theretofore been
permanently reduced by reason of the expiry of a Guarantee or indemnity given by
▇▇▇▇▇▇ Griesheim or its Restricted Subsidiaries which is not to be renewed or as
a result of the disposal of ▇▇▇▇▇▇ Griesheim's or its Restricted Subsidiaries'
interest in a joint venture or unconsolidated Subsidiary or by payment of a sum
under such a Guarantee or indemnity by ▇▇▇▇▇▇ Griesheim or a Restricted
Subsidiary of ▇▇▇▇▇▇ Griesheim or otherwise but not by reason of a payment from
the proceeds of a Revolving Facility II Loan or under a letter of credit or bank
guarantee issued under Revolving Facility II; provided that the foregoing
reduction of Total Non-Indemnified Unconsolidated Debt has not been used to
permit any previous application towards the general working capital requirements
of ▇▇▇▇▇▇ Griesheim and its Restricted Subsidiaries and the aggregate amount of
(A) the amount to be borrowed and (B) the face amount of such guarantee or
letter of credit to be issued which are to be so applied is equal to or less
than the total amount of such reduction.
"EXCESS PROCEEDS" has the meaning specified in Section 1014.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as amended.
"EXCHANGE NOTES" means the notes of the Company to be issued under this
Indenture in exchange for, and in an aggregate principal amount at maturity
equal to, the Original Notes or Additional Notes, as applicable, in compliance
with the terms of the Registration Rights Agreement.
"EXCHANGE OFFER" has the meaning specified in the form of the face of either the
Global Note set forth in Section 202 or the Certificated Note set forth in
Section 203.
"EXCHANGE REGISTRATION STATEMENT" has the meaning specified in the form of the
face of either the Global Note set forth in Section 202 or the Certificated Note
set forth in Section 203.
"EXISTING INDEBTEDNESS" means the Indebtedness of the Company and its Restricted
Subsidiaries in existence at the time of issuance of the Notes (excluding
amounts outstanding under or in respect of the Senior Facilities), until such
amounts are repaid.
"EXPIRATION DATE" has the meaning specified in the definition of "Offer to
Purchase".
"FINAL PAYMENT DEFAULT" has the meaning specified in Section 501.
"FIXED CHARGES" means, with respect to any Person for any period, the sum,
without duplication, of:
(1) the Consolidated Interest Expense of such Person and its Restricted
Subsidiaries for such period; plus
(2) the product of (a) all dividend payments, whether or not in cash, on
any series of Preferred Shares of such Person or on any Disqualified
Share Capital of such Person or any of its Restricted Subsidiaries,
made during such period other than dividend payments or accruals on
Equity Interests payable solely in Equity Interests of the Company
(other than Disqualified Share Capital) or to the Company or a
Restricted Subsidiary of the Company, times (b) a fraction, the
numerator of which
13
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.
"FIXED CHARGE COVERAGE RATIO" means with respect to any specified Person as of
any date of determination, the ratio of (i) the Consolidated Cash Flow of such
Person and its Restricted Subsidiaries for the most recently ended four full
fiscal quarters of such Person for which financial statements are available and
ending on or prior to the date of determination to (ii) the Fixed Charges of
such Person for such four quarter period. In the event that the specified Person
or any of its Restricted Subsidiaries incurs, assumes, Guarantees or redeems any
Indebtedness (other than revolving credit borrowings) or issues or redeems
Preferred Shares 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 will be
calculated giving pro forma effect to such incurrence, assumption, Guarantee or
redemption of Indebtedness, or such issuance or redemption of Preferred Shares,
as if the same had occurred at the beginning of the applicable four-quarter
reference period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) Investments in Restricted Subsidiaries and acquisitions that have been
made by the specified Person or any of its Restricted Subsidiaries,
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 will in each case be given effect on a pro forma basis assuming
that all such Investments in Restricted Subsidiaries and acquisitions,
mergers and consolidations and related financings, and the reduction or
increase of any associated fixed charge obligations and the change in
Consolidated Cash Flow resulting therefrom, including as a result of
cost savings considered in the reasoned judgment of the Chief Financial
Officer of the Company as probable to be realized (but only to the
extent that such cost savings and other calculations could then be
reflected in pro forma financial statements under GAAP and Regulation
S-X under the Securities Act and the rules and regulations promulgated
by the Commission thereunder) had occurred on the first day of the
four-quarter reference period, and Consolidated Cash Flow for such
reference period will be calculated without giving effect to clause (6)
of the proviso set forth in the definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued operations as
determined in accordance with GAAP on or prior to the Calculation Date,
and the Consolidated Cash Flow attributable to operations or businesses
disposed of prior to the Calculation Date, will be excluded, and the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to
the Calculation Date, will be excluded (but only to the extent that the
obligations giving rise to such Fixed Charges will not be obligations
of the specified Person or any of its Restricted Subsidiaries following
the Calculation Date), in each case on a pro forma basis assuming that
all such discontinued operations and disposals, and the reduction of
any associated fixed charge obligations and the change in Consolidated
Cash Flow resulting therefrom, including as a result of cost savings
considered in the reasoned judgment of the Chief Financial Officer of
the Company as probable to be realized (but only to the extent that
such cost savings and other calculations could then be reflected in pro
forma financial statements under GAAP and Regulation S-X under the
Securities Act and the rules and regulations promulgated by the
Commission thereunder) had occurred on the first day of the
four-quarter reference period; and
(3) if since the beginning of the applicable four-quarter reference period
any Person (that subsequently became a Restricted Subsidiary or was
merged or consolidated with or into Company or any Restricted
Subsidiary since the beginning of such period) shall have made any
Investment in a Restricted Subsidiary or any acquisition, merger or
consolidation or related financings, or determined
14
a discontinued operation or disposed of operations or businesses, that
would have required adjustment pursuant to this definition, then the
Fixed Charge Coverage Ratio shall be calculated giving pro forma effect
thereto for such period as if such Investment or acquisition, merger or
consolidation or related financings or discontinued operations or
disposals had occurred at the beginning of the applicable reference
period.
For purposes of this definition, whenever PRO FORMA effect is to be given to a
transaction, the PRO FORMA calculations shall be made in good faith by a
responsible financial or accounting officer of the Company. If any Indebtedness
to which PRO FORMA effect is given bears interest at a floating rate, the
interest expense on such Indebtedness shall be calculated as if the rate in
effect on the Calculation Date had been the applicable interest rate for the
entire period (taking into account any interest rate agreement in effect on the
Calculation Date). Interest on a Capital Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by a responsible financial or
accounting office of the Company to be the rate of interest implicit in such
Capital Lease Obligations in accordance with GAAP. Interest on Indebtedness that
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a Eurocurrency interbank offered rate, or other rate, shall be
deemed to have been based upon the rate actually chosen, or, if none, then based
upon such optional rate chosen as the Company may designate.
"GAAP" means the International Accounting Standards of the International
Accounting Standards Committee (or, if the Company makes the election described
below, generally accepted accounting principles in the United States ("U.S.
GAAP")) as in effect from time to time, and which are consistent with the
accounting principles and practices then applied by the Company, and any
variation to such accounting principles and practices which is not material. At
any time after the Issue Date, the Company may elect to apply for all purposes
of this Indenture, in lieu of International Accounting Standards, U.S. GAAP;
provided, that (i) any such election once made shall be irrevocable, (ii) all
financial statements and reports required to be provided, after such election,
pursuant to this Indenture shall be prepared on the basis of U.S. GAAP and (iii)
from and after such election, all ratios, computations and other determinations
based on GAAP contained in this Indenture shall be computed in conformity with
U.S. GAAP, with retroactive effect being given thereto assuming that such
election had been made on the Issue Date.
"GERMAN GOVERNMENT EURO OBLIGATIONS" means debt securities issued or directly
and fully guaranteed or insured by the government of The Federal Republic of
Germany or any agency or instrumentality thereof (provided that the full faith
and credit of The Federal Republic of Germany is pledged in support thereof)
which are denominated in euros and which are otherwise payable upon maturity and
upon any earlier redemption thereof in euros.
"GLOBAL NOTE" means a Note evidencing all or a part of all the Notes
substantially in the form set forth in Sections 202 and 204 hereof.
"GROUP" means a "group" for purposes of Section 13(d) of the Exchange Act.
"GUARANTEE" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness. "GUARANTEE" or "GUARANTEED"
when used as a verb shall have a correlative meaning.
"HEDGING OBLIGATIONS" means, with respect to any Person, the obligations of such
Person under:
(1) interest rate swap, cap, collar, future, option or other interest rate
hedge or arrangement or other agreements or arrangements designed to
protect such Person against fluctuations in interest rates;
15
(2) any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect the Company or any of its
Restricted Subsidiaries against fluctuations in currency values; or
(3) any commodity futures contract, commodity option or other similar
agreement or arrangement entered into by the Company or any of its
Restricted Subsidiaries designed to protect the Company or any of its
Restricted Subsidiaries against fluctuations in the price of
commodities actually used in the ordinary course of business of the
Company and its Restricted Subsidiaries.
"HIGH YIELD PROCEEDS LOAN AGREEMENT" means the loan agreement, dated on or about
the date of this Indenture, between the Company, as lender, and ▇▇▇▇▇▇
Griesheim, as borrower, which governs the terms of the intercompany loan made by
the Company to ▇▇▇▇▇▇ Griesheim with the proceeds of the issue of the originally
issued Notes by the Company.
"HIGH YIELD SUBORDINATION AGREEMENT" means the subordination agreement, dated on
or about the date of this Indenture, between ▇▇▇▇▇▇ Griesheim and the Company
relating to the subordination of any loans made pursuant to the High Yield
Proceeds Loan Agreement to the Obligations under the Senior Facilities and
amounts outstanding under the Hedging Agreements (as defined therein).
"HOECHST NEWCO 3" means DIOGENES Zwanzigste Vermogensverwaltungs GmbH, being a
newly incorporated German limited liability company registered with the
commercial register of Frankfurt am Main under HR B48032 which is a wholly owned
Subsidiary of Hoechst AG.
"HOLDER" means the person in whose name a Note is registered in the books of the
registrar for the Notes.
"HOLDING COMPANY" means ▇▇▇▇▇▇ Group and any other Person which owns, directly
or indirectly, 100% of the voting securities of the Company (other than
directors' qualifying shares).
"HOLDING OPERATING COMPANY" has the meaning specified in the definition of
Permitted Holding Operating Company Transfer.
"INCUR" means, with respect to any Indebtedness or other obligation of any
Person, to directly or indirectly create, issue, incur (by conversion, exchange
or otherwise), assume, Guarantee or otherwise become directly or indirectly
liable, conditionally or otherwise, in respect of such Indebtedness or other
obligation including by acquisition of Subsidiaries or the recording, as
required pursuant to GAAP or otherwise, of any such Indebtedness or other
obligation on the balance sheet of such Person (and "INCURRENCE", "INCURRED",
"INCURRABLE" and "INCURRING" shall have meanings correlative to the foregoing).
"INDEBTEDNESS" means, with respect to any specified Person, whether or not
contingent,
(1) the principal of indebtedness of such Person in respect of borrowed
money;
(2) the principal of indebtedness of such Person evidenced by bonds, notes,
debentures, loan stock or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) the obligations of such Person in respect of banker's acceptances;
(4) all Capital Lease Obligations of such Person;
(5) all obligations of such Person for the deferred and unpaid balance of
the purchase price of any property, except any such balance that
constitutes an accrued expense or trade payable; and
16
(6) all Hedging Obligations of such Person;
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of any other Person secured by a Lien
on any asset or property of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) (the amount of such
Indebtedness being deemed to be the lesser of the value of such property or
asset or the amount of the Indebtedness so secured) and, to the extent not
otherwise included, the Guarantee by such Person of any indebtedness of any
other Person, and excludes Permitted Holding Company Subordinated Debt (but
subject to the second proviso of the definition thereof providing for the deemed
incurrence of Indebtedness should such debt cease to qualify as Permitted
Holding Company Subordinated Debt).
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value thereof, in the case of any Indebtedness issued with
original issue discount; and
(2) the principal amount thereof, together with any interest thereon that
is more than 30 days past due, in the case of any other Indebtedness.
"INDEMNIFIED UNCONSOLIDATED DEBT" means, at any time, the aggregate amount of
Unconsolidated Debt to the extent to which the member of the MGG (as defined in
the Senior Facilities) providing the Unconsolidated Debt is fully indemnified at
such time by the Hoechst AG and/or Aventis pursuant to the provisions of section
11.1 (HOECHST UNDERTAKINGS) and/or section 11.2 (AVENTIS GUARANTEE) of the
Singapore Separation Agreement.
"INDENTURE" means this agreement, as amended, modified or supplemented from time
to time.
"INITIAL PURCHASERS" means the several purchasers listed in Schedule I to the
Purchase Agreement.
"INITIAL REGULATION S NOTES" means the Notes sold by the Initial Purchasers in
the initial offering contemplated by the Purchase Agreement in reliance on
Regulation S.
"INSOLVENCY LAW" means any law applicable to the bankruptcy or insolvency of a
Person or the relief of debtors generally and, with respect to a German company,
means in particular the INSOLVENZORDNUNG, as amended from time to time, and any
successor thereto.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of interest
on the Notes.
"ISIN" means International Securities Identification Number.
"ISSUE DATE" means the date of original issuance of the Notes issued under this
Indenture.
"INVESTMENTS" means, with respect to any Person, all investments by such Person
in other Persons (including Affiliates) in the forms of direct or indirect loans
(including Guarantees of Indebtedness or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration (including, without limitation, in connection
with the sale, liquidation, repayment, repurchase or redemption of another
Investment) of Indebtedness, Equity Interests or other securities, together with
all items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Equity Interests 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 will be deemed to have made
17
an Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of, as determined in good faith by the Board of Directors of the
Company.
"JUDGMENT CURRENCY" has the meaning specified in Section 115.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest, assignment 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, any
lease in the nature thereof, and any option or other agreement to sell or give a
security interest.
"▇▇▇▇▇▇ GRIESHEIM" means ▇▇▇▇▇▇ Griesheim GmbH.
"▇▇▇▇▇▇ GRIESHEIM ACQUISITION" means the acquisition by ▇▇▇▇▇▇ Group of the
issued share capital of the Company pursuant to the terms of the Business
Combination Agreement.
"▇▇▇▇▇▇ GROUP" means ▇▇▇▇▇▇▇▇ Verwaltungsgesellschaft mbH (which is anticipated
to have its name changed to ▇▇▇▇▇▇ Griesheim Group GmbH), the direct parent
company of the Company on the Issue Date.
"▇▇▇▇▇▇ SINGAPORE" means ▇▇▇▇▇▇ Singapore Pte. Limited, a company incorporated
in Singapore and which is a direct wholly-owned Subsidiary of ▇▇▇▇▇▇ Griesheim.
"MGI" means ▇▇▇▇▇▇ Griesheim Industries, Inc.
"MIG" means Messer Industrie GmbH.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. or any successor to the rating
agency business thereof.
"NET PROCEEDS" means the aggregate cash proceeds in the form of cash or Cash
Equivalents (including payments in respect of deferred payment obligations when
received in the form of cash or Cash Equivalents) received by the Company or any
of its 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), minus the aggregate amount (without
duplication) of (i) the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees, and sales
commissions, recording fees, title insurance premiums, appraisers fees, and
costs reasonably incurred in preparation of any asset or property for sale or
for the delivery thereof; (ii) any income, capital gains or other Taxes incurred
and required to be paid or reasonably estimated to be payable by the Company or
any of its Restricted Subsidiaries in connection with (a) such Asset Sale or (b)
the remittance or transfer of all or any of such proceeds to the Company or a
Restricted Subsidiary of the Company in order to enable any such proceeds to be
utilized in prepayment of the Senior Facilities pursuant to the requirements of
Clause 9.5 (ASSET DISPOSALS) of the Senior Facilities, in each case as
reasonably determined in good faith by the Company or such Restricted Subsidiary
on the basis of the existing tax rates applicable to the gain (if any) and after
taking into account all available credits, deductions and allowances connected
with such disposal; (iii) all distributions and other payments required to be
made to any Person owning, or any minority interest holder in Subsidiaries or
joint ventures indirectly owning, a beneficial interest in the assets which are
the subject of such Asset Sale; (iv) any reserves established in accordance with
GAAP for adjustments in respect of the sales price of the asset or assets
subject to such Asset Sale or for any liability associated with such Asset Sale:
PROVIDED, HOWEVER, that if such reserves are released, any amounts deducted
pursuant to this clause (iv) shall be added back; (v) repayment of Indebtedness
secured by assets subject to such Asset Sale; and (vi) Disposal Investments made
in connection with such Asset Sale; PROVIDED, HOWEVER, that if the instrument or
agreement governing such Asset Sale requires the transferor to maintain a
portion of the purchase price in escrow (whether as a reserve for
18
adjustment of the purchase price or otherwise) or to indemnify the transferee
for specified liabilities in a maximum specified amount, the portion of the cash
or Cash Equivalents that is actually placed in escrow or segregated and set
aside by the transferor for such indemnification obligation shall not be deemed
to be Net Proceeds until the escrow terminates or the transferor ceases to
segregate and set aside such funds, in whole or in part, and then only to the
extent of the proceeds released from escrow to the transferor or that are no
longer segregated and set aside by the transferor.
"NON-INDEMNIFIED UNCONSOLIDATED DEBT" means, at any time, Unconsolidated Debt
which is not Indemnified Unconsolidated Debt at such time.
"NON-STRATEGIC DISPOSALS" means disposals which, pursuant to section 14
(APPROVAL OF BUDGETS AND BUSINESS PLAN BY SHAREHOLDERS' COMMITTEE) of the
Shareholders Agreement among MIG and the Financial Investors named therein dated
December 31, 2000, either do not require the consent of an affirmative vote of
75% or more of the shareholders of a Holding Company or to which MIG is
obligated to consent.
"NOTE REGISTER" and "NOTE REGISTRAR" have the respective meanings specified in
Section 305.
"NOTES" has the meaning specified in the first paragraph of the Recitals.
"OBLIGATIONS" means any principal, interest, penalties, fees, expenses,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFER" has the meaning specified in the definition of Offer to Purchase.
"OFFER TO PURCHASE" means a written offer (the "OFFER") sent by the Company to
each Holder in accordance with Section 106 on the date of the Offer offering to
purchase up to the principal amount of Notes specified in such Offer at the
purchase price specified in such Offer (as determined pursuant to this
Indenture). Unless otherwise required by applicable law, the Offer shall specify
an expiration date (the "EXPIRATION DATE") of the Offer to Purchase which shall
be, subject to any contrary requirements of applicable law, not less than 30
days or more than 60 days after the date of such Offer and a settlement date
(the "PURCHASE DATE") for purchase of Notes within five Business Days after the
Expiration Date. The Company shall notify the Trustee in writing at least 15
Business Days (or such shorter period as is acceptable to the Trustee) before
the mailing of the Offer of the Company's obligation to make an Offer to
Purchase, and the Offer shall be mailed by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The Offer
shall contain such information as may be required by applicable law to be
included therein. The Offer shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Offer to
Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to Purchase
is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes offered to be
purchased by the Company pursuant to the Offer to Purchase (including,
if less than 100%, the manner by which such amount has been determined
pursuant to the Section hereof requiring the Offer to Purchase) (the
"PURCHASE AMOUNT");
(4) the purchase price to be paid by the Company for each E1,000
aggregate principal amount of Notes accepted for payment (as specified
pursuant to this Indenture) (the "PURCHASE PRICE");
19
(5) that the Holder may tender all or any portion of the Notes registered
in the name of such Holder and that any portion of a Note tendered must
be tendered in an integral multiple of E1,000 principal amount;
(6) the place or places where Notes are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Note not tendered or tendered but not purchased by
the Company pursuant to the Offer to Purchase will continue to accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Note being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the Offer to
Purchase will be required to surrender such Note at the place or places
specified in the Offer before the close of business on the Expiration
Date (such Note being, if the Company or the Trustee so requires, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing);
(10) that (a) if Notes in an aggregate principal amount less than or equal
to the Purchase Amount are duly tendered and not withdrawn pursuant to
the Offer to Purchase, the Company shall purchase all such Notes and
(b) if Notes in an aggregate principal amount in excess of the Purchase
Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Notes having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Notes in
denominations of E1,000 or integral multiples thereof shall be
purchased); and
(11) that in case of any Holder whose Note is purchased only in part, the
Company shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Note without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased
portion of the Note so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a certificate signed
by any of: the Chief Executive Officer, Chief Financial Officer, Head of
Corporate Finance and Accounting, President, Director or member of its
management board.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel for
the Company, which shall be delivered to the Trustee.
"ORIGINAL NOTES" means Notes that are not Exchange Notes or Additional Notes.
"OUTSTANDING", when used with respect to Notes, means, as of the date of
determination, all Notes previously authenticated and delivered under this
Indenture, EXCEPT:
(1) Notes previously cancelled by the Trustee or any Paying Agent or
delivered to the Trustee or any Paying Agent for cancellation;
(2) Notes for whose payment or redemption money in the necessary amount has
been previously deposited with the Trustee or any Paying Agent in trust
for the Holders of such Notes; PROVIDED
20
that, if such Notes are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(3) Notes which have been paid pursuant to this Indenture or in exchange
for or in lieu of which other Notes have been authenticated and
delivered pursuant to Section 306, other than any such Notes in respect
of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Notes which a Responsible Officer of the Trustee knows to be so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the principal
of (and premium, if any) or interest on any Notes on behalf of the Company.
"PERMITTED BANK ENCUMBRANCES" means any restriction on the declaration or
payment of dividends or similar distributions, to the extent permitted to exist
pursuant to clause (1), (4) (to the extent such agreement or instrument
described in such clause (4) governs Indebtedness permitted to be incurred under
this Indenture) or (5) of the second paragraph of Section 1010 or pursuant to
any agreement renewing, replacing, substituting or amending any such encumbrance
or restriction referred to in such clauses (1), (4) (to the extent such
agreement or instrument described in such clause (4) governs Indebtedness
permitted to be incurred under this Indenture) or (5), provided that such
agreement is otherwise permitted under this Indenture and the terms of such
agreement renewing, replacing, substituting or amending such encumbrance or
restriction are no less favorable to the Holders of Notes in any material
respect than the terms of the encumbrance or restriction being so renewed,
replaced, substituted or amended.
"PERMITTED BUSINESS" means businesses of the general nature of the businesses of
the Company and its Restricted Subsidiaries conducted on the Issue Date and
businesses ancillary or reasonably related or complementary thereto.
"PERMITTED DEBT" has the meaning specified in Section 1008.
"PERMITTED DISCOUNTING FACILITIES" means one or more facilities with a bank or
other financial institution pursuant to which the Company or any of its
Restricted Subsidiaries sell receivables owing to them on customary arms-length
market terms in return for a payment in cash by the bank or financial
institution to the Company or such Restricted Subsidiary of an amount at least
equal to 85% of the face amount of the receivables so sold.
"PERMITTED HOLDING COMPANY SUBORDINATED DEBT" means subordinated debt of the
Company issued to and held by any Holding Company provided that:
(1) such debt by its contractual terms as explicitly expressed therein (a)
does not (including upon the happening of any event) mature and is not
(including upon the happening of any event) mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the
21
holder thereof, in whole or in part, and does not include any provision
requiring repurchase by the Company or any of its Restricted
Subsidiaries (including upon the happening of any event) prior to the
date on which the Notes mature, (b) does not (including upon the
happening of any event) require or provide for the payment, in cash or
otherwise, of interest or any other amounts prior to its final Stated
Maturity (provided that interest may accrete while such subordinated
debt is outstanding and accreted interest may become due upon
acceleration of maturity as permitted by clause (c) and any interest
may be satisfied at any time by the issue to the holders thereof of
additional Permitted Holding Company Subordinated Debt), (c) does not
provide (including upon the happening of any event) for the
acceleration of its maturity (other than following the winding up or
bankruptcy of the Company, but only if the maturity of the Notes has
been accelerated) or the exercise of rights or remedies prior to the
date on which the Notes mature and all Obligations under the Notes and
this Indenture are repaid in full in cash, (d) is not secured by a Lien
on any assets of the Company or any of its Subsidiaries and is not
Guaranteed by any Subsidiary, (e) is not transferable by the holder
thereof except to the Company, (f) does not (including upon the
happening of any event) restrict the payment of amounts due in respect
of the Notes or compliance by the Company with its obligations under
the Notes and this Indenture, (g) does not (including upon the
happening of any event) constitute Voting Shares and (h) is not
(including upon the happening of any event) mandatorily convertible or
exchangeable, or convertible or exchangeable at the option of the
holder, in whole or in part, prior to the date on which the Notes
mature other than into or for Equity Interests (other than Disqualified
Share Capital); and
(2) such debt is contractually subordinated (pursuant to a binding
agreement between the holder of such subordinated debt and the Trustee
for the benefit of the Holders) and junior in right of payment to the
prior payment in full in cash of all Obligations (including principal,
interest, premium (if any) and Additional Amounts (if any)) of the
Company under the Notes and this Indenture such that (a) the Company
shall make no payment in respect of such subordinated debt (whether in
cash, securities or otherwise, except as permitted by clause 1(b)
above) and may not acquire such subordinated debt except as permitted
by this Indenture, (b) any payment (whether principal, interest or
otherwise) which would be due but cannot be paid by reason of any such
restrictions shall be deferred (EINREDE DER STUNDUNG) until the first
date thereafter on which such payment is not so restricted, (c) upon
any total or partial liquidation, dissolution or winding up of the
Company or in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property, the Holders
will be entitled to receive payment in full in cash of all Obligations
under the Notes and this Indenture before the holders of such
subordinated debt will be entitled to receive any payment or
distribution in respect of such subordinated debt, (d) such
subordinated debt may not be amended or modified, and the subordination
thereof may not be rescinded or waived, such that it would cease to
qualify as Permitted Holding Company Subordinated Debt, without the
prior written consent of the Trustee (which consent may be withheld for
any or for no reason), at any time prior to the time that all
Obligations under the Notes and this Indenture are repaid in full in
cash and (e) the holders of such subordinated debt shall assign to the
Trustee any and all rights it may have to vote, including by way of
proxy, in any bankruptcy, reorganization, receivership, insolvency,
liquidation or similar proceeding in respect of the Company or its
property; and
PROVIDED, HOWEVER, that any sale or transfer of such subordinated debt to any
Person other than a Holding Company or the Company, and any event or
circumstance that results in such subordinated debt being held by any Person
other than a Holding Company or the Company or otherwise ceasing to meet any of
the criteria to qualify as Permitted Holding Company Subordinated Debt set forth
above (other than upon exchange, conversion or refinancing into Equity Interests
of the Company), shall, in each case (i) be deemed to be an incurrence of
Indebtedness by the Company at the time of sale or transfer or the occurrence of
such event or circumstance, as the case may be, and (ii) reduce the amount
referred to in clause (3)(b) of the first paragraph of the covenant under
Section 1009, retroactive to the date of original incurrence of such
Indebtedness; and in such case each Restricted Payment made on or after the date
of the original incurrence of such Indebtedness
22
shall be deemed not to have been permitted under this Indenture unless such
Restricted Payment would have been permitted under the covenant described under
Section 1009 at a given time on or after the date of the original incurrence of
such Indebtedness, and on or prior to such sale or transfer or the occurrence of
such event or circumstance, as the case may, and after giving such retroactive
effect to such reduction referred to in clause (ii) of this proviso. In
determining compliance with the foregoing, the Company may designate such given
time with respect to each such Restricted Payment in any manner in its
discretion, provided that only one such designation may be made in respect of
each Restricted Payment and each such designation shall give pro forma effect to
all other Restricted Payments having been designated as being made prior in time
to such Restricted Payment.
"PERMITTED HOLDING OPERATING COMPANY TRANSFER" means any sale or transfer to a
Holding Company (or a Subsidiary of a Holding Company) of the shares in a
Restricted Subsidiary of the Company (thereafter referred to herein as a
"HOLDING OPERATING COMPANY") for fair value; provided that (a) the Consolidated
Cash Flow of such Restricted Subsidiary for the most recently ended four full
fiscal quarters of such Restricted Subsidiary for which financial statements are
available and ending on or prior to the date of such sale or transfer, when
aggregated with the Consolidated Cash Flow of each other Holding Operating
Company whose shares were so sold or transferred hereunder (in each case as
determined pursuant to this clause at the time of the sale or transfer of the
shares in such Holding Operating Company, and without giving effect to
subsequent changes in such Consolidated Cash Flow), does not exceed E10
million and (b) the consolidated total assets of such Restricted Subsidiary
(determined as at the date of such sale or transfer), when aggregated with the
consolidated total assets of each other Holding Operating Company whose shares
were so sold or transferred hereunder (in each case as determined pursuant to
this clause as at the time of the sale or transfer of the shares in such Holding
Operating Company, and without giving effect to subsequent changes in the amount
of such consolidated total assets), does not exceed E50 million (in each
case, determined in accordance with GAAP).
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Company by any Restricted Subsidiary of the
Company, provided that any Indebtedness evidencing such Investment is
unsecured and subordinated, pursuant to a written agreement, to the
Company's obligations under the Notes;
(2) any Investment by the Company or any Restricted Subsidiary of the
Company in any Restricted Subsidiary of the Company or in a Person, if
as a result of such Investment (a) such Person becomes a Restricted
Subsidiary of the Company or (b) such Person is merged, consolidated or
amalgamated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Company or a Restricted
Subsidiary of the Company;
(3) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in
compliance with Section 1014; and Disposal Investments made in
connection with Asset Sales;
(4) any Investment in Cash Equivalents or in Permitted Local Currency
Investments;
(5) any Investment made solely in exchange for the issuance of Equity
Interests (other than Disqualified Share Capital) of the Company;
(6) receivables owing to the Company or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade
terms as the Company or any such Restricted Subsidiary deems reasonable
under the circumstances;
23
(7) any Investment in a Person where such Investment is acquired by the
Company or any of its Restricted Subsidiaries (i) in exchange for
another Investment in such Person held by the Company or any such
Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the Company
of or obligor under such other Investment or (ii) as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries of any
Lien which secured such Investment or other transfer of title with
respect to such secured Investment in connection with a default
thereunder;
(8) Investments in securities, stocks or similar obligations of trade
creditors or customers received in settlement of obligations or
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of, or in satisfaction of judgments against,
such trade creditors or customers;
(9) loans or advances to, or Guarantees of loans to, employees of the
Company or any Restricted Subsidiary of the Company for purposes of
purchasing the Company's or any Holding Company's Share Capital; and
other loans and advances to employees of the Company or any Restricted
Subsidiary of the Company made in the ordinary course of business of
the Company or such Restricted Subsidiary and Guarantees of such loans
made in the ordinary course of business;
(10) Investments in Hedging Obligations;
(11) Investments (i) outstanding on the Issue Date, (ii) made pursuant to
commitments outstanding, and as in effect, on the Issue Date,
including, without limitation, loans by ▇▇▇▇▇▇ Griesheim to Singapore
SPV in order to satisfy its obligations pursuant to the provisions of
section 4.2 (MAKING OF SHAREHOLDER LOANS) of the Singapore Separation
Agreement provided that (a) such loans are repayable by Singapore SPV
on the terms and conditions specified in the Singapore Separation
Agreement and (b) the aggregate amount of all such loans does not
exceed at any time DM 180 million (or its equivalent) less the Hoechst
Closing Amount (as defined in section 4.5 of the Singapore Separation
Agreement), and (iii) made in connection with one or more Permitted
Holding Operating Company Transfer provided that the aggregate amount
of such Investments under this clause (iii) does not exceed E 5
million (or its equivalent);
(12) any Strategic Investment, provided that (A) the amount of such
Investment, when aggregated with the amount (measured on the date each
such Investment was made and without giving effect to subsequent
changes in value) of all other Investments comprising Strategic
Investments made pursuant to this clause (12) after the Issue Date,
does not exceed (B) the sum of (i) the amount, calculated at the time
such Strategic Investment is made, equal to the greater of (a) E75
million and (b) 5.0% of the total consolidated tangible assets of the
Company and its Restricted Subsidiaries at the time such Investment is
made plus (ii) 100% of the net cash proceeds, if any, received by the
Company at the time of or concurrently with such Strategic Investment
as a contribution to its common equity capital or from a sale by the
Company of its common equity, provided that the amount of such net cash
proceeds will be excluded from clause (3)(b) of the first paragraph of
Section 1009 plus (iii) if any Strategic Investments made pursuant to
this clause (12) are sold for cash or otherwise liquidated or repaid,
repurchased or redeemed for cash, the amount equal to the lesser of (a)
the aggregate initial amounts of such Investments (in each case
measured on the respective dates such Investments were made and without
giving effect to any subsequent changes in value) and (b) the aggregate
amount received by the Company or its Restricted Subsidiaries upon such
sales, liquidations, repayments, repurchases or redemptions plus (iv)
to the extent that Strategic Investments in Persons are made after the
Issue Date pursuant to this clause (12) and such Persons subsequently
become Restricted Subsidiaries of the Company, the amount equal to the
lesser of (a) the aggregate amount of such Strategic Investments (in
each case measured on the respective dates such Strategic Investments
were made and without giving effect to subsequent changes in value) and
(b) the
24
aggregate amount of such Strategic Investments owned by the Company or
its Restricted Subsidiaries at the respective times such Persons become
Restricted Subsidiaries of the Company (in each case measured as the
fair market value of such Investments at the respective times each such
Person became a Restricted Subsidiary of the Company); and
(13) so long as no Default or Event of Default shall have occurred and be
continuing (or result therefrom), any other Investment in any Person
provided that (A) the amount of such Investment, when aggregated with
the amount (measured on the date each such Investment was made and
without giving effect to subsequent changes in value) of all other
Investments made pursuant to this clause (13) after the Issue Date,
does not exceed (B) the sum of (i) E10 million plus (ii) if any
Investments made pursuant to this clause (13) are sold for cash or
otherwise liquidated or repaid, repurchased or redeemed for cash, the
amount equal to the lesser of (a) the aggregate amounts of such
Investments (in each case measured on the respective dates such
Investments were made and without giving effect to any subsequent
changes in value) and (b) the aggregate amount received by the Company
or its Restricted Subsidiaries upon such sales, liquidations,
repayments, repurchases or redemptions plus (iii) to the extent that
Investments in Persons are made after the Issue Date pursuant to this
clause (13) and such Persons subsequently become Restricted
Subsidiaries of the Company, the amount equal to the lesser of (a) the
aggregate amount of such Investments (in each case measured on the
respective dates such Investments were made and without giving effect
to subsequent changes in value) and (b) the aggregate amount of such
Investments in such Persons owned by the Company or its Restricted
Subsidiaries at the respective times such Persons become Restricted
Subsidiaries of the Company (in each case measured as the fair market
value of such Investments at the respective times each such Person
became a Restricted Subsidiary of the Company).
"PERMITTED LIENS" means:
(1) Liens existing on the Issue Date;
(2) Liens on the assets of the Company and its Restricted Subsidiaries
securing Indebtedness and other Obligations under the Senior
Facilities that were permitted by the terms of this Indenture to be
incurred;
(3) Liens in favor of the Company or a Restricted Subsidiary of the
Company;
(4) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Company or any Restricted
Subsidiary of the Company; PROVIDED that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not
extend to any assets other than those of the Person merged into or
consolidated with the Company or the Restricted Subsidiary;
(5) Liens on 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;
(6) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(7) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (5) of the second paragraph of Section 1008
covering only the assets acquired with such Indebtedness;
25
(8) 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 promptly instituted and diligently concluded,
PROVIDED that any reserve or other appropriate provision as will be
required in conformity with GAAP shall have been made therefor;
(9) Liens created for the benefit of the Notes;
(10) Liens imposed by law or arising by operation of law, including, without
limitation, landlords' mechanics', carriers' warehousemen's,
materialmen's, suppliers' and vendors' Liens, Liens for master's and
crew's wages and other similar maritime Liens and mechanics' Liens, in
each case which are incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserves or other appropriate provisions, if any, as shall be required
by GAAP shall have been made with respect thereto;
(11) Liens to secure any extension, renewal, refinancing or refunding (or
successive extensions, renewals, refinancings or refundings), in whole
or in part, of any Indebtedness secured by Liens referred to in the
foregoing clauses (1), (4) and (5) of this definition, provided that
such (i) Liens do not extend to any property or assets of the Company
or any Restricted Subsidiary of the Company other than the property and
assets that were subject to the Lien securing such Indebtedness and
(ii) the amount of such Indebtedness so secured by such Lien is not
increased;
(12) judgment Liens not giving rise to an Event of Default so long as such
Lien is adequately bonded and any appropriate legal proceedings that
may have been initiated for the review of such judgment, decree or
order shall not have been finally terminated or the period within which
such proceedings may be initiated shall not have expired;
(13) Liens upon specific items of inventory or other goods and proceeds of
any person securing such person's obligations in respect of banker's
acceptances issued or credited for the account of such person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(14) Liens securing reimbursement obligations with respect to commercial
letters of credit which encumber documents and other property relating
to such letters of credit and products and proceeds thereof;
(15) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(16) Liens arising out of consignment or similar arrangements for the sale
of goods in the ordinary course of business;
(17) any interest or title of a lessor in the property subject to any lease
other than a capital lease;
(18) leases or subleases granted to others that do not materially interfere
with the ordinary course of business of the Company and its Restricted
Subsidiaries;
(19) Liens encumbering property or other assets under construction arising
from progress or partial payments by a customer of the Company or its
Restricted Subsidiaries relating to such property or other assets;
26
(20) Liens arising from filing Uniform Commercial Code financing statements
regarding leases, provided that such Liens do not extent to any
property or assets which are not leased property subject to such leases
or subleases;
(21) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the
importation of goods;
(22) zoning restrictions, easements, license, covenants, reservations,
restrictions on the use of real property and defects, irregularities
and deficiencies in title to real property that do not, individually or
in the aggregate, materially affect the ability of the Company or any
Restricted Subsidiary to conduct its business and are incurred in the
ordinary course of business;
(23) Liens incurred or pledges and deposits made in the ordinary course of
business in connection with workers' compensation and unemployment
insurance and other types of social security;
(24) Liens securing Hedging Obligations so long as such Hedging Obligations
relate to Indebtedness that is, and is permitted to be under this
Indenture, secured by a Lien on the same property securing such Hedging
Obligations; and
(25) Liens securing Eligible Indebtedness that was permitted by the terms of
this Indenture to be incurred.
"PERMITTED LOCAL CURRENCY INVESTMENTS" means Investments in:
(1) cash in currencies other than those specified in clause (1) of the
definition of Cash Equivalents and held by a Restricted Subsidiary of
the Company, but only to the extent such cash (i) is in the currency of
a jurisdiction in which such Restricted Subsidiary operates or conducts
its business or (ii) was generated in the ordinary course of business
of such Restricted Subsidiaries or (iii) is necessary for working
capital purposes of such Restricted Subsidiary or (iv) represents cash
consideration received by such Restricted Subsidiary from an Asset Sale
that was made pursuant to and in compliance with Section 1014 or from a
liquidation or redemption of an Investment made pursuant to and in
compliance with clause (2) below or (v) is, in the judgment of
management of such Restricted Subsidiary, held for a valid business
reason (including, but not limited to, cash management or applicable
law); and
(2) Investments made by a Restricted Subsidiary of the Company with cash
otherwise permitted to be held by such Restricted Subsidiary under
clause (1) above in (a) marketable direct obligations of, or
obligations fully and unconditionally guaranteed by, the sovereign
nation (or any agency thereof) in which such Restricted Subsidiary is
organized or of which such cash is its legal tender, (b) securities of
the type and maturity described in clauses (3) through (6) of the
definition of Cash Equivalents of foreign obligors organized under the
laws of such nation, which securities have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies
or (c) securities of the type and maturity described in clauses (3)
through (6) the definition of Cash Equivalents of foreign obligors
organized under the laws of such nation, which securities or obligors
are not rated as provided in such clauses but which are, in the
reasonable judgment of the Company, comparable in investment quality to
such securities (or, if such securities of such comparable quality are
not then available for purchase at the time of such Investment,
securities of such foreign obligors of the highest investment quality
which is then reasonably available for purchase at the time of such
Investment).
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the Company or
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace,
27
defease or refund other Indebtedness of the Company or any of its Restricted
Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount
of (or accreted value, if applicable), plus accrued interest on, the
Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of reasonable expenses incurred in connection
therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date no
earlier than the final 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;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness is subordinated in right of
payment to the Notes on 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; and
(4) such Indebtedness is incurred by the Company if the Company is the
obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.
"PERSON" means an individual, partnership, limited partnership, company,
corporation, limited liability company, joint stock company, joint venture,
association, trust, business trust, unincorporated organization, or a government
or agency or political subdivision thereof.
"PREDECESSOR NOTE" of any particular Note means every previous Note evidencing
all or a portion of the same debt as that evidenced by such particular Note;
and, for the purposes of this definition, any Note authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Note shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Note.
"PREFERRED SHARES" of any Person means any Share Capital of such Person that has
any rights which are preferential to the rights of any other Share Capital of
such Person with respect to dividends or redemptions or upon liquidation.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering of
ordinary or common Share Capital of the Company or any Holding Company (to the
extent net proceeds thereof are contributed to the Share Capital (other than
Disqualified Share Capital) of the Company within 90 days of such offering) and
from which the Company receives at least E50 million in aggregate gross
proceeds and such Share Capital of the Company or such Holding Company the
subject of such offering either:
(1) is listed or traded on a nationally recognized stock exchange or
automated quotation system in the United States, Germany or any other
Member State in the European Union (as it exists on the Issue Date), or
(2) has been distributed by means of an effective registration statement
under the Securities Act.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of May 11, 2001,
among the Company and the Initial Purchasers, as such agreement may be amended
from time to time.
"PURCHASE AMOUNT" has the meaning specified in the definition of Offer to
Purchase.
28
"PURCHASE DATE" has the meaning specified in the definition of Offer to
Purchase.
"PURCHASE PRICE" has the meaning specified in the definition of Offer to
Purchase.
"RECEIVING ENTITY" has the meaning specified in Section 801.
"REDEMPTION DATE", when used with respect to any Note to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Note to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.
"REDESIGNATION" has the meaning specified in Section 1022.
"REGISTRATION DEFAULT" has the meaning set forth in Section 202 or Section 203.
"REGISTRATION DEFAULT PERIOD" has the meaning set forth in Section 202 or
Section 203.
"REGISTRATION RIGHTS AGREEMENT" means, with respect to the Original Notes, the
Exchange and Registration Rights Agreement dated the date of this Indenture
among the Company and the Initial Purchasers, and with respect to any Additional
Notes, a registration rights agreement related to such Additional Notes that is
substantially identical to the Exchange and Registration Rights Agreement dated
the date of this Indenture among the Company and the Initial Purchasers.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
means May 15 or November 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date.
"REGULATION S" means Regulation S under the Securities Act (or any successor
provision), as it may be amended from time to time.
"REGULATION S CERTIFICATE" means a certificate substantially in the form set
forth in Annex A.
"REGULATION S GLOBAL NOTE" has the meaning specified in Section 201.
"REGULATION S LEGEND" means a legend substantially in the form of the legend
required in the forms set forth in Section 202 and Section 203 to be placed upon
a Regulation S Global Note.
"REGULATION S NON-GLOBAL NOTE" has the meaning specified in Section 305(b)(iv).
"REGULATION S NOTES" means all Notes required pursuant to Section 305(c) to bear
a Regulation S Legend. Such term includes a Regulation S Global Note.
"RELEVANT DATE" has the meaning specified in Section 1018.
"REPLACEMENT ASSETS" has the meaning specified in Section 1014.
"RESALE REGISTRATION STATEMENT" means a registration statement under the
Securities Act registering the Notes for resale pursuant to the terms of the
Registration Rights Agreement.
29
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means any vice
president, any assistant vice president, any senior trust officer or assistant
trust officer, any trust officer, or any other officer associated with the
corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"RESTRICTED GLOBAL NOTE" means any Global Note required pursuant to Section
305(c) to bear a Restricted Notes Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted Investment.
"RESTRICTED NON-GLOBAL NOTE" has the meaning specified in Section 305(b)(iii).
"RESTRICTED NOTE" means all Notes required pursuant to Section 305(c) to bear a
Restricted Notes Legend. Such term includes a Restricted Global Note.
"RESTRICTED NOTES CERTIFICATE" means a certificate substantially in the form set
forth in Annex B.
"RESTRICTED NOTES LEGEND" means a legend substantially in the form set forth in
Section 202 and Section 203 to be placed upon a Restricted Note.
"RESTRICTED PAYMENTS" has the meaning specified in Section 1009.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of the referent Person
that is not an Unrestricted Subsidiary.
"REVOLVING FACILITY II LOAN" means a loan made or to be made under the Revolving
Facility II, as such term is defined in the Senior Facilities.
"RULE 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"RULE 144A NOTES" means all Notes initially distributed in connection with the
offering of the Notes by the Initial Purchasers through their selling agent in
reliance upon Rule 144A, each of which will be in the form of a Restricted Note.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SECURITIES ACT LEGEND" means a Restricted Notes Legend or Regulation S Legend.
"SENIOR DISPOSAL BASKET" means any disposal(s) on arm's length terms, provided
that the aggregate consideration received for such disposal(s) (both cash and
non-cash, including the amount of Indebtedness (other than Hedging Obligations)
assumed by the purchaser or remaining in the assets disposed of or (if the
disposal relates to a disposal of less than the whole of the issued shares of a
person) the relevant proportion of such Indebtedness) (i) is no greater than
E50 million (or its equivalent in another currency or currencies) in any
calendar year, and (ii) from the Issue Date is no greater than E250 million
(or its equivalent in another currency or currencies).
"SENIOR FACILITIES" means the term loan and revolving credit facilities under
the Facilities Agreement, dated on or about April 28, 2001, between, among
others, ▇▇▇▇▇▇ Group, ▇▇▇▇▇▇▇ Sachs International, as global
30
co-ordinator, and the financial institutions party thereto, together with the
related documents thereto (including, without limitation, any guarantee
agreements and security documents), in each case as the same may from time to
time be amended (including any amendment and restatement thereof), supplemented
or otherwise modified from time to time, including any agreement extending the
maturity of, refinancing, replacing or otherwise restructuring (including by way
of adding Restricted Subsidiaries as additional guarantors or borrowers
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent,
lender or group of lenders (or the institutions).
"SHARE CAPITAL" means:
(1) in the case of a corporation, corporate stock and shares;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock and shares;
(3) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); and
(4) 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.
"SHAREHOLDERS' RESOLUTION" with respect to a company means a copy of a
resolution certified by the Authorized Signatory of that company to have been
duly adopted by a shareholder assembly of that company and to be in full force
and effect on the date of certification.
"SINGAPORE SEPARATION AGREEMENT" means the formation, funding and shareholders
agreement to be made between, amongst others, ▇▇▇▇▇▇ Griesheim, Hoechst AG, MIG,
Singapore SPV, the Company and Aventis in relation to (amongst other things) the
sale by ▇▇▇▇▇▇ Griesheim to Singapore SPV of all of ▇▇▇▇▇▇ Griesheim's shares in
Syngas and ▇▇▇▇▇▇ Singapore.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any Restricted
Subsidiary that would be a "significant subsidiary" as defined in Article I,
Rule 1-03 of Regulation S-X under the Securities Act, as such rule is in effect
on the Issue Date, but replacing in such definition the 10% test threshold with
a 3% test threshold. Notwithstanding the foregoing, for all purposes of this
Indenture, each of ▇▇▇▇▇▇ Griesheim and MGI shall be deemed to be a "Significant
Subsidiary".
"SINGAPORE SPV" means DIOGENES Neunzehnte Vermogensverwaltungs GmbH, a limited
liability company in which, pursuant to the terms of the Singapore Separation
Agreement, ▇▇▇▇▇▇ Griesheim will be a shareholder and which will hold the
interest in ▇▇▇▇▇▇ Singapore and Syngas held by ▇▇▇▇▇▇ Griesheim at the signing
of the Senior Facilities existing on the Issue Date.
"SPECIAL INTEREST" has the meaning given to it in the Registration Rights
Agreement.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"SPECIFIED ASSET SALES" means Asset Sales which are (i) disposals of assets
under the Disposal Plan, (ii) disposals of assets which are Non-strategic
Disposals or (iii) disposals of assets under the Senior Disposal Basket.
31
"SPONSORS" means Allianz Capital Partners GmbH, GS Capital Partners 2000, L.P.,
GS Capital Partners 2000 Employee Fund, L.P., GS Capital Partners 2000 Offshore,
L.P., GS Capital Partners 2000 GmbH & Co ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, L.P. and Bridge Street Special Opportunities Fund 2000, L.P., together
with all equity funds and investment funds managed, advised or operated by any
such Person, and their respective Affiliates or any Affiliate of The ▇▇▇▇▇▇▇
▇▇▇▇▇ Group, Inc.
"STANDARD & POOR'S" means Standard & Poor's, a division of The McGraw Hill
Companies, Inc., or any successor to the rating agency business thereof.
"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, and will 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.
"STEP-DOWN DATE" has the meaning set forth in the form of face of the Global
Note contained in Section 202 or the Certificated Note in Section 203.
"STEP-UP" has the meaning set forth in the form of face of the Global Note
contained in Section 202 or the Certificated Note in Section 203.
"STRATEGIC INVESTMENT" means an Investment by the Company or a Restricted
Subsidiary in another Person or Persons (including an Unrestricted Subsidiary),
provided that such other Person or Persons, taken together, shall be engaged
primarily in a Permitted Business.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Share Capital 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 that Person (or a combination
thereof); and
(2) 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 of such Person (or any combination thereof).
"SUCCESSOR NOTE" of any particular Note means every Note issued after, and
evidencing all or a portion of the same debt as that evidenced by, such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"SYNGAS" means Singapore Syngas Pte. Limited, a company incorporated in
Singapore.
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System.
"TAXES" means taxes, duties, assessments or other governmental charges of
whatever nature, including penalties, interest and any other liabilities related
thereto.
"TOTAL NON-INDEMNIFIED UNCONSOLIDATED DEBT" means, at any time, the aggregate
amount (without double counting) of Unconsolidated Debt at that time which is
not Indemnified Unconsolidated Debt at such time.
32
"TRUST INDENTURE ACT" means the U.S. Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed; PROVIDED, HOWEVER, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"UNCONSOLIDATED DEBT" means any Indebtedness of ▇▇▇▇▇▇ Griesheim or its
Restricted Subsidiaries under any Guarantee or indemnity given by any of ▇▇▇▇▇▇
Griesheim or its Restricted Subsidiaries in respect of Indebtedness of a Person
who is not a Restricted Subsidiary of ▇▇▇▇▇▇ Griesheim.
"UNRESTRICTED NOTES CERTIFICATE" means a certificate substantially in the form
set forth in Annex C.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Company (and any
Subsidiary of such Subsidiary) that is designated by the Board of Directors as
an Unrestricted Subsidiary in accordance with Section 1022.
"VENDOR" means Hoechst AG.
"VOTING SHARES" of any Person as of any date means the Share Capital of such
Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any Indebtedness at
any date, the number of years obtained by dividing: (a) the sum of the products
obtained by multiplying (i) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (ii) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment; by (b) the then principal amount of such
Indebtedness.
"WHOLLY OWNED RESTRICTED SUBSIDIARY" of a Person means a Restricted Subsidiary
100% of the voting securities of which (other than directors' qualifying shares)
is owned, directly or indirectly, by the Company.
102. COMPLIANCE CERTIFICATES AND OPINIONS
Upon any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall promptly furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act or as may be requested by the Trustee. Each such certificate or
opinion shall be given in the form of an Officers' Certificate, if to be given
by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, shall be in form and substance satisfactory to the Trustee and shall
comply with the requirements of the Trust Indenture Act and any other
requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(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;
33
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is reasonably necessary to enable
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, in the opinion of each such individual, such
condition or covenant has been complied with.
103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE
In any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as
it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
104. ACTS OF HOLDERS; RECORD DATE
Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are actually received by the Trustee and, where it is hereby
expressly required, by the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "ACT" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The Company may, in the circumstances permitted by the Trust Indenture Act, fix
any day as the record date for the purpose of determining the Holders of Notes
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
34
permitted to be given or taken by such Holders. If not set by the Company before
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, before such vote, the record date for
any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
before such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders of Notes on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
The ownership of Notes shall be proved by the Note Register.
In the case of a Global Note, its Holder shall be entitled to give or take, or
vote on, any relevant action with respect to all or only a portion of the
principal amount at maturity represented by such Global Note as of the record
date fixed for Notes, as indicated by Schedule A to such Global Note.
Without limiting the foregoing, a Holder entitled hereunder to give or take any
action hereunder with regard to any particular Note may do so with regard to all
or any part of the principal amount at maturity of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.
Any request, demand, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Note shall bind every future Holder of the same Note
and the Holder of every Note issued upon the registration of transfer thereof or
in exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Trustee or the Company in reliance thereon, whether
or not notation of such action is made upon such Note.
105. NOTICES, ETC., TO TRUSTEE AND COMPANY
Any request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
(first-class postage paid) to or with the Trustee at the Corporate
Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
106. NOTICE TO HOLDERS; WAIVER
Where this Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Note Register, or in the case of any
Global Note, at the address provided to the Trustee by the Holder thereof, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
35
Except as otherwise provided herein, all notices to Holders will be valid if
published in a leading German language daily newspaper published in Frankfurt
and in a leading English language daily newspaper published in
New York City and
in London or such other English language daily newspaper with general
circulation in Europe and the United States, as the case may be, as the Trustee
may approve and, so long as the Notes are listed on the Luxembourg Stock
Exchange, in one daily newspaper published in Luxembourg approved by the
Trustee. Any notice will be deemed to have been given on the date of publication
or, if so published more than once or on different dates, on the date of the
first publication. It is expected that publication will normally be made in the
WALL STREET JOURNAL (
New York edition), the FINANCIAL TIMES (London edition),
the HANDELSBLATT, and, so long as the Notes are listed on the Luxembourg Stock
Exchange, the LUXEMBURGER WORT. If publication as provided above is not
practicable, notice will be given in such other manner, and will be deemed to
have been given on such date, as the Trustee may approve.
In case by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Any request, demand, authorization, directive, notice, consent or waiver
required or permitted under this Indenture shall be in the English language.
107. TRUST INDENTURE ACT CONTROLS
If any provision hereof limits, qualifies or conflicts with a provision of the
Trust Indenture Act that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
The parties agree that the provisions of the Trust Indenture Act (including
Sections 310 through 318, inclusive, thereof) 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. If and to the extent that any provision of this
Indenture limits, qualifies, or conflicts with the duties imposed by, or with
another provision (an "INCORPORATED PROVISION") included in this Indenture by
operation of Sections 310 to 318, inclusive, of the Trust Indenture Act, such
imposed duties or incorporated provision shall control and such Indenture
provisions shall be deemed modified thereby.
108. EFFECT OF HEADINGS AND TABLE OF CONTENTS
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
109. SUCCESSORS AND ASSIGNS
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
110. SEVERABILITY CLAUSE
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
36
111. BENEFITS OF INDENTURE
Nothing in this Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders of Notes, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
112. GOVERNING LAW
This Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of
New York. This Indenture is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
113. LEGAL HOLIDAYS
In any case where any Interest Payment Date, Redemption Date, Purchase Date or
Stated Maturity of any Note shall not be a Business Day or shall not be a day on
which banking institutions have access to the TARGET System, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, PROVIDED that no additional interest shall
accrue for the period from and after such Interest Payment Date, Redemption Date
or Purchase Date or Stated Maturity, as the case may be, on account of such
delay.
114. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES
By the execution and delivery of this Indenture, the Company (i) acknowledges
that it has, by separate written instrument, irrevocably designated and
appointed CT Corporation System as its authorized agent upon which process may
be served in any suit or proceeding arising out of or relating to the Notes or
this Indenture that may be instituted in any Federal or State court in the
Borough of Manhattan, The City of
New York or brought under Federal or State
securities laws or brought by the Trustee in its capacity as a trustee
hereunder, and acknowledges that CT Corporation System has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such suit
or proceeding and waives, to the extent possible, any objection which it may now
or hereafter have to the laying of venue of any such proceeding or any claim of
inconvenient forum, and (iii) agrees that service of process upon CT Corporation
System shall be deemed in every respect effective service of process upon it in
any such suit or proceeding. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation System in full force and effect so long as this Indenture shall
be in full force and effect and for the continuous period from the date hereof
through and including the date which is two years after the date upon which the
last of the Notes shall be outstanding. The Trustee agrees to mail or deliver a
copy of any service referred to in (iii) above and actually received by it to
the Chief Executive Officer of the Company at its principal office at the
address set out on page 1 of this Indenture or at any other address previously
notified in writing to the Trustee.
To the extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment before judgment, attachment in aid of execution or otherwise)
with respect to itself or its property, it hereby irrevocably waives such
immunity in respect of its respective obligations under this Indenture and the
Notes to the fullest extent permitted by law.
37
115. CONVERSION OF CURRENCY
The Company covenants and agrees that the following provisions shall apply to
conversion of currency in the case of the Notes and this Indenture:
(a) (i) If for the purpose of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to
convert into any other currency (the "JUDGMENT currency") an
amount due in euros, then the conversion shall be made at the
rate of exchange prevailing on the Business Day before the day
on which the judgment is given or the order of enforcement is
made, as the case may be (unless a court shall otherwise
determine).
(ii) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment
is given or an order of enforcement is made, as the case may
be (or such other date as a court shall determine), and the
date of receipt of the amount due, the Company will pay such
additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the amount paid in the
judgment currency when converted at the rate of exchange
prevailing on the date of receipt will produce the amount in
euros originally due.
(b) In the event of the winding-up of the Company at any time while any
amount or damages owing under the Notes and this Indenture, or any
judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders and the
Trustee harmless against any deficiency arising or resulting from any
variation in rates of exchange between (1) the date as of which the
equivalent of the amount in euros due or contingently due under the
Notes and this Indenture (other than under this Subsection (b)) is
calculated for the purposes of such winding-up and (2) the final date
for the filing of proofs of claim in such winding-up. For the purpose
of this Subsection (b), the final date for the filing of proofs of
claim in the winding-up of the Company shall be the date fixed by the
liquidator or otherwise in accordance with the relevant provisions of
applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up
before payment by the liquidator or otherwise in respect thereto.
(c) The term "RATE(S) OF EXCHANGE" shall mean the rate(s) of exchange
quoted by the Trustee at its foreign exchange desk in its office in
London, England at 12:00 noon (Greenwich Mean Time) for purchases of
euros with the judgment currency other than euros referred to in
Subsections (a) and (b) above and includes any premiums and costs of
exchange payable.
116. CURRENCY EQUIVALENT
Except as provided in Section 115, for purposes of the construction of the terms
of this Indenture or of the Notes, in the event that any amount is stated herein
in euros, as of any date such euro amount shall also be deemed to represent the
amount in any other relevant currency which is required to purchase such amount
in euros at the rate of exchange quoted by the Trustee at its foreign exchange
desk in its office in London, England at 12:00 noon (Greenwich Mean Time) on the
date of determination.
38
ARTICLE TWO
NOTE FORMS
201. FORMS GENERALLY
The Notes and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes.
Notes will be initially issued as one or more Global Notes. Each Global Note
authenticated under this Indenture shall be in global registered form without
coupons, and each such Global Note shall constitute a single Note for all
purposes of this Indenture.
Upon their original issuance, Rule 144A Notes and Initial Regulation S Notes
shall be issued in the form of separate Global Notes. The Global Notes
representing Rule 144A Notes, together with their Successor Notes which are
Global Notes, are collectively herein called the "RESTRICTED GLOBAL NOTES". The
Global Notes representing Initial Regulation S Notes, together with their
Successor Notes which are Global Notes, are collectively herein called the
"REGULATION S GLOBAL NOTES".
202. FORM OF FACE OF GLOBAL NOTE
10.375% SENIOR NOTES DUE June 1, 2011
COMMON CODE NO. [Restricted Note: 012958714 / Regulation S:012958676] ISIN NO.
[Restricted Note: XS0129587142 / Regulation S XS0129586763] No.________________
[LEGEND IF THE NOTE IS A RESTRICTED NOTE:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS NOTE AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS NOTE TO
REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS NOTE SHALL BE DEEMED, BY THE ACCEPTANCE
HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT. EACH PURCHASER OF
THIS NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT
39
THE TRANSFEROR OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.]
[LEGEND IF THE NOTE IS A REGULATION S GLOBAL NOTE:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT, UNDER THE SECURITIES ACT, BE OFFERED, SOLD, OR
DELIVERED IN THE UNITED STATES UNLESS THIS NOTE IS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
[LEGEND IF THE NOTE IS NOT AN EXCHANGE NOTE:
THE HOLDER OF THIS NOTE IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, THE
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, DATED AS OF MAY 16, 2001 AMONG THE
COMPANY AND THE OTHER PARTIES REFERRED TO THEREIN.]
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT THE FOLLOWING PARAGRAPH: THIS NOTE IS
A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
▇▇▇▇▇▇ Griesheim Holding AG, a stock corporation formed under the laws of the
Federal Republic of Germany (the "COMPANY", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _____________________________________ or its registered
assigns the principal sum indicated on Schedule A hereof on June 1, 2011 and to
pay interest thereon from May 16, 2001 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on June
1 and December 1 in each year, commencing December 1, 2001 at the rate of
10.375% per annum, until the principal hereof is paid or made available for
payment and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of 11.375% per annum on any overdue principal and
premium and on any overdue installment of interest until paid.
Interest on the Notes shall be computed based on a 360-day year of twelve 30-day
months.
[IF AN ORIGINAL NOTE, THEN INSERT: Notwithstanding the foregoing, if (i) the
Company has not filed a registration statement (the "EXCHANGE REGISTRATION
STATEMENT") under the Securities Act of 1933, as amended (the "SECURITIES ACT"),
registering a security substantially identical to this Note (except that such
Exchange Note will not contain terms with respect to the Special Interest
payments described below or legends reflecting transfer restrictions) pursuant
to an exchange offer (the "EXCHANGE OFFER") (or, if applicable, a registration
statement registering this Note for resale (a "RESALE REGISTRATION STATEMENT"))
on or before the date on which such registration statement is required to be
filed pursuant to the Exchange and Registration Rights Agreement, dated as of
May 16, 2001 among the Company and the other parties referred to therein (the
"REGISTRATION RIGHTS AGREEMENT"), or (ii) the Exchange Registration Statement
relating to the Exchange Offer (or, if applicable, a Resale Registration
Statement) has not become or been declared effective on or before the date on
which such registration statement is required to become or be declared effective
pursuant to the Registration Rights Agreement, or (iii) the Exchange Offer has
not been completed within 45 days after the initial effective date of the
Exchange Registration Statement (if the
40
Exchange Offer is then required to be made) or (iv) any Exchange Registration
Statement or, if applicable, the Resale Registration Statement is filed and
declared effective but shall thereafter cease to be effective (except as
specifically permitted pursuant to the Registration Rights Agreement) without
being succeeded promptly by an additional registration statement filed and
declared effective, in each case in Clauses (i) through (iv) upon the terms and
conditions set forth in the Registration Rights Agreements (each such event
referred to in Clauses (i) through (iv), a "REGISTRATION DEFAULT" and each
period during which a Registration Default has occurred and is continuing, a
"REGISTRATION DEFAULT PERIOD"), then interest will accrue (in addition to any
stated interest on the Notes) (the "STEP-UP") at a per annum rate of 0.50% for
the first 90 days of the Registration Default Period, and increasing at an
additional per annum rate of 0.50% for each subsequent 90 days of the
Registration Default Period to a maximum additional per annum rate of 1.00%
thereafter for the remaining portion of the Registration Default Period until
such time (the "STEP-DOWN DATE") as no Registration Default is in effect.
Interest accruing as a result of the Step-Up is referred to herein as "SPECIAL
INTEREST". Special Interest may not accrue in respect of more than one
Registration Default at any one time. Accrued Special Interest, if any, shall be
paid semi-annually on June 1 and December 1 in each year; and the amount of
accrued Special Interest shall be determined on the basis of the number of days
during which such Registration Default is in effect. The Company shall provide
the Trustee with written notice of the date of any Registration Default and the
Step-Down Date. Any accrued and unpaid interest (including Special Interest) on
this Note upon the issuance of an Exchange Note (as defined in the Indenture) in
exchange for this Note shall cease to be payable to the Holder hereof but such
accrued and unpaid interest (including Special Interest) shall be payable on the
next Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date.]
Payments in respect of this Global Note will be made by wire transfer of
immediately available funds to the accounts specified by the holder of such
Global Note. All such payments are subject to the provisions in Section 113 of
the Indenture relating to legal holidays.
Notwithstanding the foregoing, the Company will pay principal (and premium, if
any) on a Note upon presentation and surrender of such Note at the specified
office of the Paying Agent or any additional or substitute paying agent by a
euro check drawn on a bank in Frankfurt, London, the City of
New York, or
Luxembourg.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
or its authorized authentication agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
---------------------
▇▇▇▇▇▇ GRIESHEIM HOLDING AG
ON BEHALF OF ALL MEMBERS OF THE MANAGEMENT
BOARD PURSUANT TO A RESOLUTION UNDER SECTION
78 IV 1 AKTG DATED MAY 11, 2001
By:
--------------------------------------
Name: ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of the Management Board
41
203. FORM OF FACE OF CERTIFICATED NOTE
10.375% SENIOR NOTES DUE 2011
COMMON CODE NO. [Restricted Note: 012958714 / Regulation S:012958676] ISIN NO.
[Restricted Note: XS0129587142 / Regulation S XS0129586763]
Eo
[LEGEND IF THE NOTE IS A RESTRICTED NOTE:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS NOTE AND ANY RELATED
DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE
RESTRICTIONS ON AND PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS NOTE TO
REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION
THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED
SECURITIES GENERALLY. THE HOLDER OF THIS NOTE SHALL BE DEEMED, BY THE ACCEPTANCE
HEREOF, TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT. EACH PURCHASER OF
THIS NOTE OR ANY INTEREST HEREIN IS HEREBY NOTIFIED THAT THE TRANSFEROR OF THIS
NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.]
[LEGEND IF THE NOTE IS A REGULATION S NOTE:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT, UNDER THE SECURITIES ACT, BE OFFERED, SOLD, OR
DELIVERED IN THE UNITED STATES UNLESS THIS SECURITY IS REGISTERED UNDER THE
SECURITIES ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF IS
AVAILABLE.]
[LEGEND IF THE NOTE IS NOT AN EXCHANGE NOTE AND IS SUBJECT TO A REGISTRATION
RIGHTS AGREEMENT:
THE HOLDER OF THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF THE
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, DATED AS OF [MAY 16, 2001][o], AMONG
THE COMPANY AND THE OTHER PARTIES REFERRED TO THEREIN.]
42
▇▇▇▇▇▇ Griesheim Holding AG a stock corporation formed under the laws of Federal
Republic of Germany (the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to __________________, or its registered assigns, the principal
sum of E_____________________ on June 1, 2011 and to pay interest thereon
from May 16, 2001, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually on June 1 and
December 1 in each year, commencing December 1, 2001 at the rate of 10.375% per
annum, until the principal hereof is paid or made available for payment and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of 11.375% per annum on any overdue principal and premium and on any
overdue installment of interest until paid.
Interest on the Notes shall be computed based on a 360-day year of twelve 30-day
months.
[IF AN ORIGINAL NOTE OR ADDITIONAL NOTE SUBJECT TO A REGISTRATION RIGHTS
AGREEMENT, THEN INSERT: Notwithstanding the foregoing that if (i) the Company
has not filed a registration statement (the "EXCHANGE REGISTRATION STATEMENT")
under the Securities Act of 1933, as amended (the "SECURITIES ACT"), registering
a security substantially identical to this Note (except that such Exchange Note
will not contain terms with respect to the Special Interest payments described
below or legends reflecting transfer restrictions) pursuant to an exchange offer
(the "EXCHANGE OFFER") (or, if applicable, a registration statement registering
this Note for resale (a "RESALE REGISTRATION STATEMENT")) on or before the date
on which such registration statement is required to be filed pursuant to the
Exchange and Registration Rights Agreement, dated as of May 16, 2001, among the
Company and the other parties referred to therein (the "REGISTRATION RIGHTS
AGREEMENT"), or (ii) the Exchange Registration Statement relating to the
Exchange Offer (or, if applicable, a Resale Registration Statement) has not
become or been declared effective on or before the date on which such
registration statement is required to become or be declared effective pursuant
to the Registration Rights Agreement, or (iii) the Exchange Offer has not been
completed within 45 days after the initial effective date of the Exchange
Registration Statement (if the Exchange Offer is then required to be made) or
(iv) any Exchange Registration Statement or, if applicable, the Resale
Registration Statement is filed and declared effective but shall thereafter
cease to be effective (except as specifically permitted pursuant to the
Registration Rights Agreement) without being succeeded promptly by an additional
registration statement filed and declared effective, in each case in Clauses (i)
through (iv) upon the terms and conditions set forth in the Registration Rights
Agreement (each such event referred to in Clauses (i) through (iv), a
"REGISTRATION DEFAULT" and each period during which a Registration Default has
occurred and is continuing, a "REGISTRATION DEFAULT PERIOD"), then interest will
accrue (in addition to any stated interest on the Notes) (the "STEP-UP") at a
per annum rate of 0.50% for the first 90 days of the Registration Default
Period, and increasing at an additional per annum rate of 0.50% for each
subsequent 90 days of the Registration Default Period to a maximum additional
per annum rate of 1.00% thereafter for the remaining portion of the Registration
Default Period until such time (the "STEP-DOWN DATE") as no Registration Default
is in effect. Interest accruing as a result of the Step-Up is referred to herein
as "SPECIAL INTEREST". Special Interest may not accrue in respect of more than
one Registration Default at any one time. Accrued Special Interest, if any,
shall be paid semi-annually on June 1 and December 1 in each year; and the
amount of accrued Special Interest shall be determined on the basis of the
number of days during which such Registration Default is in effect. The Company
shall provide the Trustee with written notice of the date of any Registration
Default and the Step-Down Date. Any accrued and unpaid interest (including
Special Interest) on this Note upon the issuance of an Exchange Note (as defined
in the Indenture) in exchange for this Note shall cease to be payable to the
Holder hereof but such accrued and unpaid interest (including Special Interest)
shall be payable on the next Interest Payment Date for such Exchange Note to the
Holder thereof on the related Regular Record Date.]
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
May 15 or November 15 (whether or not a Business Day), as the case may be, next
preceding such Interest
43
Payment Date. Any such interest not so punctually paid or duly provided for will
immediately cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Notes not less than 10 days before
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture.
Payments in respect of Certificated Notes will be made by wire transfer of
immediately available funds to the accounts specified by the holders of the
Certificated Notes or, if no account is specified, by mailing a check to each
holder's registered address. All such payments are subject to the provisions in
Section 113 of the Indenture relating to legal holidays.
Notwithstanding the foregoing, the Company will pay principal (and premium, if
any) on a Note upon presentation and surrender of such Note at the specified
office of the Paying Agent or any additional or substitute paying agent by a
euro check drawn on a bank in Frankfurt, London, the City of New York, or
Luxembourg.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee
or its authorized authentication agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
▇▇▇▇▇▇ GRIESHEIM HOLDING AG
ON BEHALF OF ALL MEMBERS OF THE MANAGEMENT
BOARD PURSUANT TO A RESOLUTION UNDER SECTION
78 IV 1 AKTG DATED MAY 11, 2001
By:
---------------------------------------
Name:
Title:
204. FORM OF REVERSE OF NOTE
This Note is one of a duly authorized issue of Notes of the Company designated
as its 10.375% Senior Notes due 2011 (the "NOTES"), issued and to be issued
under an Indenture, dated as of May 16, 2001 (herein called the "INDENTURE"),
between the Company and The Bank of New York, as Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
44
At any time prior to June 1, 2006, the Company may redeem all but not part of
the Notes after giving not less than 30 nor more than 60 days' notice, at a
redemption price equal to 100% of the principal amount thereof, plus the
Applicable Redemption Premium and accrued and unpaid interest on the Notes,
Special Interest, if any, and Additional Amounts, if any, to the redemption
date.
At any time on or after June 1, 2006, the Company may redeem all or a part of
the Notes after giving not less than 30 nor more than 60 days' notice to the
holders at the following redemption prices, expressed as percentages of
principal amount, plus accrued and unpaid interest on the Notes, Special
Interest, if any, and Additional Amounts, if any, to the applicable redemption
date commencing on the dates set forth below.
YEAR PERCENTAGE
---- ----------
June 1, 2006 105.188%
June 1, 2007 103.458%
June 1, 2008 101.729%
June 1, 2009 and thereafter 100.000%
Notwithstanding the foregoing, on or prior to June 1, 2004, the Company may on
one or more occasions use the net cash proceeds of one or more Public Equity
Offerings to redeem up to 35% of the aggregate principal amount of Notes issued
under the Indenture, at a redemption price equal to 110.375% of the principal
amount of the Notes, plus accrued and unpaid interest, Special Interest, if any,
and Additional Amounts, if any, to the redemption date; provided that:
(1) at least 65% of the aggregate principal amount of Notes issued under
the Indenture remains outstanding immediately after the occurrence of
such redemption (excluding Notes held by the Company and its
Affiliates); and
(2) the redemption occurs within 90 days of the date of the closing of the
Public Equity Offering.
Except for repurchase obligations upon a Change of Control or with certain
Excess Proceeds from Asset Sales, the Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.
The Company will pay to the Holders of Notes such Additional Amounts as may
become payable under the Indenture.
The Company, at its option, may redeem the Notes in whole but not in part, at a
redemption price equal to the then outstanding principal amount thereof,
together with interest accrued to the date fixed for redemption, Special
Interest, if any, and any Additional Amounts payable with respect thereto as a
result of the redemption or otherwise, if the Company determines and certifies
to the Trustee immediately prior to the giving of such notice that:
(1) the payment by the Company of Additional Amounts or further Additional
Amounts (as the case may be) in respect of such Notes would become
required as a result of (a) any change in or amendment to the laws or
treaties (or any regulations or rulings promulgated thereunder) of
Germany (or to which it is subject), or any relevant jurisdiction or
any political subdivision or authority thereof or therein having power
to tax or (b) any change or amendment in the existing official position
or the introduction of an official position regarding the application
or interpretation of such laws, regulations or rulings (including a
holding by a court of competent jurisdiction or any practice or
concession of the applicable German tax authority)) which change,
amendment, application or interpretation becomes effective on or after
the date of issuance of the Notes; and
45
(2) such obligation cannot be avoided by the Company taking reasonable
measures available to it.
Notwithstanding the preceding, no such notice of redemption will be given
earlier than 60 days prior to the earliest date on which the Company could be
obligated to pay such Additional Amounts if a payment in respect of the Notes
was then due. Prior to the giving of any notice of redemption described in this
paragraph, the Company will deliver to the Trustee (y) a certificate signed by a
member of the management board of the Company stating that the obligation to pay
Additional Amounts cannot be avoided by the Company taking reasonable measures
available to it and (z) a written opinion of independent legal counsel to the
Company to the effect that circumstances referred to above exist.
In the event of redemption or purchase pursuant to an Offer to Purchase of this
Note in part only, a new Note or Notes for the unredeemed or unpurchased portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default shall occur and be continuing, there may be declared due
and payable the principal amount of the Notes, in the manner and with the effect
provided in the Indenture. Upon payment of (i) the principal amount so declared
due and payable and any overdue installment of interest, (ii) interest on the
principal amount and (iii) as provided on the face hereof, interest on any
overdue installment of interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest on the Notes shall
terminate.
The Indenture provides that, subject to certain conditions, if (i) certain Net
Proceeds are available to the Company as a result of Asset Sales or (ii) a
Change of Control occurs, the Company shall be required to make an Offer to
Purchase for all or a specified portion of the Notes.
In the event of redemption (or purchase pursuant to an Offer to Purchase) of
this Note in part only, a new Note or Notes for the unredeemed (or unpurchased)
portion hereof will be issued in the name of the Holder hereof upon cancellation
hereof.
The Indenture contains provisions for defeasance at any time of (i) the entire
indebtedness of this Note or (ii) certain restrictive covenants and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth therein.
Unless the context requires otherwise, the Original Notes (as defined in the
Indenture), the Exchange Notes (as defined in the Indenture) and any Additional
Notes (as defined in the Indenture) shall constitute one series for all purposes
under the Indenture, including amendments, waivers, redemptions and Offers to
Purchase. The Original Notes and the Exchange Notes constitute the same
Indebtedness of the Company and shall be entitled to the same benefits under the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Notes at the time Outstanding. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Notes at the time Outstanding,
on behalf of the Holders of all the Notes, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
46
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
[IN THE CASE OF A CERTIFICATED NOTE, INSERT THE FOLLOWING PARAGRAPH: As provided
in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note is registrable in the Note Register, upon surrender of
this Note for registration of transfer at the office or agency of the Trustee or
any Paying Agent in ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or Luxembourg and
maintained for such purposes (against surrender of this Certificated Note, in
the case of a payment of principal), duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.]
The Notes are issuable only without coupons in denominations of E1,000 and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Before due presentment of this Note for registration of transfer, the Company,
the Trustee, each Paying Agent and any agent of the Company or the Trustee may
treat the Person in whose name this Note is registered as the owner hereof for
all purposes, whether or not this Note be overdue, and neither the Company, the
Trustee, any Paying Agent nor any such agent shall be affected by notice to the
contrary.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture. In the event of any inconsistency or
conflict between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall prevail.
THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its entirety by the Company
pursuant to Section 1014 or 1015 of the Indenture, check the box: / /
If you want to elect to have only a part of this Note purchased by the Company
pursuant to Section 1014 or 1015 of the Indenture, state the amount: E______
Dated: Your Signature:
---------------- ---------------------------------
(Sign exactly as name appears
on the other side of this Note)
47
[ATTACH THE FOLLOWING SCHEDULE A IN THE CASE OF A GLOBAL NOTE:]
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Global Note shall be
Eo. The following decreases/increases in the principal amount at maturity of
this Global Note have been made:
Total Principal
Date of Decrease in Increase in Amount at Maturity Notation Made by
Decrease/ Principal Amount Principal Amount Following such or on Behalf of
Increase at Maturity at Maturity Decrease/ Increase Trustee
--------- ----------- ---------- ------------------ -------
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205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture. This
Note is duly authenticated without recourse, warranty or liability.
THE BANK OF NEW YORK,
as Trustee
By
------------------------
Authorized Signatory
Dated:
---------------------
48
ARTICLE THREE
THE NOTES
301. TITLE AND TERMS
The aggregate principal amount at maturity of Notes which may be authenticated
and delivered under this Indenture is limited to E550,000,000 aggregate
principal amount of Notes, and, subject to prior authorization by a
Shareholders' Resolution or, a Board Resolution, Additional Notes of the same
series may be issued subsequently subject to compliance with Section 1008
hereof; except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
304, 305, 306, 906 or 1108 or in connection with an Offer to Purchase pursuant
to Section 1014 or 1015.
The Company may issue Exchange Notes from time to time pursuant to an Exchange
Offer or otherwise in authorized denominations in exchange for a like principal
amount of Original Notes or Additional Notes. Upon any such exchange the
Original Notes or Additional Notes, as applicable, shall be cancelled in
accordance with Section 309 and shall no longer be deemed Outstanding for any
purpose. In no event shall the aggregate principal amount of Original Notes and
Exchange Notes Outstanding exceed E550,000,000. The issuance of any Exchange
Notes will not constitute new Indebtedness of the Company.
The Notes shall be known and designated as the "10.375% Senior Notes due 2011"
of the Company. The Stated Maturity of the Notes shall be June 1, 2011. The
Notes shall bear interest at the rate of 10.375% per annum from May 16, 2001 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on June 1 and
December 1, commencing December 1, 2001 until the principal thereof is paid or
made available for payment and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of 10.375% per annum on any overdue
principal and premium and on any overdue installment of interest until paid;
PROVIDED, HOWEVER, with respect to Original Notes, if there has been a
Registration Default, a Step-Up will occur and the Original Notes will from then
bear Special Interest until the Step-Down Date. Accrued Special Interest, if
any, shall be paid in cash in arrears semi-annually on June 1 and December 1 in
each year, and the amount of accrued Special Interest shall be computed as
provided in Section 310.
Payments in respect of the Notes represented by a Global Note will be made by
wire transfer of immediately available funds to the accounts specified by the
holder of such Global Note. Similarly, payments in respect of Certificated Notes
will be made by wire transfer of immediately available funds to the accounts
specified by the holders of the Certificated Notes or, if no account is
specified, by mailing a check to each holder's registered address. All such
payments are subject to the provisions in Section 113 of the Indenture relating
to legal holidays.
Notwithstanding the foregoing, the Company will pay principal (and premium, if
any) on a Note upon presentation and surrender of such Note at the specified
office of the Paying Agent or any additional or substitute paying agent by a
euro check drawn on a bank in Frankfurt, London, the City of New York, or
Luxembourg.
The Notes shall be subject to repurchase by the Company pursuant to an Offer to
Purchase as provided in Sections 1014 and 1015.
The Notes shall be redeemable as provided in Article Eleven.
The Notes shall be subject to defeasance at the option of the Company as
provided in Article Twelve.
49
Unless the context requires otherwise, the Original Notes, the Exchange Notes
and any Additional Notes shall constitute one series for all purposes under this
Indenture, including amendments, waivers, redemptions, Acts of Holders and
Offers to Purchase.
302. DENOMINATIONS
The Notes shall be issuable only in global or in definitive registered form
without coupons and only in denominations of E1,000 principal amount and
integral multiples thereof.
303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING
The Notes shall be executed on behalf of the Company by a member of its
management board. The signature of any of these officers on the Notes may be
manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at any
time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices before the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication, together with a Company Request for the authentication and
delivery of such Notes; and the Trustee in accordance with such Company Request
shall manually authenticate and deliver such Notes as in this Indenture provided
and not otherwise.
In authenticating such Notes, and accepting the additional responsibilities
under this Indenture in relation to such Notes, the Trustee shall be entitled to
receive and rely on, and shall be fully protected in relying upon:
(a) a copy of the resolutions of the management board of the Company and,
if applicable, the decision of any member of the management board
specified in such resolutions in or pursuant to which the terms and
form of the Notes were approved, certified by the Authorized
Signatories of the Company to have been duly adopted and to be in full
force and effect as of the date of such certificate; and
(b) an executed supplemental indenture, if any.
Each Note shall be dated the date of its authentication.
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 Note has been duly
authenticated and delivered hereunder.
The Company shall be entitled, subject to Section 301, to issue Additional Notes
under this Indenture which shall have identical terms as the Notes issued on the
Issue Date, other than with respect to the date of issuance, issue price and
amount of interest payable on the first payment date applicable to such series.
The Notes issued on the Issue Date and any Additional Notes shall be treated as
a single class for all purposes under this Indenture.
With respect to any Additional Notes, the Company shall provide the Trustee with
evidence satisfactory to it that the Additional Notes have been duly authorized
and issued and set forth in a Board Resolution and an Officers' Certificate or
such other appropriate evidence that the Additional Notes have been duly
50
authorized and issued, a copy of each of which shall be delivered promptly to
the Trustee, setting forth the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture; and
(2) the issue price, the issue date and the common code and ISIN
numbers of such Additional Notes and the amount of interest
payable on the first payment date applicable thereto;
PROVIDED, HOWEVER, that no Additional Notes may be issued at a
price that would cause such Additional Notes to have "original
issue discount" within the meaning of Section 1273 of the U.S.
Internal Revenue Code of 1986, as amended.
304. TEMPORARY NOTES
Pending the preparation of definitive Notes, the Company may execute, and upon
Company Request the Trustee shall authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause definitive Notes to be
prepared without unreasonable delay. After the preparation of definitive Notes,
the temporary Notes shall be exchangeable for definitive Notes upon surrender of
the temporary Notes at any office or agency of the Company designated pursuant
to Section 1002, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Notes of the same authorized denominations. Until so exchanged the
temporary Notes shall in all respects be entitled to the same benefits under
this Indenture as definitive Notes.
305. TRANSFER AND EXCHANGE
(a) REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE GENERALLY.
A Global Note shall be exchanged by the Company (with authentication by
the Trustee or a Paying Agent) for one or more Notes of the same
series, if (i) Euroclear and Clearstream are unwilling or unable to
continue as depository for such Global Note and the Company fails to
appoint a successor depository or (ii) there shall have occurred and be
continuing a Default or Event of Default, PROVIDED, that such Notes and
such Global Note after such exchange shall be in authorized
denominations. Whenever all of a Global Note is exchanged for one or
more Notes it shall be surrendered by the Holder thereof to the Trustee
or a Paying Agent for cancellation. Whenever a part of a Global Note is
exchanged for one or more Notes, such Global Note shall be surrendered
by the Holder thereof to the Trustee or a Paying Agent who shall cause
an adjustment to be made to Schedule A of such Global Note such that
the principal amount of such Global Note will be reduced by the portion
of such Global Note so exchanged for Notes. All Notes issued in
exchange for a Global Note or any portion thereof shall be registered
in such names as Euroclear or Clearstream shall instruct (which
instruction shall reflect the instruction of the Holder of the Notes)
the Trustee or the Paying Agent (without any liability on the Trustee's
or the Paying Agent's part). Every Note authenticated and delivered in
exchange for or in lieu of, a Global Note or any portion thereof,
pursuant to Section 304, 306, 906 or 1108 or in accordance with any
Offer to Purchase pursuant to Section 1014 or 1015 hereof or otherwise,
shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other
than as provided in this paragraph.
51
The Company shall cause to be kept at the Corporate Trust Office or the
principal corporate office of the Trustee or any Paying Agent a
register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "NOTE REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Notes and of transfers of Notes.
Such Trustee or Paying Agent is hereby appointed "NOTE REGISTRAR" for
the purpose of registering Notes and transfers of Notes as herein
provided. Such Note Register of Notes shall distinguish between
Original Notes and Exchange Notes.
Upon surrender for registration of transfer of any Note at an office or
agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee or the Paying Agent
shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes, of any authorized
denominations and of a like aggregate principal amount and tenor, each
such Note bearing such legends reflecting restrictions as may be
required by this Indenture.
Subject to Section 305(b), at the option of the Holder, Notes may be
exchanged for other Notes of the same series of any authorized
denominations and of a like aggregate principal amount, upon surrender
of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and
the Trustee or the Paying Agent shall authenticate and deliver, the
Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt
(subject to the provisions in the Original Notes regarding the payment
of Special Interest), and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer
or exchange.
Each new Note to be issued shall be available for delivery within 10
Business Days at the office of the Trustee in the City of New York or
in London, England or at the office of the Paying Agent in Luxembourg.
The Company will pay the cost of preparing, printing, packaging and
delivering the Notes.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee or the
Paying Agent) be duly endorsed, or be accompanied by a written
instrument of transfer in form and substance satisfactory to the
Company and the Note Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
In the event that the Company delivers to the Trustee or a Paying Agent
a copy of an Officers' Certificate (in form and substance satisfactory
to the Trustee or the Paying Agent) certifying that the Exchange
Registration Statement has been declared effective by the Commission
and that the Company has offered Exchange Notes to the Holders in
accordance with the Exchange Offer, the Trustee or the Paying Agent
shall exchange, upon request of any Holder, such Holder's Notes for
Exchange Notes upon the terms set forth in the Exchange Offer.
Subject to Section 305(b), the Holder of the Global Note may increase
the principal amount at maturity of the Global Note held by it by
surrendering any Note registered in its name to the Registrar for
cancellation. Upon surrender of such Note, the Note Registrar shall
forward such Note to the Trustee or the Paying Agent for cancellation
and the Trustee or the Paying Agent shall make a notation on Schedule A
of the Global Note held by such Holder to increase the principal
52
amount at maturity of such Global Note by an amount equal to the
principal amount at maturity of the Note surrendered for cancellation.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company and the Trustee and the transfer and
paying agent may require that the Holder of such Notes (i) pay a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
such Notes, other than exchanges pursuant to Section 304, 306, 906 or
1108 not involving any transfer and (ii) furnish appropriate
endorsements and transfer documents.
The Company shall not be required to (i) issue, register the transfer
of or exchange any Note during a period beginning at the opening of
business 15 days before (A) the due date for any payment of principal
of or interest on the Notes and ending at the close of business on such
due date or (B) the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 1104 and ending at the
close of business on the day of such mailing, or (ii) register the
transfer of or exchange any Note so selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(b) CERTAIN TRANSFERS AND EXCHANGES.
Notwithstanding any other provision of this Indenture or the Notes,
transfers and exchanges of Notes and beneficial interests in a Global
Note of the kinds specified in this Section 305(b) shall be made only
in accordance with this Section 305(b).
(i) RESTRICTED GLOBAL NOTE TO REGULATION S GLOBAL NOTE.
If the holder of a beneficial interest in the Restricted
Global Note wishes at any time to transfer such interest in
whole or in part to a Person who wishes to take delivery
thereof in the form of a beneficial interest in the Regulation
S Global Note, such transfer may be effected only in
accordance with the provisions of this Clause (b)(i) and
Section 305(c) below and subject to the Applicable Procedures.
Upon receipt by the Trustee or any Paying Agent, as Note
Registrar, of (A) an order given by the holder of a beneficial
interest in the Restricted Global Note directing that the
principal amount represented by such Regulation S Global Note
be increased by a specified amount and that the principal
amount represented by such Restricted Global Note be reduced
by an equal amount and (B) a Regulation S Certificate,
satisfactory to the Trustee or Paying Agent and duly executed
by the holder of such beneficial interest or his attorney in
fact duly authorized in writing, then the Trustee or the
Paying Agent, as Note Registrar but subject to Section 305(c)
below, shall reduce the principal amount of such Restricted
Global Note and increase the principal amount of such
Regulation S Global Note by such specified principal amount.
(ii) REGULATION S GLOBAL NOTE TO RESTRICTED GLOBAL NOTE.
If the holder of a beneficial interest in the Regulation S
Global Note wishes at any time to transfer such interest such
Note in whole or in part to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the
Restricted Global Note, such transfer may be effected only in
accordance with this Clause (b)(ii) and Section 305(c) and
subject to the Applicable Procedures. Upon receipt by the
Trustee or any Paying Agent, as Note Registrar, of an order in
a form satisfactory to the Trustee or Paying Agent given by
the holders of the beneficial interest in the Regulation S
Global Note directing that the principal amount represented by
such Regulation S Global Note be reduced by
53
a specified amount and that the principal amount represented
by such Restricted Global Note be increased by an equal
amount, then the Trustee or the Paying Agent, as Note
Registrar, shall reduce the principal amount of such
Regulation S Global Note and increase the principal amount of
such Restricted Global Note by such specified principal
amount.
(iii) RESTRICTED NON-GLOBAL NOTE TO RESTRICTED GLOBAL NOTE OR
REGULATION S GLOBAL NOTE.
If the Holder of a Certificated Note that is a Restricted Note
(a "RESTRICTED NON-GLOBAL NOTE") wishes at any time to
transfer all or any portion of such Note to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Note or the Regulation S
Global Note, such transfer may be effected only in accordance
with the provisions of this Clause (b)(iii) and Section 305(c)
below and subject to the Applicable Procedures. Upon receipt
by the Trustee or the Paying Agent, as Note Registrar, of (A)
such Certificated Note as provided in Section 305(a) and
instructions satisfactory to the Trustee or the Paying Agent
directing that the principal amount of the Restricted Global
Note or Regulation S Global Note be increased by a specified
principal amount not greater than the principal amount of such
Certificated Note and (B) a Restricted Notes Certificate, if
the principal amount of the Restricted Global Note is to be
increased, or a Regulation S Certificate, if the principal
amount of the Regulation S Global Note is to be increased, in
either case satisfactory to the Trustee or the Paying Agent
and duly executed by such Holder or his attorney duly
authorized in writing, then the Trustee or the Paying Agent,
as Note Registrar but subject to Section 305(c) below, shall
cancel such Certificated Note (and issue a new Certificated
Note in respect of any untransferred portion thereof) as
provided in Section 305(a) and increase the principal amount
of the Restricted Global Note or the Regulation S Global Note,
as the case may be, by the specified principal amount.
(iv) REGULATION S NON-GLOBAL NOTE TO RESTRICTED GLOBAL NOTE OR
REGULATION S GLOBAL NOTE.
If the Holder of a Certificated Note that is a Regulation S
Note (a "REGULATION S NON-GLOBAL NOTE") wishes at any time to
transfer all or any portion of such Note to a Person who
wishes to take delivery thereof in the form of a beneficial
interest in the Restricted Global Note or the Regulation S
Global Note, such transfer may be effected only in accordance
with this Clause (b)(iv) and Section 305(c) below and subject
to the Applicable Procedures. Upon receipt by the Trustee or
the Paying Agent, as Note Registrar, of (A) such Certificated
Note as provided in Section 305(a) and instructions
satisfactory to the Trustee or the Paying Agent directing that
the principal amount of the Restricted Global Note or
Regulation S Global Note be increased by a specified principal
amount not greater than the principal amount of such
Certificated Note and (B) if the principal amount of the
Restricted Global Note is to be increased, a Restricted Notes
Certificate satisfactory to the Trustee or the Paying Agent,
and each such certificate duly executed by such Holder or his
attorney duly authorized in writing, then the Trustee or the
Paying Agent, as Note Registrar but subject to Section 305(c)
below, shall cancel such Note (and issue a new Certificated
Note in respect of any untransferred portion thereof) as
provided in Section 305(a) and increase the principal amount
of the Restricted Global Note or the Regulation S Global Note,
as the case may be, by the specified principal amount.
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(v) CERTIFICATED NOTE TO CERTIFICATED NOTE.
A Certificated Note may be transferred, in whole or in part,
to a Person who takes delivery in the form of another
Certificated Note as provided in Section 305(a), PROVIDED
that, if the Note to be transferred in whole or in part is a
Restricted Note then the Trustee or the Paying Agent shall
have received (A) a Restricted Notes Certificate, satisfactory
to the Trustee or the Paying Agent and duly executed by the
transferor Holder or his attorney duly authorized in writing,
in which case the transferee Holder shall take delivery in the
form of a Restricted Note.
(vi) EXCHANGES BETWEEN GLOBAL NOTE AND CERTIFICATED NOTE.
A Global Note may be exchanged, in whole or in part, for one
or more Certificated Notes as provided in Section 305(a),
PROVIDED that, if such Global Note is a Restricted Global
Note, then such Global Note shall be exchanged for one or more
Restricted Notes (subject in each case to Section 305(c)). A
Certificated Note may be transferred to the Holder of a Global
Note only if (A) such transfer is effected in accordance with
Clause (b)(iii) or (iv) above.
(c) SECURITIES ACT LEGENDS.
Rule 144A Notes and their Successor Notes shall bear a Restricted Notes
Legend, and Initial Regulation S Notes and their Successor Notes shall
bear a Regulation S Legend, subject to the following:
(i) subject to the following Clauses of this Section 305(c), a
Note or any portion thereof which is exchanged, upon transfer
or otherwise, for a Global Note or any portion thereof shall
bear the Securities Act legend borne by such Global Note while
represented thereby;
(ii) subject to the following Clauses of this Section 305(c), a new
Note which is not a Global Note and is issued in exchange for
another Note (including a Global Note) or any portion thereof,
upon transfer or otherwise, shall bear the Securities Act
legend borne by such other Note, PROVIDED that, if such new
Note is required pursuant to Section 305(b)(v) or (vi) to be
issued in the form of a Restricted Note, it shall bear a
Restricted Notes Legend and, if such new Note is so required
to be issued in the form of a Regulation S Note, it shall bear
a Regulation S Legend;
(iii) Exchange Notes shall not bear a Securities Act legend;
(iv) after the applicable Rule 144(k) restricted period, a new Note
which does not bear a Securities Act legend may be issued in
exchange for or in lieu of a Note or any portion thereof which
bears such a legend if the Trustee or the Paying Agent has
received an Unrestricted Notes Certificate, satisfactory to
the Trustee or the Paying Agent and duly executed by the
Holder of such legended Note or his attorney duly authorized
in writing, and after such date and receipt of such
certificate, the Trustee or the Paying Agent shall
authenticate and deliver such a new Note in exchange for or in
lieu of such other Note as provided in this Article Three;
(v) a new Note which does not bear a Securities Act legend may be
issued in exchange for or in lieu of a Note or any portion
thereof which bears such a legend if, in the Company's
judgment, placing such a legend upon such new Note is not
necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee or the
55
Paying Agent, at the direction of the Company, shall
authenticate and deliver such a new Note as provided in this
Article Three; and
(vi) notwithstanding the foregoing provisions of this Section
305(c), a Successor Note of a Note that does not bear a
particular form of Securities Act legend shall not bear such
form of legend unless the Company has reasonable cause to
believe that such Successor Note is a "restricted security"
within the meaning of Rule 144, in which case the Trustee or
the Paying Agent, at the direction of the Company, shall
authenticate and deliver a new Note bearing a Restricted Notes
Legend in exchange for such Successor Note as provided in this
Article Three.
306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES
If any mutilated Note is surrendered to the Trustee or the Paying Agent, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Note and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable or is about to be redeemed or purchased by the
Company under this Indenture, the Company in its discretion may, instead of
issuing a new Note, pay, redeem or purchase such Note.
Upon the issuance of any new Note under this Section, the Company or the Trustee
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee or any agent thereof)
connected therewith.
Every new Note issued pursuant to this Section in lieu of any destroyed, lost or
stolen Note shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Note shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Notes duly issued
hereunder. Any Note which is replaced due to destruction, loss or theft shall
cease to constitute a binding obligation of the Company and shall not be
entitled to the benefits of this Indenture.
The provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes.
307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED
Interest on any Note which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest.
Any interest (including Special Interest) on any Note which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
("DEFAULTED INTEREST") shall immediately cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such Holder, and such
56
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest on any
Note to the Person in whose name that Note (or one or more Predecessor
Notes) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Note and
the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit before the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days before the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to the Holder of each Note at his address as it appears in the Note
Register, not less than 10 days before such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to clause
(2) of this Section.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
308. PERSONS DEEMED OWNERS
In the case of each Note, before due presentment of such Note for registration
of transfer, the Company, the Trustee, each Paying Agent and any agent of the
Company or the Trustee may treat, to the extent permitted by applicable law, the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of (and premium, if any) and (subject
to Section 307) interest on such Note and for all other purposes whatsoever,
whether or not such Note be overdue, and neither the Company, the Trustee, any
Paying Agent nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
309. CANCELLATION
All Notes surrendered for payment, redemption, registration of transfer or
exchange or for credit against any Offer to Purchase pursuant to Sections 306,
1014 and 1015 or, in the case of Sections 1014 and 1015, surrendered to any
Person other than the Trustee or any Paying Agent, shall be delivered to the
Trustee or any Paying Agent and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee or any Paying Agent for cancellation any
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
57
promptly cancelled by the Trustee or such Paying Agent. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. The Trustee shall
dispose of all cancelled securities held by it as it determines or shall return
such Notes to the Company upon its request. All Notes which are redeemed
pursuant to this Indenture will forthwith be surrendered to the Trustee for
cancellation and accordingly may not be reissued or resold.
310. COMPUTATION OF INTEREST
Interest on the Notes shall be computed on the basis of a 360-day year of twelve
30-day months.
311. COMMON CODE/ISIN NUMBERS
The Company in issuing the Notes may use "common code" and/or "ISIN" numbers (if
then generally in use), and, if so, the Trustee shall use "common code" and/or
"ISIN" numbers in notices of redemption as a convenience to Holders; PROVIDED
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "common code" or "ISIN"
numbers.
312. PRESCRIPTION
Claims against the Company for the payment of principal of, or premium, if any,
or interest, Special Interest, if any, or Additional Amounts, if any, on, the
Notes will become void unless presentation for payment is made as required in
this Indenture within a period of ten years, in the case of principal or
premium, if any, or five years, in the case of interest, Special Interest, if
any, or Additional Amounts, if any, from the applicable original payment date
therefor.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
401. SATISFACTION AND DISCHARGE OF INDENTURE
Upon the request of the Company, this Indenture shall cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Notes expressly provided for herein), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either:
(A) all Notes previously authenticated and delivered (other than
(i) Notes which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii)
Notes that have been subject to defeasance under Article
Twelve) have been delivered to the Trustee or any Paying Agent
for cancellation; or
(B) all such Notes not previously delivered to the Trustee or any
Paying Agent for cancellation have become due and payable and
the Company has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient to pay and discharge the entire
indebtedness on such Notes not delivered to the Trustee or any
Paying Agent for cancellation, for principal (and premium, if
any), interest, Special Interest, if any, and Additional
Amounts, if any, to the date of such deposit (in the case of
Notes which have become due and payable) or to the Stated
Maturity or Redemption
58
Date, as the case may be, together with irrevocable
instructions from the Company directing the Trustee to apply
such funds to the payment thereof at maturity or redemption,
as the case may be; or
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, in form and substance satisfactory to the
Trustee, each stating that all conditions precedent herein provided for
relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive such
satisfaction and discharge.
402. APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE FIVE
REMEDIES
501. EVENTS OF DEFAULT
"EVENT OF DEFAULT", wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment when due of interest, or Special Interest, if
any, or Additional Amounts, if any, on the Notes and the continuance of
such default for 30 days;
(2) default in payment when due (at its Stated Maturity, upon redemption,
upon required repurchase, upon declaration, or otherwise) of the
principal of or premium, if any, on the Notes;
(3) failure by the Company or any of its Restricted Subsidiaries to comply
with (i) the covenants described under Section 801 or Section 1023 or
(ii) Section 1015 and the continuance of such failure to comply for 30
days;
(4) failure by the Company or any of its Restricted Subsidiaries to comply
with any of the covenants described under Sections 1008 through 1014,
Section 1016, Section 1017, Section 1019 or Section 1022 and the
continuance of such default for a period of 30 days after notice of
such default from the Trustee or Holders of at least 25% in principal
amount of the then Outstanding Notes;
(5) failure by the Company or any of its Restricted Subsidiaries to comply
with any of the other covenants or agreements in this Indenture and the
continuance of such default for a period of 60 days
59
after notice of such default from the Trustee or Holders of at least
25% in principal amount of the then outstanding Notes;
(6) default under any mortgage, indenture or instrument under which there
may be issued or by which there may be secured or evidenced any
Indebtedness of the Company or any of its Significant Subsidiaries
whether such Indebtedness now exists, or is created after the Issue
Date, if that default (a) is caused by a failure to pay such
Indebtedness after final maturity (a "FINAL PAYMENT DEFAULT") or (b)
results in the acceleration of the Stated Maturity of such
Indebtedness, 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 Final Payment Default or the
maturity of which has been so accelerated, aggregates E15 million
or more;
(7) failure by the Company or any of its Significant Subsidiaries to pay
judgments rendered against the Company or any of its Significant
Subsidiaries aggregating in excess of E15 million (which are not
covered by insurance as to which a claim has been submitted and the
insurer has not disclaimed coverage), which judgments are not paid,
discharged or stayed for a period of 60 days after such judgments
become final and nonappealable;
(8) failure by the Company to perform or comply with any of its material
obligations set forth in the Assignment Agreement; or the repudiation
by the Company of its obligations under the Assignment Agreement or of
any assignment, conveyance, pledge, security interest or other
encumbrance created under or pursuant to the Assignment Agreement; or
at any time the Assignment Agreement is or becomes unlawful or is not,
or ceases to be, legal, valid, binding and enforceable, ceases to be a
perfected and first priority security interest in the collateral
purported to be covered thereby in favor of the Trustee on behalf of
the Holders, or otherwise ceases to be effective, for any reason;
(9) the entry by a court of competent jurisdiction of:
(a) a decree or order for relief in respect of the Company or any
of its Significant Subsidiaries or any group of Restricted
Subsidiaries that, taken together, would constitute a
Significant Subsidiary (a "SIGNIFICANT GROUP") in an
involuntary case or proceeding under any applicable Insolvency
Law in connection with the insolvency of the Company or such
Significant Subsidiary; or
(b) a decree or order adjudging the Company or any such
Significant Subsidiary or each Restricted Subsidiary
comprising a Significant Group a bankrupt or insolvent under
any applicable Insolvency Law, or appointing a custodian,
receiver, liquidator, assignee, trustee, administrator,
administrative receiver, reconstructor, sequestrator or other
similar official of the Company or any such Significant
Subsidiary or such Restricted Subsidiaries or of any
substantial part of the property of the Company or any such
Significant Subsidiary or such Significant Group, or ordering
the winding up or liquidation of the affairs of the Company or
any such Significant Subsidiary or each Restricted Subsidiary
comprising a Significant Group, and,
in the case of both (a) and (b), 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 90 consecutive days; and
(10) the commencement by the Company or any of its Significant Subsidiaries
or each Restricted Subsidiary comprising a Significant Group of a
voluntary case or proceeding under any applicable Insolvency Law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by the Company or any such Significant
60
Subsidiary or such Restricted Subsidiaries to the entry of a decree or
order for relief in respect of the Company or any such Significant
Subsidiary or such Restricted Subsidiaries in an involuntary case or
proceeding under any applicable Insolvency Law or to the commencement
of any bankruptcy or insolvency case or proceeding against the Company
or any such Significant or the Restricted Subsidiaries comprising a
Significant Group, or the filing by the Company or any such Significant
Subsidiary or such Restricted Subsidiaries of a petition or answer or
consent seeking reorganization, rehabilitation or relief under any
applicable Insolvency Law, or the consent by the Company or any such
Significant Subsidiary or such Restricted Subsidiaries to the filing of
such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, administrator,
administrative receiver, reconstructor, sequestrator or similar
official of the Company or any such Significant Subsidiary or such
Restricted Subsidiaries or of any substantial part of the property of
the Company or any such Significant Subsidiary or a Significant Group,
or the seeking or making by the Company or any such Significant
Subsidiary or the Restricted Subsidiaries comprising a Significant
Group of a composition with its creditors, an assignment for the
benefit of creditors generally, or the admission by the Company or any
such Significant Subsidiary or each Restricted Subsidiary comprising a
Significant Group in writing of its inability to pay its debts
generally as they become due; and
(11) the enforcement under or pursuant to any pledge, assignment or
collateral assignment of, or other security interest in, the Share
Capital of ▇▇▇▇▇▇ Griesheim, given in respect of the Senior Facilities,
by any party secured thereby pursuant to which such Share Capital is
sold.
502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT
(1) If an Event of Default (other than an Event of Default specified in
Section 501(9) or Section 501(10) or Section 501(11)) occurs and is
continuing, then and in every such case the Trustee or the Holders of
at least 25% in aggregate principal amount of the then Outstanding
Notes may declare the principal amount of all Notes to be due and
payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such
principal and any accrued interest and any other amounts due thereon
shall become immediately due and payable. If an Event of Default
specified in Section 501(9) or Section 501(10) occurs with respect to
the Company, then the principal of and any accrued interest and any
other amounts due on the Notes then Outstanding shall IPSO FACTO become
immediately due and payable without any declaration, notice or other
Act on the part of the Trustee or any Holder. If an Event of Default
specified in Section 501(11) occurs, then the principal of and any
accrued interest and any other amounts due on the Notes then
Outstanding shall IPSO FACTO become due and payable immediately prior
to the sale of such Share Capital without any declaration, notice or
other Act on the part of the Trustee or any Holder.
(2) At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of such Outstanding
Notes, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest on such Outstanding Notes;
(ii) the unpaid principal of (and premium, if any, on) any
such Notes which have become due otherwise than by
such declaration of acceleration (including any such
Notes required to have been purchased on the Purchase
Date pursuant to an Offer to Purchase made by the
Company) and, to the extent that payment of such
interest is lawful, interest thereon at the rate
provided by such Notes;
61
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate
provided by such Notes;
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel;
(b) all Defaults and Events of Default, other than the non-payment
of the principal of such Notes which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 513; and in the event of the cure or
waiver of a Default or Event of Default of the type described
in Section 501(9) or Section 501(10), the Trustee shall have
received an Officers' Certificate and Opinion of Counsel that
such Default or Event of Default has been cured or waived;
(c) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and
(d) the Company shall have paid the Trustee its reasonable
compensation and reimbursed the Trustee for its reasonable
expenses, disbursements and advances.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE
The Company covenants that if
(1) default is made in the payment of any interest on any Note when such
interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any,
on) any Note at the Stated Maturity thereof or, with respect to any
Note required to have been purchased pursuant to an Offer to Purchase
made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Notes, the whole amount then due and payable on
such Notes for principal (and premium, if any) and interest and any other
amounts due thereon, if any, and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate provided by such Notes, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts immediately upon such demand, the
Trustee, in its own name and as trustee of an express trust may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders 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
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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 Trustee shall not be bound to institute any proceedings or take any other
actions described in the two preceding paragraphs of this Section 503 unless (a)
it shall have been so directed by the Holders of a majority in aggregate
principal amount of the Outstanding Notes pursuant (and subject) to Section 512
and (b) it shall have received an indemnity satisfactory to it against the
costs, expenses, and liabilities to be incurred in compliance with such
direction.
504. TRUSTEE MAY FILE PROOFS OF CLAIM
In case of any judicial proceeding relative to the Company (or any other obligor
upon the Notes), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES
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 or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought, in its own name, as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amount due to the
Trustee under Section 607, be for the ratable benefit of the Holders of the
Notes in respect of which such judgment has been recovered.
506. APPLICATION OF MONEY COLLECTED
Any money collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due to the Trustee
under Section 607;
SECOND: to the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest,
Special Interest, if any, Additional Amounts, if any
and any other amounts due on such Notes in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on
such Notes for principal (and
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premium, if any) and interest, Special Interest if
any, Additional Amounts, if any, and any other
amounts due, respectively; and
THIRD: the balance, if any, to the Company (without
prejudice to, or liability in respect of, any
question as to how such payment to the Company shall
be dealt with as between the Company and any other
Person) or to such party as a court of competent
jurisdiction shall direct in writing.
507. LIMITATION ON SUITS
No Holder of any Note shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee an indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Notes,
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST
Notwithstanding any other provision in this Indenture, the Holder of any Note
shall have the right, which is absolute and unconditional, to receive payment of
the principal of (and premium, if any) and (subject to Section 307) interest on,
or any other amounts payable under, such Note on the respective Stated
Maturities applicable to such Note (or, in the case of redemption, on the
Redemption Date or, in the case of an Offer to Purchase made by the Company and
required to be accepted as to such Note, on the Purchase Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
509. RESTORATION OF RIGHTS AND REMEDIES
If the Trustee or any Holder has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder then, and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
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510. RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 306,
no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
511. DELAY OR OMISSION NOT WAIVER
No delay or omission of the Trustee or of any Holder of any Note to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
512. CONTROL BY HOLDERS
Subject to Section 503, the Holders of a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee (without any liability on its part)
PROVIDED that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
513. WAIVER OF PAST DEFAULTS
The Holders of not less than a majority in principal amount of the Outstanding
Notes may, on behalf of the Holders of all of the Notes, waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or interest or
any other amounts due on any such Note (including any Note which is
required to have been purchased pursuant to an Offer to Purchase which
has been made by the Company), or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
such Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
514. 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, suffered or omitted by it
as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act; PROVIDED, that neither this Section nor the Trust Indenture Act shall be
deemed to authorize any court to require such an undertaking
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or to make such an assessment in any suit instituted by the Company, the
Trustee, any Holder or group of Holders, holding in the aggregate more than 10%
in principal amount of the Outstanding Notes, or any Holder for the enforcement
of the payment of the principal of (or premium, if any) or interest or any other
amounts due on any Note on or after the respective Stated Maturities expressed
in such Note (or in the case of redemption, on or after the Redemption, on or
after the Redemption Date or in the case of an Offer to Purchase made by the
Company and required to be accepted as to such Note, on the Purchase Date).
515. WAIVER OF STAY OR EXTENSION LAWS
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power or right herein granted to the Trustee or the Holders, but will suffer and
permit the execution of every such power or right as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
601. CERTAIN DUTIES AND RESPONSIBILITIES
The duties and responsibilities of the Trustee shall include those provided by
the Trust Indenture Act and those set forth in this Indenture. Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it, it being understood and agreed that the Trustee
shall not be required to advance its own funds in connection with its duties and
responsibilities as Trustee. Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
The Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
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 to the requirements of this Indenture
(but need not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
The Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the Holders of
a majority in principal amount of the Outstanding Notes of any series,
determined as provided in Sections 101, 104 and 512, relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Notes of such series.
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Each beneficial owner of an interest in the Notes authorizes the Trustee to
execute the Ancillary Agreements in the forms attached hereto as Exhibits I, II
and III.
602. NOTICE OF DEFAULTS
Within 60 days after a Responsible Officer in the Corporate Trust Office of the
Trustee has been notified in accordance with Section 105 hereof of the
occurrence of any Default hereunder, the Trustee shall transmit by mail to each
Holder affected by such event, at his address as it appears in the Note
Register, notice of such Default hereunder unless such Default shall have been
cured or waived; PROVIDED, HOWEVER, that in the case of any Default of the
character specified in Section 501(5) and (7), no such notice to Holders shall
be given until at least 30 days after the occurrence thereof.
603. CERTAIN RIGHTS OF TRUSTEE
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper
party or parties, whether such document is in original or
facsimile form;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request and any
resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
before 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, rely
upon an Officers' Certificate or an Opinion of Counsel;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the
Trustee security or an indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its sole and absolute discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit at the sole cost of the Company and shall incur
no liability or additional liability of any kind by reason of
such inquiry or investigation except for liability resulting
from the Trustee's willful misconduct, and, if the Trustee
shall determine to make such further inquiry or
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investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Indenture, except in case of negligence or bad faith;
(i) 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;
(j) 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 to
each agent, custodian and other Person employed to act
hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person as so authorized
in any such certificate previously delivered and not
superseded.
604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application by
the Company of Notes or the proceeds thereof.
605. MAY HOLD NOTES
The Trustee, any Authenticating Agent, any Paying Agent, the Note Registrar or
any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Notes and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other
agent.
606. MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company in writing.
607. COMPENSATION AND REIMBURSEMENT
The Company agrees:
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(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as the parties shall agree in writing
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) to pay the reasonable fees and expenses of the Trustee's counsel in
connection with reviewing, revising, executing and delivering this
Indenture and related documentation on the date of execution hereof,
and upon executing any amendments or supplements hereto;
(3) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture or the Assignment
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(4) to indemnify the Trustee (which, for the purposes of this Section 607,
shall include the Trustee's directors, officers, employees and agents)
for, and to hold it harmless against, any loss, liability, cost, claim
or expense including taxes (other than taxes based on the income of the
Trustee) incurred without negligence or bad faith on its part, arising
out of (directly or indirectly) or in connection with the acceptance or
administration of this trust and the performance of any duty or
obligation imposed upon it herein or by reason of the issuance of the
Notes, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
(5) The Trustee shall have a lien prior to the Notes to all property and
funds held by it hereunder for any amount owing it or any predecessor
Trustee pursuant to this Section 607, except with respect to funds held
in trust for the benefit of the Holders of particular Notes.
(6) When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(9) or Section 501(10), the
expenses (including the reasonable charges and expenses of its counsel)
and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section 607 shall survive the termination of
this Indenture and the resignation or removal of the Trustee.
608. DISQUALIFICATION; CONFLICTING INTERESTS
If the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such conflicting
interest within 90 days, apply to the Commission for permission to continue as
trustee in respect of the Notes or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and this
Indenture.
609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY
There shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and has an office in the Borough of
Manhattan, The City of New York. If such Person publishes reports of condition
at least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any
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time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee under Section
611.
(2) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(3) The Trustee may be removed at any time on at least 30 days' prior
notice by Act of the Holders of a majority in principal amount of the
Outstanding Notes, delivered to the Trustee and to the Company.
(4) If at any time:
(a) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months,
or
(b) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property
or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, any Holder who has
been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of removal, the retiring
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee
shall be appointed by Act of the Holders of a majority in principal
amount of the Outstanding Notes delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, immediately
upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no
successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided,
any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
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(6) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders
in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust
Office.
611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In case any of the
Notes shall not have been authenticated by such predecessor Trustee, any
successor Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such cases
such certificates shall have the full force and effect which this Indenture
provides for the certificate of authentication of the Trustee; PROVIDED HOWEVER
that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Notes in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Notes), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
614. APPOINTMENT OF AUTHENTICATING AGENT
The Trustee may appoint an Authenticating Agent or Authenticating Agents which
shall be authorized to act on behalf of the Trustee to authenticate Notes issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Notes so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder.
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Wherever reference is made in this Indenture to the authentication and delivery
of Notes by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America or any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority in respect of an Authenticating Agent in the
United States. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof
to the Trustee and to the Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Note Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Notes may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
THIS IS ONE OF THE NOTES DESCRIBED IN THE WITHIN-MENTIONED INDENTURE.
THIS NOTE IS DULY AUTHENTICATED WITHOUT RECOURSE, WARRANTY OR
LIABILITY.
THE BANK OF NEW YORK
Dated:
-----------------------
By ,
--------------------------
As Trustee
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By ,
--------------------------
As Authenticating Agent
By ,
--------------------------
Authorized Signatory
615. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY
Any application by the Trustee for written instructions from the Company may, at
the option of the Trustee, set forth in writing any action proposed to be taken
or omitted by the Trustee under this Indenture and the date on and/or after
which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless before taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in
response to such application specifying the action to be taken or omitted.
616. APPOINTMENT OF CO-TRUSTEE
It is the purpose of this Indenture that there shall be no violation of any law
of any jurisdiction (including particularly the law of the State of New York)
denying or restricting the right of banking corporations or associations to
transact business as trustee in such jurisdiction. It is recognized that in case
of litigation under this Indenture or the Agreement, and in particular in case
of the enforcement thereof on default, or in the case the Trustee deems that by
reason of any present or future law of any jurisdiction it may not exercise any
of the powers, rights or remedies herein granted to the Trustee or hold title to
the properties, in trust, as herein granted or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an individual or institution as a separate or co-trustee. The
following provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an additional individual or institution
as a separate or co-trustee, each and every remedy, power, right, claim, demand,
cause of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by or vested in or conveyed to the
Trustee with respect thereto shall be exercisable by and vest in such separate
or co-trustee but only to the extent necessary to enable such separate or
co-trustee to exercise such powers, rights and remedies, and only to the extent
that the Trustee by the laws of any jurisdiction (including particularly the
State) is incapable of exercising such powers, rights and remedies and every
covenant and obligation necessary to the exercise thereof by such separate or
co-trustee shall run to and be enforceable by either of them.
Should any instrument in writing from the Company be required by the separate or
co-trustee so appointed by the Trustee for more fully and certainly vesting in
and confirming to him or it such properties, rights, powers, trusts, duties and
obligations, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Company; provided, that if an Event
of Default shall have occurred and be continuing, if the Company do not execute
any such instrument within fifteen (15) days after request therefor, the
Trustees shall be empowered as an attorney-in-fact for the Company to execute
any such instrument in the Company's name and stead. In case any separate or
co-trustee or a successor to either shall die, become incapable of acting,
resign or be removed, all the estates, properties, rights, powers, trusts,
duties and obligations of such separate or co-trustee, so far as permitted by
law, shall vest
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in and be exercised by the Trustee until the appointment of a new trustee or
successor to such separate or co-trustee.
Every separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(i) all rights and powers, conferred or imposed upon the Trustee
shall be conferred or imposed upon and may be exercised or
performed by such separate trustee or co-trustee; and
(ii) No trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder.
Any notice, request or other writing given to the Trustee shall be deemed to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article.
Any separate trustee or co-trustee may at any time appoint the Trustee as its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successors trustee.
617. ASSIGNMENT OF RIGHTS, NOT ASSUMPTION OF DUTIES.
Anything herein contained to the contrary notwithstanding, (a) the Company shall
remain liable under each of the Ancillary Agreements to which it is a party to
the extent set forth therein to perform all of its duties and obligations
thereunder to the same extent as if this Indenture had not been executed, (b)
the exercise by the Trustee or the Holders of any of their rights, remedies or
powers hereunder shall not release the Company from any of its duties or
obligations under each of the Ancillary Agreements to which it is a party and
(c) neither the Holders nor the Trustee shall have any obligation or liability
under any of the Ancillary Agreements to which the Company is a party by reason
of or arising out of this Indenture, nor shall the Holders or the Trustee be
obligated to perform any of the obligations or duties of the Company thereunder
or, except as expressly provided herein with respect to the Trustee, to take any
action to collect or enforce any claim for payment assigned thereunder or
otherwise.
618. LIMITATION ON DUTY OF TRUSTEE IN RESPECT OF THE ANCILLARY AGREEMENTS.
The Trustee shall not be responsible for filing any financing or continuation
statements or recording any documents or instruments in any public office at any
time or times or otherwise perfecting or maintaining the perfection of any
security interest granted in any Ancillary Agreement.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS
The Company will furnish or cause to be furnished to the Trustee:
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(1) semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such date, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days before the
time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS
(1) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity
as Note Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(2) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee shall be as provided by
the Trust Indenture Act.
(3) Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to the names and addresses of Holders
made pursuant to the Trust Indenture Act.
703. REPORTS BY TRUSTEE
(1) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(2) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which
the Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Notes are listed on any stock
exchange (and provide the address of such stock exchange) or delisted
therefrom.
704. OFFICERS' CERTIFICATE WITH RESPECT TO CHANGE IN INTEREST RATES
Within five days after any Step-Up or subsequent Step-Up or Step-Down Date, the
Company shall deliver an Officers' Certificate to the Trustee stating the
interest rate thereupon in effect for the Outstanding Notes (if any are
Outstanding) and the date on which such rate became effective.
ARTICLE EIGHT
MERGER, CONSOLIDATION, SALE OF ASSETS, TRANSFER OR LEASE
801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS
The Company may not, directly or indirectly: (1) merge or consolidate with or
into another Person (whether or not the Company is the surviving corporation);
or (2) sell, assign, transfer, lease, convey, demerge or otherwise dispose of
(or cause or permit any Restricted Subsidiary of the Company to sell, assign,
transfer,
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lease, convey or otherwise dispose of) all or substantially all of the Company's
properties and assets (determined on a consolidated basis for the Company and
the Company's Restricted Subsidiaries), in one or more related transactions, to
another Person unless:
(1) either (a) the Company is the surviving corporation or (b) the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or which acquires by sale, assignment, transfer, lease,
conveyance, demerger or other disposition the properties and assets of
the Company and of the Company's Restricted Subsidiaries substantially
as an entirety (the "RECEIVING ENTITY") (i) is a corporation or
partnership organized and validly existing under the laws of the
Republic of Germany, the United States (or any state thereof or the
District of Columbia), Switzerland or any Member State of the European
Union (as comprised on the Issue Date) other than Greece and (ii)
expressly assumes all the obligations of the Company under the Notes,
this Indenture, the Registration Rights Agreement and each of the
Ancillary Agreements;
(2) immediately after giving effect to such transaction and the assumption
contemplated by clause (1) above (including giving effect to any
Indebtedness (including, without limitation, Acquired Indebtedness)
incurred or anticipated to be incurred in connection with or in respect
of such transaction), on a pro forma basis the Company or such
Receiving Entity, as the case may be, either (a) will be able to incur
at least E1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in the first paragraph of Section
1008 or (b) have a Fixed Charge Coverage Ratio at least equal to the
Fixed Charge Coverage Ratio of the Company for the applicable period
immediately before giving effect to such transaction;
(3) immediately after giving effect to such transaction and the assumption
contemplated by clause (1) above (including, without limitation, on a
pro forma basis giving effect to any Indebtedness (including, without
limitation, Acquired Indebtedness) incurred or anticipated to be
incurred and any Lien granted in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred or be
continuing;
(4) immediately after giving effect to such transaction, the Company or the
Receiving Entity is able to make payments on the Notes without being
obligated to deduct or withhold any taxes or other duties of whatever
nature levied by the country or countries in which the Company or the
Receiving Entity, as applicable, has its domicile or tax residence that
would result in the Company or Receiving Entity, as applicable, being
permitted to redeem the Notes pursuant to Section 1018; and
(5) the Company (if the surviving entity) or the Receiving Entity, as the
case may be, shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such merger or
consolidation, or such sale, assignment, transfer, lease, conveyance,
demerger or other disposition, as the case may be, and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with the applicable provisions of
this Indenture and that all conditions precedent in this Indenture
relating to such transaction have been satisfied,
provided, however, that the foregoing clause (2) will not be applicable to (i)
any Restricted Subsidiary of the Company consolidating with, merging into or
transferring all or part of its properties and assets to the Company or any
Wholly-Owned Restricted Subsidiary of the Company and (ii) the Company merging
with a corporate Affiliate of the Company organized solely for the purpose and
with the sole effect of reincorporating the Company in another jurisdiction in
the U.S., Switzerland or a Member State of the European Union (as comprised on
the Issue Date) other than Greece.
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802. SUCCESSOR SUBSTITUTED
In the event of any transaction (other than a lease) described in and complying
with the conditions listed in the immediately preceding paragraph in which the
Company, as the case may be, is not the surviving entity and the surviving
entity is to assume all the obligations of the Company under the Notes and this
Indenture pursuant to a supplemental indenture and the Registration Rights
Agreement, such surviving person shall succeed to, and be substituted for, and
may exercise every right and power of the Company, as the case may be, and the
Company shall be discharged from its Obligations under this Indenture and the
Notes.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form and substance satisfactory
to the Trustee, for any of the following purposes:
(1) to provide for the assumption of the Company's obligations to Holders
of Notes in the case of a merger or consolidation or sale or other
disposition of all or substantially all of the Company's assets; or
(2) to make any change that would provide any additional rights or benefits
to the Holders of Notes or that does not adversely affect the legal
rights under this Indenture of any such Holder; or
(3) to secure or Guarantee the Notes; or
(4) to comply with any requirements of the Commission in order to effect
and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to provide for uncertificated notes in addition to or in place of
certificated notes; or
(6) to cure any ambiguity, mistake or defect or to correct or to supplement
any provision herein which may be inconsistent with any other provision
herein; or
(7) to provide for Exchange Notes or Additional Notes, provided that such
Additional Notes may otherwise be issued in compliance with Section
1008 hereof; or
(8) to modify the restrictions on and procedures for resales and other
transfers of this Note to reflect any change in applicable law or
regulation (or the interpretation thereof) or in practices relating to
the resale or transfer of restricted securities generally, provided
that such action shall not adversely affect the interests of Holders in
any material respect.
902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Notes by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying or amending in any manner the
rights of the Holders under this Indenture
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(including consents obtained in connection with a purchase of, or tender offer
or exchange offer for, Notes); PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Note
affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of interest (including Special Interest) or
Additional Amounts on, any Note, or reduce the principal
amount thereof or the rate of interest (including Special
Interest) thereon or Additional Amounts or any premium payable
thereon, or change the time of payment where, or the coin or
currency in which, any Note or any premium or interest
(including Special Interest) thereon or Additional Amounts is
payable, or modify the rights of Holders to receive any such
payment or impair the right to institute suit for the
enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after
the Redemption Date or, in the case of an Offer to Purchase
which has been made, on or after the applicable Purchase
Date);
(b) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(c) modify any of the provisions of Section 513, except to
increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Note
affected thereby;
(d) waive a redemption payment with respect to any Note (other
than a payment required by Section 1014 or Section 1015) or
alter the provisions of this Indenture or the Notes with
respect to the redemption of the Notes (other than provisions
relating to the redemption of Notes at the option of the
Company);
(e) after the Company's obligation to purchase Notes arises under
the Indenture with respect to a Change of Control or an Asset
Sale, amend, change or modify the obligation of the Company to
make and consummate such Change of Control Offer in the event
of a Change of Control or make and consummate an Asset Sale
Offer with respect to such Asset Sale or waive any default in
the performance thereof or modify any of the provisions or
definitions with respect to any such offers;
(f) modify or change any provision of this Indenture or the
related definitions affecting the subordination or ranking of
the Notes in any case in a manner which adversely affects the
Holders;
(g) amend or modify the provisions of Section 1018 or the
corresponding provisions of the Notes in any manner adverse to
the Holder; or
(h) make any change in this Section 902.
It shall not be necessary for any Act of Holders under this Section to approve
the particular form of any proposed supplemental indenture or waiver, but it
shall be sufficient if such Act shall approve the substance thereof.
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903. EXECUTION OF SUPPLEMENTAL INDENTURES
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
904. EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes previously or thereafter authenticated and delivered hereunder shall be
bound thereby.
905. CONFORMITY WITH TRUST INDENTURE ACT
Every supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act as then in effect.
906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE TEN
COVENANTS
1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST
The Company will duly and punctually pay the principal of (and premium, if any)
and interest and any other amounts due on the Notes in accordance with the terms
of the Notes and this Indenture.
1002. MAINTENANCE OF OFFICE OR AGENCY
The Company will maintain (i) in the Borough of Manhattan, The City and State of
New York, (ii) in London, England, or in Frankfurt am Main, Germany, or in any
other money-center city in the European Union or Switzerland, and (iii) for so
long as the Notes shall be listed on the Luxembourg Stock Exchange, in
Luxembourg, an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
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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 as required by the immediately
preceding paragraph. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any
such other office or agency.
1003. MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST
The Company shall not at any time act as its own Paying Agent.
The Company shall, before 10:00 a.m. (London time), on each due date of the
principal of (and premium, if any) or interest or any other amounts due on any
Notes, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest or any other amounts due so becoming due, such sum
to be held in trust by such Paying Agent for the benefit of the Persons entitled
to such principal, premium or interest or any other amounts due, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
and the Paying Agent of its action or failure so to act.
The Company shall before 10:00 a.m. (London time) on the second Business Day
prior to the day on which it makes payment to the Paying Agent procure that the
bank effecting payment for it confirms by tested telex or SWIFT MT 100 message
to the Paying Agent the payment instruction relating to such payment.
The Company will cause each Paying Agent other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will:
(a) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest or any other amounts due on
Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of
principal (and premium, if any) or interest or any other
amounts due on the Notes; and
(c) at any time during the continuance of any such default, upon
the written request of the Trustee, immediately pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Request
direct any Paying Agent to pay, to the Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent in trust for the
payment of the principal of (and premium, if any) or interest or any other
amounts due on any Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest or any other amount due has become
due and payable shall be paid to the Company on Company Request; and the Holder
of such Note shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a leading newspaper having a general circulation in New York
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City (which is expected to be the WALL STREET JOURNAL), a leading newspaper
having a general circulation in London (which is expected to be the FINANCIAL
TIMES), a leading newspaper having a general circulation in Frankfurt (which is
expected to be HANDELSBLATT) and, if the Notes are listed on the Luxembourg
Stock Exchange and the rules of such Stock Exchange so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
LUXEMBURGER WORT), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
1004. EXISTENCE
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; PROVIDED, HOWEVER, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
1005. MAINTENANCE OF PROPERTIES
The Company shall cause all properties used or useful in the conduct of its
business or the business of any Restricted Subsidiary of the Company to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this clause shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is desirable in the conduct of its business or the business of
any Restricted Subsidiary and not disadvantageous in any material respect to the
Holders, in each as determined in good faith by senior management of the Company
or, if such properties have a fair market value in excess of E5 million, by
the Company's Board of Directors and evidenced by a resolution of such Board of
Directors.
1006. PAYMENT OF TAXES AND OTHER CLAIMS
The Company shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Restricted Subsidiaries
or upon the income, profits, property, business or trade of the Company or any
of its Restricted Subsidiaries, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any of its Restricted Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
1007. MAINTENANCE OF INSURANCE
The Company shall, and shall cause its Restricted Subsidiaries to, keep
insurance with insurers believed by the Company to be responsible of such type
and in such amounts as the Company reasonably believes are customary for similar
companies.
1008. LIMITATION ON INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED
SHARE CAPITAL AND PREFERRED SHARES
The Company will not, and will not permit any of its Restricted Subsidiaries
toincur any Indebtedness (including Acquired Debt) or any Disqualified Share
Capital and the Company will not permit any of its Restricted Subsidiaries to
issue any Preferred Shares; provided, however, that the Company may incur
81
Indebtedness or issue Disqualified Share Capital, and any Restricted Subsidiary
may incur Indebtedness that constitutes Acquired Debt or Eligible Indebtedness,
and any Restricted Subsidiary may issue Eligible Preferred Shares, in each case
if the Company's Fixed Charge Coverage Ratio, for the applicable four-quarter
period of the Company, immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Share Capital or such Preferred
Shares are issued, is at least 2.0 to 1.0, in each case 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 Share
Capital or Preferred Shares had been issued, as the case may be, at the
beginning of the applicable four-quarter period.
The first paragraph of this Section will not prohibit the incurrence of any of
the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Company and its Restricted Subsidiaries
of Indebtedness under the Senior Facilities (including letter
of credit obligations) in an aggregate principal amount at any
time outstanding not to exceed:
(a) E1,340,000,000 (or the euro equivalent of other
currencies) with respect to the Indebtedness under
the term loan facilities thereunder, less the amount
of all mandatory principal payments made by the
Company or its Restricted Subsidiaries in respect of
such term loan facilities, unless such amount has
been refinanced on the date of such payment (but
subject to reduction to the extent of any subsequent
mandatory payments in respect of such refinanced
Indebtedness); provided that principal payments on
such term loan facilities with the proceeds of the
loan under the High Yield Proceeds Loan Agreement in
an amount up toE115,000,000 will be deemed to be
mandatory principal payments for purposes of the
foregoing;
(b) E260,000,000 (or the euro equivalent of other
currencies) with respect to Indebtedness under the
revolving credit facilities thereunder (with letters
of credit and bank guarantees being deemed to have a
principal amount equal to the maximum potential
liability of the Company and its Restricted
Subsidiaries thereunder or in respect thereof), and
reduced by any required permanent repayments (which
are accompanied by a corresponding permanent
commitment reduction) thereunder, unless the amount
so repaid has been refinanced on the date of such
repayment (but subject to reduction to the extent of
any subsequent permanent repayments (which are
accompanied by a corresponding permanent commitment
reduction) in respect of such refinanced
Indebtedness); and
(c) E50,000,000 (or the euro equivalent of other
currencies) with respect to other Indebtedness
thereunder (with letters of credit and bank
guarantees being deemed to have a principal amount
equal to the maximum potential liability of the
Company and its Restricted Subsidiaries thereunder or
in respect thereof) less (i) if such Indebtedness is
under a revolving credit facility, the aggregate
amount of any required permanent repayments (which
are accompanied by a corresponding permanent
commitment reduction) thereunder, unless the amount
so repaid has been refinanced on the date of such
repayment (but subject to reduction to the extent of
any subsequent permanent repayments (which are
accompanied by a corresponding permanent commitment
reduction) in respect of such refinanced
Indebtedness) and (ii) if such Indebtedness is under
a term loan facility, the aggregate amount of all
mandatory principal payments made by the Company or
its Restricted Subsidiaries in respect of such term
loan facilities, unless the amount so repaid has been
refinanced on the date of such payment (but subject
to reduction to the extent of any subsequent
mandatory payments in respect of such refinanced
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Indebtedness); provided, however, that any amount
borrowed under such facilities shall be applied only
to finance or refinance Non-Indemnified
Unconsolidated Debt, except that an amount up to the
then available Excess Facility II Amount may be
applied by ▇▇▇▇▇▇ Griesheim and its Restricted
Subsidiaries for any purpose not otherwise prohibited
by this Indenture;
(2) the incurrence by any of the Company's Restricted Subsidiaries
of Indebtedness to the extent such Indebtedness is Guaranteed
by a bank guarantee under the Senior Facilities which is
permitted by clause (1) above; provided, that if such
Indebtedness shall cease to be so Guaranteed, such Restricted
Subsidiary will be deemed to have incurred, at the time of
such cessation, Indebtedness that was not permitted by this
clause (2);
(3) the incurrence by the Company and its Restricted Subsidiaries
of Existing Indebtedness;
(4) the incurrence by the Company of Indebtedness represented by
the Notes and the Exchange Notes;
(5) the incurrence by the Company and its Restricted Subsidiaries
of Indebtedness represented by Capital Lease Obligations,
mortgage financings or purchase money obligations of the
Company or such Restricted Subsidiary, in an aggregate
principal amount not to exceed E25 million at any time
outstanding;
(6) the incurrence by the Company and its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the
net proceeds of which are used to refund, refinance or
replace, Indebtedness (other than intercompany Indebtedness
between or among the Company and any of its Restricted
Subsidiaries) that was permitted by this Indenture to be
incurred under the first paragraph of this Section or clauses
(3) or (4) of this paragraph or this clause (6);
(7) 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 (a) if the Company is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated
to the prior payment in full in cash of all Obligations with
respect to the Notes, and (b) (i) any subsequent issuance or
transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or
a Restricted Subsidiary thereof and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not
either the Company or a Restricted Subsidiary thereof, will be
deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as
the case may be, that was not permitted by this clause (7);
(8) the incurrence by the Company or any Restricted Subsidiary of
Hedging Obligations; provided, however, that (i) any such
Interest Swap Obligations are entered into to protect such
Person or its subsidiaries from fluctuations in interest rates
of its Indebtedness which is permitted by the terms of this
Indenture to be outstanding and (ii) any such Commodity
Agreements or Currency Agreements are entered into in the
ordinary course of business for bona fide hedging purposes or
to manage liabilities of the Company or its Restricted
Subsidiaries and not for speculative purposes;
(9) the Guarantees of any Indebtedness permitted to be incurred by
another provision of this covenant; provided, however, that no
Restricted Subsidiary of the Company may Guarantee
83
Indebtedness of the Company which is other than Eligible
Indebtedness or Acquired Debt unless such restricted
Subsidiary shall have complied with Section 1017;
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness in respect of letters of credit
to support workers' compensation obligations, performance
bonds, completion guarantees, bankers' acceptances and surety
or appeal bonds, in each case provided by the Company or any
of its Restricted Subsidiaries in the ordinary course of their
business;
(11) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness arising from agreements of the
Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety
bonds or performance bonds securing any such obligations of
the Company or any of its Restricted Subsidiaries pursuant to
such agreements, in each case incurred in connection with the
disposition of any business assets or Restricted Subsidiaries
of the Company (other than Guarantees of Indebtedness or other
obligations incurred by any Person acquiring all or any
portion of such business assets or Restricted Subsidiaries of
the Company for the purpose of financing such acquisition) in
a principal amount not to exceed the gross proceeds actually
received by the Company or any of its Restricted Subsidiaries
in connection with such disposition;
(12) the incurrence by the Company or any of its Restricted
Subsidiaries of Indebtedness incurred pursuant to Permitted
Discounting Facilities;
(13) the incurrence by the Company or any Restricted Subsidiary of
Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the ordinary
course of business; PROVIDED, HOWEVER, that such Indebtedness
is extinguished within four business days of incurrence; and
(14) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any
time outstanding, not to exceed E100 million.
For purposes of determining compliance with any euro-denominated restriction on
the incurrence of Indebtedness denominated in another currency, the
euro-equivalent principal amount of all Indebtedness will be calculated based on
the relevant currency exchange rate in effect on such date; provided that, if
any Indebtedness denominated in a currency other than euro is subject to a
currency hedging agreement covering all principal, premium, if any, and interest
payable on such Indebtedness, the amount of such Indebtedness expressed in euro
will be as provided in such currency hedging agreement. The principal amount of
any Indebtedness incurred to refinance other Indebtedness, if incurred in a
different currency from the Indebtedness being refinanced, will be calculated
based on the currency exchange rate in effect on the date of such refinancing
applicable to the currencies in which such respective Indebtedness is
denominated.
Notwithstanding any other provision of this covenant, the maximum amount of
Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to
this covenant shall not be deemed to be exceeded as a result of fluctuations in
the exchange rate of currencies.
For purposes of determining compliance with this covenant, (a) the outstanding
principal amount of any particular Indebtedness shall be counted only once and
any obligation arising under any Guarantee, Lien, letter of credit or similar
instrument supporting such Indebtedness shall be disregarded to the extent of
such outstanding principal amount and (b) in the event that an item of
Indebtedness meets the criteria of more than
84
one of the categories of Permitted Debt described in clauses (1) through (14)
above or is entitled to be incurred pursuant to the first paragraph of this
covenant, the Company shall, in its sole discretion, classify or, from time to
time, reclassify such item of Indebtedness in any manner that complies with this
covenant and such item of Indebtedness will be treated as having been incurred
pursuant to only one of such clauses or pursuant to the first paragraph hereof,
PROVIDED that (i) all outstanding Indebtedness under the Senior Facilities
immediately following the Issue Date shall be deemed to have been incurred
pursuant to clause (1) above. Accrual of interest, fees or commissions and the
accretion or amortization of original issue discount will not be deemed to be an
incurrence of Indebtedness for purposes of this covenant.
1009. LIMITATION ON RESTRICTED PAYMENTS AND INVESTMENTS
The Company will not, and will not cause or permit any of its Restricted
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend or make
any other payment or distribution on account of or with respect to the Company's
or any of its Restricted Subsidiaries' Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving
the Company or any of its Subsidiaries) or to the direct or indirect holders of
the Company's or any of its Restricted Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable solely in Equity
Interests (other than Disqualified Share Capital) of the Company or payable to
the Company or by a Restricted Subsidiary of the Company to another Restricted
Subsidiary of the Company); (ii) purchase, redeem or otherwise acquire or retire
for value (including, without limitation, in connection with any merger or
consolidation involving the Company or any of its Subsidiaries) any Equity
Interests of the Company or of any direct or indirect parent company of the
Company or of any Restricted Subsidiary of the Company (other than any such
Equity Interests owned by the Company or any Restricted Subsidiary of the
Company); (iii) make any principal payment on account of or with respect to, or
purchase, redeem, defease, prepay, decrease or otherwise acquire or retire for
value prior to any scheduled final maturity, scheduled repayment or scheduled
sinking fund payment any Indebtedness that is subordinated in right of payment
to the Notes; or (iv) make any Restricted Investment (all such payments and
other actions set forth, but not excluded from, in clauses (i) through (iv)
above being collectively referred to as "RESTRICTED PAYMENTS"), unless, at the
time of and immediately after giving effect to such Restricted Payment:
(1) no Default or Event of Default shall have occurred and be continuing;
and
(2) 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 of the applicable four-quarter period, have been
permitted to incur at least E1.00 of additional Indebtedness
pursuant to the first paragraph of Section 1008; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date, is less than the sum, without
duplication, of:
(a) 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 are available 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
(b) 100% of the aggregate net proceeds, including the fair market
value of property (other than Equity Interests) as determined
in good faith by the Board of Directors of the Company,
received by the Company subsequent to the Issue Date (i) as a
contribution by any Person (other than a Subsidiary of the
Company) to the Company's common equity capital, (ii) from the
issue or sale to any Person (other than a Subsidiary of the
Company) of Equity Interests
85
of the Company (other than Disqualified Share Capital) or
(iii)from the issue or sale to any Person (other than a
Subsidiary of the Company) of securities convertible into or
exchangeable for Equity Interests of the Company (other than
Disqualified Share Capital) to the extent that such securities
have been converted into or exchanged for such Equity
Interests and including any additional cash proceeds received
by the Company upon such conversion or exchange from any
Person (other than a Subsidiary of the Company), but in each
case excluding (A) any net proceeds from issuances and sales
financed directly or indirectly using funds borrowed from the
Company or any Restricted Subsidiary of the Company, until
and then only to the extent such borrowing is repaid, and (B)
any net proceeds in respect of Permitted Holding Company
Subordinated Debt which are not in the form of cash or
tangible assets or property, plus
(c) to the extent that Restricted Investments that were made after
the Issue Date are sold or otherwise liquidated or repaid,
repurchased or redeemed, the amount equal to the lesser of (i)
the aggregate of the initial amounts of such Restricted
Investments (in each case measured on the respective dates
such Restricted Investments were made and without giving
effect to subsequent changes in value) and (ii) the aggregate
amount received by the Company or its Restricted Subsidiaries
upon such sales, liquidations, repayments, repurchases to
redemptions, provided, however, that no amount shall be
included under this clause (c) to the extent it is already
included in Consolidated Net Income, plus
(d) to the extent that Restricted Investments in Persons are made
after the Issue Date pursuant to this clause (3) and such
Persons subsequently become Restricted Subsidiaries of the
Company, the amount equal to the lesser of (i) the aggregate
amount of such Restricted Investments (in each case measured
on the respective dates such Investments were made and without
giving effect to subsequent changes in value) and (ii) the
aggregate amount of such Restricted Investments owned by the
Company or its Restricted Subsidiaries at the respective times
such Persons become Restricted Subsidiaries of the Company (in
each case measured as the fair market value of such Restricted
Investments at the respective times each such Person became a
Restricted Subsidiary of the Company); plus the amount equal
to the net reduction in Restricted Investments made by the
Company or any of its Restricted Subsidiaries in any Person
resulting from the Redesignation of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as provided in
the definition of "Investment") not to exceed, in each case,
the amount of Investments previously made by the Company or
any of its Restricted Subsidiaries in such Unrestricted
Subsidiary, which amount was included in the calculation of
Restricted Payments, provided, however, that no amount shall
be included under this clause (d) to the extent it is already
included in Consolidated Net Income, plus
(e) the aggregate net cash proceeds received by a Person in
consideration for the issuance of such person's Equity
Interests (other than Disqualified Share Capital) that are
held by such Person at the time such Person is merged with and
into the Company subsequent to the Issue Date, in accordance
with Section 801 provided, however, that concurrently with or
immediately following such merger the Company uses an amount
equal to such net cash proceeds to redeem or repurchase the
Company's Equity Interests.
The preceding provisions will not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture;
86
(2) the redemption, repurchase, retirement, defeasance or other acquisition
of any subordinated Indebtedness of the Company or of any Equity
Interests of the Company or any Restricted Subsidiary in exchange for,
or out of the net cash proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of, Equity Interests of the
Company (other than Disqualified Share Capital); provided that the
amount of any such net cash proceeds that are utilized for any such
redemption, repurchase, retirement, defeasance or other acquisition
will be excluded from clause (3)(b) of the preceding paragraph;
(3) the defeasance, redemption, repurchase or other acquisition of any (A)
Indebtedness of the Company that is subordinated in right of payment to
the Notes with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness or (B) Indebtedness of the Company that is
subordinated in right of payment to the Notes (other than any
Indebtedness so subordinated and held by Affiliates of the Company)
upon a Change of Control or Asset Sale to the extent required by the
agreements governing such Indebtedness, but only (i) if the Company
shall have complied with Section 1014 or Section 1015, as the case may
be, and the Company repurchased all Notes tendered pursuant to the
offer required by such Sections prior to offering to purchase,
purchasing or repaying such Indebtedness and (ii) in the case of an
Asset Sale, to the extent of the remaining Excess Proceeds offered to
Holders pursuant to the Asset Sale Offer;
(4) the payment of any dividend or other distribution by a Restricted
Subsidiary to a minority holder of an Equity Interest in such
Restricted Subsidiary which is made on a pro rata basis to such
minority holder and to all other holders of such class of Equity
Interest of such Restricted Subsidiary at the time such dividend or
other distribution is made;
(5) the payment of cash dividends on the ordinary Share Capital of the
Company following the Public Equity Offering; provided, however, that
the aggregate amount of all such dividends under this clause (5) shall
not exceed in any calendar year 6.0% of the aggregate gross proceeds
received by the Company from such Public Equity Offering;
(6) payments by the Company to repurchase, or to enable any Holding Company
to repurchase, its Equity Interests (other than Disqualified Share
Capital of the Company or such Holding Company) from employees, former
employees, directors or former directors (or any heirs or personal
representatives of such employees, former employees, directors or
former directors) of such Holding Company, the Company or any of its
Restricted Subsidiaries in an aggregate amount not to exceed E3
million in any twelve month period; provided that payments pursuant to
this clause (6) do not exceed E15 million in the aggregate;
(7) payments, not to exceed E500,000 in the aggregate, to enable the
Company or any Holding Company to make cash payments to holders of its
Share Capital in lieu of the issuance of fractional shares of its Share
Capital;
(8) payments by the Company to fund the payment by any Holding Company of
Taxes payable by such Holding Company, provided (i) such payments are
made only as and when needed by such Holding Company and (ii) such
Taxes are attributable to the business, operations, assets or
financings (other than in respect of any Indebtedness owed to any
Holding Company) of the Company and its Restricted Subsidiaries;
(9) payments by the Company to fund the payment by any Holding Company of
audit, accounting, legal or other similar expenses and to pay other
corporate overhead expenses, provided (i) such expenses are proper and
reasonably necessary incidental expenses which are required to maintain
such Holding Company's corporate existence or are operating costs
relating to its ownership and management of the Company and its
Restricted Subsidiaries, (ii) such payments are made only as and when
needed
87
by such Holding Company and (iii) the aggregate amount of payments
pursuant to this clause (9) does not exceed E3 million in any calendar
year;
(10) payments by the Company to fund the payment by any Holding Company of
fees and related expenses payable to the Sponsors for management,
consulting or other financial advisory, financing, underwriting or
placement services or in respect of other investment banking
activities, including in connection with acquisitions or divestitures,
which payments are approved by a majority of the members of the Board
of Directors of the Company and which payments, in the aggregate, do
not exceed E3 million in any twelve month period;
(11) repurchases of Equity Interests deemed to occur upon exercise of stock
options or warrants to the extent of the payment of all or a portion of
the exercise price of such option or warrants with Equity Interests;
and
(12) other Restricted Payments not exceeding E20 million in the
aggregate plus (a) to the extent Restricted Payments made pursuant to
this clause (12) are Investments made by the Company or any Restricted
Subsidiary in any Person which are sold or otherwise liquidated or
repaid, repurchased or redeemed, the amount equal to the lesser of (i)
the aggregate amount received by the Company or its Restricted
Subsidiaries upon such sales, liquidations, repayments, repurchases or
redemptions and (ii) the aggregate of the initial amounts of such
Investments (in each case measured on the respective dates such
Investments were made and without giving effect to any subsequent
changes in value) and (b) to the extent that Restricted Investments in
Persons are made after the Issue Date pursuant to this clause (12) and
such Persons subsequently become Restricted Subsidiaries of the
Company, the amount equal to the lesser of (i) the aggregate amount of
such Investments (in each case measured on the respective dates such
Investments were made and without giving effect to subsequent changes
in value) and (ii) the aggregate amount of such Investments owned by
the Company or its Restricted Subsidiaries at the respective times such
Persons become Restricted Subsidiaries of the Company (in each case
measured as the fair market value of such Investments at the respective
times each such Person became a Restricted Subsidiary of the Company);
provided, that in the case of clauses (1), (3)(B), (5), (6), (10) and (12)
above, no Default or Event of Default shall have occurred or be continuing at
the time of such payment or as a result thereof.
In determining the aggregate amount of Restricted Payments made subsequent to
the Issue Date, amounts expended pursuant to clauses (2), (3), (8), (9) and (11)
of the preceding paragraph shall be excluded, and the amount expended pursuant
to clauses (1), (4), (5), (6), (7), (10) and (12) of the preceding paragraph
shall be included, in such calculation.
1010. LIMITATIONS ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES
The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or permit to exist or become effective any
encumbrance or restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on its Share Capital or
with respect to any other interest or participation in, or measured by,
its profits or reserves, to the Company or any of the Company's
Restricted Subsidiaries, or pay any indebtedness owed to the Company or
any of the Company's Restricted Subsidiaries;
(b) make loans or advances to the Company or any of the Company's
Restricted Subsidiaries; or
(c) transfer any of its properties or assets to the Company or any of the
Company's Restricted Subsidiaries.
88
However, the preceding restrictions will not apply to encumbrances or
restrictions existing under or by reason of:
(1) any agreement or instrument of the Company or its Restricted
Subsidiaries in existence on the Issue Date (including, without
limitation, the Senior Facilities and the High Yield Subordination
Agreement), in each case as in effect on the Issue Date;
(2) this Indenture, the Notes and the Exchange Notes;
(3) applicable law or regulation or pursuant to governmental licenses,
concessions, franchises or permits;
(4) any agreement or instrument of a Person as in effect at the time such
Person becomes a Restricted Subsidiary of the Company (except to the
extent such restriction or encumbrance was created or assumed in
connection with or in contemplation of the transaction or series of
transactions pursuant to which such Person became a Restricted
Subsidiary of the Company;) provided that, in the case of any such
agreement or instrument governing Indebtedness of such Person, such
Indebtedness was permitted by the terms of this Indenture to be
incurred;
(5) the terms of any Indebtedness permitted by this Indenture to be
incurred or any agreement pursuant to which such Indebtedness was
incurred; provided, however, that (i) either (x) the encumbrance or
restriction applies only in the event of and during the continuance of
a payment default or a default with respect to a financial covenant
contained in such Indebtedness or agreement or (y) the Company
reasonably determines at the time any such Indebtedness is incurred
(and at the time of any modification of the terms of any such
encumbrance or restriction) that any such encumbrance or restriction
will not materially affect the Company's ability to make principal or
interest payments on the Notes and (ii) the encumbrance or restriction
is not materially more disadvantageous to the Holders of the Notes than
is customary in comparable financings or agreements (as determined by
the Company in good faith);
(6) purchase money obligations (including Capital Lease Obligations) for
property acquired in the ordinary course of business that impose
restrictions on the transfer or encumbrance of the property so acquired
(or leased);
(7) with respect to any joint venture and any Restricted Subsidiary that is
co-venturer therein, the terms of the agreement or agreements governing
such joint venture; provided, however, that any such encumbrance or
restriction (i) is customary in joint venture agreements, and (ii) will
not materially affect the Company's ability to make principal or
interest payments on the Notes, as determined by the Company in good
faith at the time of entering such agreement or agreements (and at the
time of any modification of the terms of any such encumbrance or
restriction);
(8) Liens securing Indebtedness otherwise permitted to be incurred and
secured that limit the right of the Company or any of its Restricted
Subsidiaries to dispose of the assets subject to such Lien;
(9) any encumbrance or restriction (a) that restricts in a customary manner
the subletting, assignment or transfer of any property or asset that is
subject to a lease, license or similar contract or (b) by virtue of any
transfer of, agreement to transfer, option or right with respect to or
Lien on, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture;
(10) any restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of
all or substantially all of the Share Capital or assets of such
Restricted Subsidiary pending the closing of such sale or disposition;
89
(11) restrictions on cash or other deposits or net worth imposed by leases
or other agreements entered into in the ordinary course of business.
(12) any encumbrances or restrictions required by any governmental, local or
regulatory authority having jurisdiction over the Company or any of its
Restricted Subsidiaries or any of their businesses in connection with
any development grant made or other financial assistance provided to
the Company or any of its Restricted Subsidiaries by such governmental
authority; and
(13) any agreement renewing, replacing, substituting or amending any
encumbrance or restriction referred to in clauses (1) through (12)
above, provided that such agreement is otherwise permitted under this
Indenture and the terms of such agreement renewing, replacing,
substituting or amending such encumbrance or restriction are no less
favorable to the Holders of the Notes in any material respect than the
terms of the encumbrance or restriction being so renewed, replaced,
substituted or amended.
1011. LIMITATION ON LIENS
The Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien of any
kind securing Indebtedness on any property or asset now owned or hereafter
acquired, except Permitted Liens, without effectively providing that the Notes
shall be secured equally and ratably with (or prior to) the Indebtedness so
secured for so long as such Indebtedness is so secured; provided that if the
Indebtedness secured by such Lien is subordinate or junior in right of payment
to the Notes then the Lien securing such Indebtedness shall be subordinate or
junior in right of payment to the Lien securing the Notes at least to the same
extent as such Indebtedness is subordinate or junior to the Notes.
1012. PERMITTED BUSINESS
The Company will not, and will not permit any Restricted Subsidiary to, engage
in any business other than Permitted Businesses.
1013. LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Company will not, and will not permit any of its Restricted Subsidiaries to,
make any payment to, or 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 or amend any transactions, contract, agreement, understanding, loan,
advance or Guarantee with, or for the benefit of, any of its Affiliates (each,
an "AFFILIATE TRANSACTION"), unless:
(1) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that could
have been obtained in a comparable transaction at such time on an arm's
length basis by the Company or such Restricted Subsidiary with a Person
which is not an Affiliate of the Company or such Restricted Subsidiary;
and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate payments, or assets
with a fair market value, in excess of E7.5 million, a
resolution of the Board of Directors, certified in an
Officers' Certificate, resolving that such Affiliate
Transaction complies with this covenant 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 or series of related
Affiliate Transactions involving aggregate payments, or assets
with a fair market value, in excess of E25 million, an
opinion
90
as to the fairness to the Company or such Restricted
Subsidiary of such Affiliate Transaction from a financial
point of view issued by an appraisal or investment banking
firm of internationally recognized standing.
The following items will not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of the prior paragraph:
(1) the payment of reasonable fees and compensation (including, without
limitation, pursuant to collective bargaining agreements, employee
benefit plans and stock options) paid to officers, directors, employees
or consultants of the Company or any Restricted Subsidiary of the
Company as determined in good faith by the Company's Board of Directors
or senior management;
(2) any obligations of the Company or any Restricted Subsidiary under any
noncompetition or confidentiality agreement of the Company or any
Restricted Subsidiary;
(3) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans
approved by the Board of Directors of the Company;
(4) customary indemnification agreements with officers, directors,
employees or consultants of the Company or any Restricted Subsidiary of
the Company;
(5) transactions with suppliers or purchasers or sellers of goods or
services, in each case in the ordinary course of business and otherwise
in compliance with the terms of this Indenture, which are fair to the
Company or its Restricted Subsidiaries, or are on terms (taken as a
whole) at least as favorable as might reasonably have been obtained at
such time from an unaffiliated party, in each case in the reasonable
determination of the Board of Directors of the Company or its senior
management;
(6) any agreement as in effect as of the Issue Date or any renewal,
extension or amendment thereto (so long as any such renewal, extension
or amendment, taken as a whole, is not more disadvantageous to the
Holders than the original agreement in any material respect) or any
transaction contemplated thereby;
(7) the issuance or sale of Equity Interests of the Company (other than
Disqualified Share Capital);
(8) transactions exclusively between or among the Company and any of its
Restricted Subsidiaries or exclusively between or among such Restricted
Subsidiaries;
(9) transactions with a joint venture or similar entity which would
constitute an Affiliate Transaction solely because the Company or a
Restricted Subsidiary owns an equity interest in or otherwise controls
such joint venture or similar entity;
(10) any payments or other transactions pursuant to a tax sharing, pooling
or any other fiscal group or unity arrangement or agreement (whether
contractual or under operation of law or revenue or official practice
or guidelines) between the Company and any other Person with which the
Company files a consolidated tax return or with which the Company is
part of a consolidated group for tax purposes or any tax advantageous
group contribution (or tax neutral intra-group transaction,
reorganization, reconstruction, transfer or any other dealing in or
operation involving any group-held asset or liability), made pursuant
to applicable legislation;
(11) any Permitted Holding Operating Company Transfer; and transactions
between the Company or any of its Restricted Subsidiaries, on the one
hand, and any one or more Holding Operating Company,
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on the other hand, in each case on terms that are no less favorable to
the Company or the relevant Restricted Subsidiary than those that could
have been obtained in a comparable transaction at such time on an arm's
length basis by the Company or such Restricted Subsidiary with a Person
which is not an Affiliate of the Company or such Restricted Subsidiary;
and
(12) Restricted Payments (including Permitted Investments) that are
permitted by Section 1009.
1014. LIMITATION ON CERTAIN ASSET SALES; REPURCHASE AT THE OPTION OF HOLDERS
WITH EXCESS PROCEEDS
The Company will not, and will not permit any of its Restricted Subsidiaries to,
consummate an Asset Sale (other than Specified Asset Sales and Central American
Entity Disposals) unless:
(1) the Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair
market value of the assets or Equity Interests issued or sold or
otherwise disposed of;
(2) such fair market value is determined in good faith by senior management
of the Company or, if such Asset Sale involves consideration in excess
of E7.5 million, by the Company's Board of Directors and evidenced
by a resolution of such Board of Directors; and
(3) at least 75% of the consideration therefor received by the Company or
such Restricted Subsidiary is in the form of cash or Cash Equivalents
and is received at the time of such issuance, sale or disposition. For
purposes of this provision, each of the following will be deemed to be
cash:
(a) 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 contingent liabilities and
liabilities that are by their terms subordinated in right of
payment to the Notes) 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
(b) any securities, Notes or other obligations received by the
Company or any such Restricted Subsidiary from such transferee
that are (subject to ordinary settlement periods) converted by
the Company or such Restricted Subsidiary into cash (to the
extent of the cash received in that conversion) within 30 days
after receipt.
The Company will not, and will not permit its Restricted Subsidiaries to,
consummate any Asset Sale which is a Specified Asset Sale unless the
consideration for such Asset Sale is comprised of one or more of the elements
set out in clauses (i), (ii) and (iii) below but may include in addition
consideration in the form of (iv) below: (i) cash payable on the completion of
the disposal; (ii) an obligation of the purchaser of such assets to pay the
remainder of the purchase price at a date or dates no later than 3 years after
the completion of such disposal (a "DEFERRED PURCHASE OBLIGATION") (provided
that the aggregate amount of all such Deferred Purchase Obligations which have
not been paid in cash to the relevant vendor or otherwise monetarized shall at
no time exceed E100 million (or its equivalent)); and (iii) the assumption
of indebtedness by the purchaser or remaining in the asset disposed of; and (iv)
an amount of cash payable in the nature of an earn out payment by the purchaser
to the vendor of any such asset which is genuinely contingent and dependent on
the future performance or future value of the asset disposed of (which amount
shall not count towards the limits set out in clause (ii) above and in the
definition of Senior Disposal Basket); provided, however, that at the time any
such Deferred Purchase Obligation is paid in cash (or if paid or satisfied other
than in cash, at the time such other consideration is repaid or liquidated for
cash), the Company shall be deemed to have made an Asset Sale as at the time of
receipt of such cash (which Asset Sale shall be deemed to have been made in
compliance with the requirements of the first paragraph of this Section), and
shall be deemed to have received for the
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purposes of the definition of Net Proceeds cash proceeds from an Asset Sale
equal to the amount of cash so received, for all other purposes of this Section.
The Company will not, and will not permit its Restricted Subsidiaries to,
consummate an Asset Sale which is a Central American Entity Disposal unless: (i)
such disposal is made on an arm's length basis in good faith and in the
commercial interests of ▇▇▇▇▇▇ Griesheim and its Restricted Subsidiaries (other
than the Central American Entity) party thereto and (ii) 50% of the
consideration for such disposal is received by ▇▇▇▇▇▇ Griesheim or a Restricted
Subsidiary of ▇▇▇▇▇▇ Griesheim in cash.
Within 360 days after receipt of any Net Proceeds from an Asset Sale, the
Company will apply, or cause such Restricted Subsidiary to apply, such Net
Proceeds at its option:
(1) to permanently prepay any Indebtedness of a Restricted Subsidiary and,
in the case of payments on any revolving credit facility, effect a
corresponding permanent reduction in the availability under such
revolving credit facility, in each case in accordance with the terms
thereof;
(2) to make an investment, or to be contractually committed to make an
investment pursuant to a binding agreement, in properties and assets
that replace the properties and assets that were the subject of such
Asset Sale or in properties and assets that will be used in a Permitted
Business ("REPLACEMENT ASSETS") and, in the case of a contractual
commitment to so invest pursuant to a binding agreement, to have so
invested within 540 days of the date of receipt of such Net Proceeds
(it being understood that "assets" may include, subject to compliance
with Section 1009, the Share Capital of a Person engaged in a Permitted
Business);
(3) a combination of prepayment and investment permitted by the foregoing
clauses (1) and (2).
Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings (without having to obtain a
corresponding permanent reduction in availability thereunder) or otherwise apply
such Net Proceeds for any purpose otherwise permitted in this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as provided
in the preceding paragraphs will constitute "EXCESS PROCEEDS". When the
aggregate amount of Excess Proceeds exceeds E15 million, the Company will
make an Offer to Purchase (an "ASSET SALE OFFER") to all Holders of Notes to
purchase the maximum principal amount of Notes, and any other PARI PASSU
Indebtedness of the Company containing similar provisions requiring the Company
to prepay, purchase or redeem such PARI PASSU Indebtedness with the proceeds of
an Asset Sale, that may be purchased out of the Excess Proceeds. The offer price
in any Asset Sale Offer will be equal to 100% of principal amount plus accrued
and unpaid interest, if any, Special Interest, if any, and Additional Amounts,
if any, to the date of purchase, and will be payable in cash in the manner
specified in this Indenture (or, in respect of such other Indebtedness to be
prepaid, repurchased or redeemed with the Excess Proceeds, such other price, if
any, and in such manner as may be provided for by the terms of such PARI PASSU
Indebtedness). If any Excess Proceeds remain after consummation of an Asset Sale
Offer (including any offer to the holders of PARI PASSU Indebtedness of the
Company), the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes
tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds
allocable to the Notes, the Trustee will select the Notes on a pro rata basis in
accordance with the procedures set forth in this Indenture. Upon completion of
each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.
Holders may elect to tender their Notes in whole or in part in integral
multiples of E1,000 in exchange for cash. An Asset Sale Offer will remain
open for a period of at least 20 business days or such longer period as may be
required by law.
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Notwithstanding the foregoing, the Company and its Restricted Subsidiaries will
be permitted to consummate an Asset Swap, provided that if such Asset Swap
involves a transfer by the Company or a Restricted Subsidiary of assets having
an aggregate fair market value in excess of E7.5 million, the terms of such
Asset Swap shall have been approved by a majority of the members of the Board of
Directors of the Company and evidenced by a resolution of such Board of
Directors.
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 the
Notes as a result of an Asset Sale Offer. To the extent that, since the date
hereof, changes in the provisions of any such securities laws or regulations
have occurred which conflict with this Section, the Company will comply with
such securities laws or regulations and will not be deemed to have breached its
obligations under this Section by virtue thereof.
1015. CHANGE OF CONTROL
If a Change of Control occurs, each Holder will have the right to require the
Company to repurchase all or any part (equal to E1,000 in principal amount
or an integral multiple thereof) of that Holder's Notes pursuant to an Offer to
Purchase described in the immediately succeeding paragraph (the "CHANGE OF
CONTROL OFFER"). In the Change of Control Offer, the Company will offer a
payment in cash equal to 101% of the principal amount of the Notes repurchased
plus accrued interest, if any, Special Interest, if any, and Additional Amounts,
if any, to the date of purchase (the "CHANGE OF CONTROL PAYMENT").
Within 30 days following any Change of Control, the Company will:
(1) mail a notice including the Offer to Purchase to the Trustee describing
the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on a specific date, which date will be
no earlier than 30 days and no later than 60 days from the date such
notice is mailed (the "CHANGE OF CONTROL PAYMENT DATE"), pursuant to
the procedures required by this Indenture and described in such notice;
(2) publish such notice in a leading newspaper having a general circulation
in New York City (which is expected to be the WALL STREET JOURNAL) and
a leading newspaper having a general circulation in London (which is
expected to be the FINANCIAL TIMES) and, at any time that any Notes are
listed on the Luxembourg Stock Exchange, a leading newspaper in
Luxembourg (which is expected to be THE LUXEMBURGER WORT); and
(3) if any Definitive Notes are outstanding, send, by first class mail,
such notice to each Holder of Definitive Notes.
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 the
Notes as a result of a Change of Control. To the extent that, since the date
hereof, changes in the provisions of any such securities laws or regulations
have occurred which conflict with Section 1015, the Company will comply with
such securities laws or regulations and will not be deemed to have breached its
obligations under Section 1015 by virtue thereof.
On the Change of Control Payment Date, the Company will, to the extent lawful:
(1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer;
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(2) deposit with the Paying Agent an amount equal to the Change of Control
Payment in respect of all Notes or portions thereof so tendered; 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 thereof being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes so tendered the
Change of Control Payment for such Notes, 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; PROVIDED that each such new Note will be in a principal
amount of E1,000 or an integral multiple thereof.
The Company will not be required to make a Change of Control Offer upon a Change
of Control if a third party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements set forth in this
Indenture applicable to a Change of Control Offer made by the Company and
purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
The Company will publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date, and will
also notify the Luxembourg Stock Exchange if required.
1016. LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN ▇▇▇▇▇▇
GRIESHEIM AND MGI
The Company will not, and will not permit any of its Restricted Subsidiaries to,
transfer, convey, sell, lease or otherwise dispose of any Equity Interests in
▇▇▇▇▇▇ Griesheim or MGI to any Person, other than the Company, unless:
(1) such transfer, conveyance, sale, lease or other disposition is of all
the Equity Interests in such Restricted Subsidiary; and
(2) the cash Net Proceeds from such transfer, conveyance, sale, lease or
other disposition are applied in accordance with Section 1014 or, if
such transfer, conveyance, sale, lease or other disposition results in
a transfer, conveyance, sale, lease or other disposition of all or
substantially all of the Company's properties and assets (determined on
a consolidated basis for the Company and the Company's Restricted
Subsidiaries), such transfer, conveyance, sale, lease or other
disposition is made in accordance with the covenant described under
Section 801.
In addition, the Company will not issue, and will not permit ▇▇▇▇▇▇ Griesheim to
issue, any Equity Interests (other than, if necessary, shares of the Share
Capital of ▇▇▇▇▇▇ Griesheim constituting directors' qualifying shares) in ▇▇▇▇▇▇
Griesheim to any Person other than to the Company; and the Company will not, and
will not permit any Restricted Subsidiary of the Company to, issue any Equity
Interests (other than, if necessary, shares of its Share Capital constituting
directors' qualifying shares) in MGI to any Person other than to the Company or
a Wholly Owned Restricted Subsidiary of the Company.
1017. LIMITATION ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS
The Company will not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee the payment of any Indebtedness of the Company (other
than Eligible Indebtedness and Acquired Debt permitted to be incurred under this
Indenture), unless such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture providing for the Guarantee of the payment of
the Notes by such Restricted Subsidiary, which Guarantee will rank in priority
of repayment senior to or equally with such Restricted Subsidiary's Guarantee of
such other Indebtedness.
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1018. ADDITIONAL AMOUNTS; REDEMPTION FOR TAXATION REASONS
All payments in respect of the Notes will be made without withholding or
deduction for or on account of any present or future Taxes imposed or levied by
or on behalf of the Republic of Germany or any jurisdiction in which the Company
(including any Receiving Entity) is then incorporated or resident for tax
purposes or any political subdivision or authority thereof or therein having
power to tax or any jurisdiction by or through which payment is made, unless the
Company is compelled by law to deduct or withhold such taxes, duties,
assessments or other governmental charges. In such event, the Company will pay
such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to ensure
that the net amounts received by the Holders after such withholding or deduction
will equal the respective amounts of principal and interest that would have been
receivable in respect of the Notes in the absence of such withholding or
deduction.
However, no such Additional Amounts will be payable in respect of any Note:
(1) presented for payment of more than 30 days after the Relevant Date (as
defined below), except to the extent that the Holder would have been
entitled to such Additional Amounts on presenting such Note for payment
had such Note been presented on the last day of the applicable 30 day
period;
(2) if any tax, duty, assessment or other governmental charge is imposed or
withheld by reason of the failure to comply or a delay in complying or
the provision of inaccurate information by the Holder of such Note or,
if different, the beneficiary of such amounts when a request by the
Company is addressed or otherwise provided to such Holder or
beneficiary to provide information, documents or other evidence
concerning the nationality, residence, identity or connection with the
Republic of Germany or any relevant jurisdiction of such Holder or
beneficiary which is required or imposed by a statute, treaty,
regulation or administrative practice of the Republic of Germany (or to
which it is a party) or any relevant jurisdiction (or any political
subdivision or authority thereof) as a precondition to exemption from
all or part of such tax, duty, assessment or other governmental charge;
(3) of any person liable for Taxes in respect of such Note by reason of the
Holder of the Note or, if different, the beneficial owner having some
connection with the Republic of Germany or any relevant jurisdiction,
political subdivision or authority thereof or therein other than the
mere purchase, holding or disposition of any Note, or the receipt of
principal or interest in respect thereof, including, without
limitation, such Holder or beneficial owner being or having been a
citizen or resident thereof or being or having been physically present
in or engaged in a trade or business therein or having had a permanent
establishment or fixed base therein whether by himself or through an
agent or having made an election the effect of which is to subject the
Holder or beneficial owner of the Notes to such taxes;
(4) on account of any estate, inheritance, gift, sale, transfer, personal
property, wealth or other similar tax, duty, assessment or other
governmental charge;
(5) presented for payment or in respect of which payment is required to be
made in the Republic of Germany;
(6) on account of any tax that is payable otherwise than by withholding,
deduction or reduction from principal, premium or interest payments on
the Notes;
(7) presented for payment in Luxembourg by or on behalf of a Holder who
would have reasonably been able to avoid such withholding, deduction or
reduction by presenting the relevant Note to another paying agent
maintained by the Company in London, England, or in Frankfurt am Main,
Germany or in any other money-center city in the European Union or
Switzerland; and
96
(8) any combination of (1), (2), (3), (4), (5), (6) or (7);
nor will Additional Amounts be paid with respect to any payment of the principal
of, or any interest on, any Note to any Holder who is a fiduciary or partnership
or other than the sole beneficial owner of such payment to the extent that a
beneficiary or settlor or beneficial owner would not have been entitled to any
Additional Amounts had such beneficiary or settlor or beneficial owner been the
Holder.
The Company will also (a) make such withholding or deduction compelled by
applicable law and (b) remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law. The Company will furnish
copies of such receipts evidencing the payment of any Taxes so deducted or
withheld in such form as provided in the normal course by the taxing authority
imposing such Taxes and as is reasonably available to the Company to the Trustee
within 60 days after the date of receipt of such evidence. The Trustee will make
such evidence available to the Holders upon request.
Whenever in this Indenture there is mentioned, in any context, the payment of
principal (and premium, if any), redemption price, interest, Special 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 Additional Amounts to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof.
"RELEVANT DATE" means the date on which the payment first becomes due but, if
the full amount of the money payable has not been received by the Paying Agent
or the Trustee on or before the due date, it means the date on which, the full
amount of the money having been so received, notice to that effect shall have
been duly given to the Holders by the Company in accordance with these terms and
conditions.
The Company will pay any present or future stamp, court or documentary taxes or
any other excise or property taxes, charges or similar levies that arise in the
United States, the Republic of Germany or in any jurisdiction in which the
Paying Agent is located from the execution, delivery or registration of the
Notes or any other document or instrument referred to in this Indenture or the
Notes.
If the Company determines and certifies to the Trustee immediately prior to the
giving of such notice that:
(1) the payment by the Company of Additional Amounts or further Additional
Amounts (as the case may be) in respect of such Notes would become
required as a result of (a) any change in or amendment to the laws or
treaties (or any regulations or rulings promulgated thereunder) of the
Federal Republic of Germany (or to which it is subject), or any
relevant jurisdiction or any political subdivision or authority thereof
or therein having power to tax or (b) any change or amendment in the
existing official position or the introduction of an official position
regarding the application or interpretation of such laws, regulations
or rulings (including a holding by a court of competent jurisdiction or
any practice or concession of the German Tax Authority) which change,
amendment, application or interpretation becomes effective on or after
the date of issuance of the Notes; and
(2) such obligation cannot be avoided by the Company taking reasonable
measures available to it;
then the Company, at its option, may redeem the Notes in whole but not in part,
at a redemption price equal to the then outstanding principal amount thereof,
together with interest accrued to the date fixed for redemption, Special
Interest, if any, and any Additional Amounts payable with respect thereto as a
result of the redemption or otherwise.
Notwithstanding the preceding, no such notice of redemption will be given
earlier than 60 days prior to the earliest date on which the Company could be
obligated to pay such Additional Amounts if a payment in respect of the Notes
was then due. Prior to the giving of any notice of redemption described in this
paragraph,
97
the Company will deliver to the Trustee (i) a certificate signed by a member of
the management board of the Company stating that the obligation to pay
Additional Amounts cannot be avoided by the Company taking reasonable measures
available to it and (ii) a written opinion of independent legal counsel to the
Company to the effect that circumstances referred to above exist.
In the event (i) the Company should be required, or is likely to be required, to
pay the Additional Amounts, and any applicable law or regulation would prohibit
the payment of such Additional Amounts, and (ii) the Company cannot reasonably
arrange for another obligor to make the relevant payment of interest or
principal so as to avoid the requirement to pay such Additional Amounts, the
Company will be obligated to redeem the Notes in whole but not in part, at a
redemption price equal to the then outstanding principal amount thereof,
together with interest accrued to the date fixed for redemption, Special
Interest, if any, and any Additional Amounts payable with respect thereto as a
result of the redemption or otherwise. Such redemption must occur on the latest
practicable scheduled interest payment date on which the company could make
payment of the full amount of interest payable in respect of the Notes or, if
such date has passed, as soon as practicable thereafter. Prior to the giving of
any notice of redemption described in this paragraph, the Company will deliver
to the Trustee (a) an Officers' Certificate stating that the obligation to pay
Additional Amounts cannot be avoided by the Company taking reasonable measures
available to it and (b) a written opinion of outside legal counsel to the
Company to the effect that circumstances referred to above exist.
If payments in respect of the Notes by the Company will become subject generally
to the taxing jurisdiction of any Territory or any relevant jurisdiction or any
political subdivision or authority thereof or therein having power to tax, other
than or in addition to the Republic of Germany or any such political subdivision
or any such authority therein or thereof, immediately upon becoming aware
thereof the Company will notify the Trustee of such event and (unless the
Trustee otherwise agrees) enter forthwith into a supplemental indenture, giving
to the Trustee an undertaking or covenant in form and manner satisfactory to the
Trustee in terms corresponding to the terms of the foregoing provisions of this
Section with the substitution for (or, as the case may be, the addition to) the
references therein to the Republic of Germany or any political subdivision or
any authority therein or thereof having power to tax of references to that other
or additional Territory or any political subdivision or any authority therein or
thereof having power to tax to whose taxing jurisdiction such payments shall
have become subject as aforesaid. For the purposes of the foregoing, "TERRITORY"
means any jurisdiction in which the Company is incorporated or in which the
Company has its place of central management or central control or in which the
Company carries on any business.
1019. REPORTS
Whether or not the Company is required by the Commission, the Company will
provide to the Trustee and to the holders of the Notes within the time periods
specified in the Commission's rules and regulations (unless otherwise noted):
(1) within 120 days after the end of the Company's fiscal year, all annual
financial information that would be required under Form 20-F
(including, without limitation, the item "Operating and Financial
Review and Prospects" and in relation to the annual financial
statements therein only, a report thereon by the Company's certified
independent accountants);
(2) within 60 days after the end of each of the first three quarters of the
Company's fiscal year, all quarterly financial information that would
be required to be contained in a filing with the Commission on Form
10-Q if the Company were required to file such Form (including, without
limitation, the item "Operating and Financial Review and Prospects");
provided, however, that with respect to each of the first two fiscal
quarters ending after the Issue Date, such quarterly financial
information shall be provided within 90 days after the end of such
fiscal quarter; and
98
(3) all current reports on Form 6-K that would be required to be filed with
the Commission on Form 8-K if the Company were required to file such
reports such information to be furnished at the time such filings would
have been required.
For as long as any Notes are listed on the Luxembourg Stock Exchange, each such
report shall be made available at the offices of the listing agent in
Luxembourg.
If the Company has designated any of its Significant Subsidiaries as
Unrestricted Subsidiaries, then the quarterly and annual financial information
required by the preceding paragraph will include a presentation in the footnotes
to the financial statements or elsewhere in such financial information, of the
financial condition and results of operations of such Unrestricted Subsidiaries
on an aggregate basis, but only to the extent such financial information of such
Unrestricted Subsidiaries is reasonably available.
Whether or not required by the rules and regulations of the Commission, the
Company will file a copy of all such information and reports with the Commission
for public availability within the time periods specified above (the information
set forth in Clause (2) above shall be furnished to the Commission under cover
of Form 6-K) (unless the Commission will not accept such filing).
The Company shall, for so long as any Notes are deemed to be "restricted
securities" within the meaning of Rule 144 under the Securities Act, furnish to
the Holders and beneficial owners of Notes and to prospective purchasers of
those Notes designated by any such Holder or owner, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers' Certificates).
1020. STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES
The Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date of this Indenture, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
after due enquiry the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
The Company shall also deliver to the Trustee, forthwith upon any senior officer
of the Company obtaining actual knowledge of the occurrence of any Default or
Event of Default, an Officers' Certificate setting forth the details of such
Default or Event of Default, and the action which the Company is taking or
proposes to take with respect thereto.
1021. WAIVER OF CERTAIN COVENANTS
The Company may omit in any particular instance to comply with any covenant or
provision set forth in this Indenture, if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding Notes
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or provision with respect to any
such Notes, but no such waiver shall extend to or affect such covenant or
provision except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or provision shall remain in full force and
effect; PROVIDED, HOWEVER, that with respect to a covenant or provision thereof
which under Article Nine cannot be modified or amended
99
without the consent of the Holder of each Outstanding Note affected, no such
waiver may be made or shall be effective against any such Holder without such
Holder's express consent thereto.
1022. DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
As of the Issue Date, all of the Company's Subsidiaries shall be Restricted
Subsidiaries.
The Company may designate any Restricted Subsidiary (other than ▇▇▇▇▇▇ Griesheim
or MIG) as an "UNRESTRICTED SUBSIDIARY" under this Indenture (a
"DESIGNATION");only if:
(a) no Default or Event of Default shall have occurred and be continuing at
the time of or after giving effect to such Designation; and
(b) the Company would be permitted to make an Investment at the time of
Designation (assuming the effectiveness of such Designation) in an
amount (the "DESIGNATION AMOUNT") equal to the aggregate fair market
value of all outstanding Investments owned by the Company and its
Restricted Subsidiaries in such designated Restricted Subsidiary at the
time of such Designation.
In the event of any such Designation, the Company shall be deemed to have made
an Investment pursuant to Section 1009 (a "DEEMED INVESTMENT") for all purposes
of this Indenture in an amount equal to the Designation Amount. Neither the
Company nor any Restricted Subsidiary shall at any time (i) provide credit
support for, or a Guarantee of, any Indebtedness of any Unrestricted Subsidiary
(including any undertaking, agreement or instrument evidencing such
Indebtedness) or (ii) be directly or indirectly liable for any Indebtedness
which provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity upon the occurrence of a default
with respect to any Indebtedness of any Unrestricted Subsidiary (including any
right to take enforcement action against such Unrestricted Subsidiary), except,
in the case of clause (i) and (ii), to the extent permitted under Section 1009.
All Subsidiaries of Unrestricted Subsidiaries shall automatically be deemed to
be Unrestricted Subsidiaries.
The Board of Directors may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary (a "REDESIGNATION") if:
(a) no Default or Event of Default shall have occurred and be continuing at
the time of and after giving effect to such Redesignation;
(b) all Liens and Indebtedness of such Subsidiary outstanding immediately
following such Redesignation would, if incurred or assumed at such
time, have been permitted to be incurred for all purposes of this
Indenture; and
(c) any transactions (or series of related transactions) between such
Subsidiary and any of its Affiliates that occurred while such
Subsidiary was an Unrestricted Subsidiary would be permitted by the
Transactions with Affiliates covenant as if such transaction (or series
of related transactions) had occurred immediately after the time of
such Redesignation.
Each such Designation and Redesignation must be evidenced to the Trustee by the
filing with the Trustee of a certified copy of the resolution of the Board of
Directors of the Company giving effect to such Designation or Redesignation, as
the case may be, and an Officers' Certificate certifying that such Designation
or Redesignation, as the case may be, complied with the foregoing conditions.
100
1023. LIMITATION ON SALE, PREPAYMENT OR MODIFICATION OF THE HIGH YIELD
PROCEEDS LOAN AND THE HIGH YIELD SUBORDINATION AGREEMENT
The Company will not, and will not permit any Restricted Entity, to (1) amend,
modify, supplement, release, cancel or waive any rights or obligations under the
High Yield Proceeds Loan or the High Yield Subordination Agreement in a manner
that would adversely affect the rights of the Company or the Holders of Notes
with respect to the High Yield Proceeds Loan or the High Yield Subordination
Agreement, (2) sell, otherwise dispose of or encumber the High Yield Proceeds
Loan or (3) in the case of clause (1) or (2), enter into any agreement that
would have the same effect, other than, in each case, in accordance with the
terms of the High Yield Proceeds Loan and the High Yield Subordination
Agreement.
The Company will not, and will not permit any Restricted Entity that is or may
be an obligor with respect to the High Yield Proceeds Loan to prepay, repay,
repurchase, redeem or otherwise acquire or retire the High Yield Proceeds Loan
except (A) in accordance with its terms or (B) if the proceeds thereof are to be
used by the Company to redeem all the Notes in a manner permitted under this
Indenture.
ARTICLE ELEVEN
REDEMPTION OF NOTES
1101. RIGHT OF REDEMPTION
The Notes may be redeemed at the election of the Company, in accordance with the
provisions appearing in the form of Note set forth above, at the Redemption
Prices specified in such form of Note together with accrued interest, Special
Interest, if any, and Additional Amounts, if any, to the Redemption Date.
1102. APPLICABILITY OF ARTICLE
Redemption of Notes at the election of the Company, as permitted by any
provision of this Indenture, shall be made in accordance with such provision and
this Article.
1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE
The election of the Company to redeem any Notes pursuant to Section 1101 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company of all or less than all the Notes, the Company shall, at least 40
days before the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Notes to be redeemed.
1104. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time, the Trustee will
select Notes for redemption as follows:
(1) if the Notes are listed, in compliance with the requirements, if any,
of the principal national securities exchange on which the Notes are
listed (as set forth in an Officers' Certificate delivered by the
Company to the Trustee); or
(2) if the Notes are not so listed or if such requirements are not so
certified, on a pro rata basis, by lot or by such method as the Trustee
deems fair and appropriate.
101
No Notes of E1,000 or less will be redeemed in part. Notices of redemption
will 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.
The Trustee shall promptly notify the Company and the Note Registrar in writing
of the Notes selected for redemption and, in the case of any Notes selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context requires otherwise, all
provisions relating to the redemption of Notes shall relate, in the case of any
Notes redeemed or to be redeemed only in part, to the portion of the principal
amount of such Notes which has been or is to be redeemed.
1105. NOTICE OF REDEMPTION
In addition, the Company shall, at least 30 and not more than 60 days before the
Redemption Date, cause notice of such redemption to be published in a leading
newspaper having a general circulation in New York City (which is expected to be
the WALL STREET JOURNAL), a leading newspaper having a general circulation in
London (which is expected to be the FINANCIAL TIMES), a leading newspaper having
a general circulation in Frankfurt (which is expected to be HANDELSBLATT) and,
so long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such Stock Exchange so require, a newspaper having a general circulation in
Luxembourg (which is expected to be the LUXEMBURGER WORT), with a copy to the
Trustee.
All notices of redemption shall identify the Note, including its ISIN number, if
any, and state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the
principal amounts) of the particular Notes to be redeemed,
(d) that on the Redemption Date the Redemption Price will become
due and payable upon each such Note to be redeemed and that,
unless the Company defaults in making such payment on the
Redemption Date, interest thereon will cease to accrue on and
after said date, and
(e) the place or places where such Notes are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the Company
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company.
1106. DEPOSIT OF REDEMPTION PRICE
Before any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) any applicable
accrued interest on, all the Notes which are to be redeemed on that date.
102
1107. NOTES PAYABLE ON REDEMPTION DATE
(1) Notice of redemption having been given as aforesaid, the Notes so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption
Price and any applicable accrued interest) such Notes shall not bear
interest. Upon surrender of any such Note for redemption in accordance
with said notice to the Trustee or a Paying Agent, such Note shall be
paid by the Company at the Redemption Price, together with any
applicable accrued interest to the Redemption Date; PROVIDED, HOWEVER,
that installments of interest whose Stated Maturity is on or before the
Redemption Date shall be payable to the Holders of such Notes, or one
or more Predecessor Notes, registered as such at the close of business
on the relevant Record Dates according to their terms and the
provisions of Section 307.
(2) If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate provided
by the Note.
1108. NOTES REDEEMED IN PART
Any Note which is to be redeemed only in part shall be surrendered at an office
or agency of the Company designated for that purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder of such Note without service charge, a new Note or Notes,
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered. Upon surrender of a Global Note if
redeemed in part, the Paying Agent shall forward the Global Note to the Trustee
who shall make a notation on Schedule A thereof to reduce the principal amount
at maturity of the Global Note by an amount equal to the redeemed portion of the
Global Note, provided that the Global Note shall be in an authorized
denomination.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE
The Company may at its option by Board Resolution, at any time, elect to have
either Section 1202 or Section 1203 applied to the Outstanding Notes upon
compliance with the conditions set forth below in this Article Twelve.
1202. DEFEASANCE AND DISCHARGE
Upon the Company's exercise of the option provided in Section 1201 applicable to
this Section, the Company shall be deemed to have been discharged from its
obligations with respect to the Outstanding Notes on the date the conditions set
forth below are satisfied (hereinafter, "DEFEASANCE"). For this purpose, such
defeasance means that the Company shall 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 execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder:
103
(1) the rights of Holders of such Notes to receive, solely from the trust
fund described in Section 1204 and as more fully set forth in such
Section, payments in respect of the principal of (and premium, if any)
and interest (including Special Interest, if any, and Additional
Amounts, if any) on such Notes when such payments are due;
(2) the Company's obligations with respect to such Notes under Sections
304, 305, 306, 1002 and 1003;
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith; and
(4) this Article Twelve.
Subject to compliance with this Article Twelve, the Company may
exercise its option under this Section 1202 notwithstanding the prior
exercise of its option under Section 1203.
1203. COVENANT DEFEASANCE
Upon the Company's exercise of the option provided in Section 1201 applicable to
this Section:
(1) the Company shall be released from its obligations under Sections 1005
through 1017, inclusive, Section 1019, Section 1022 and Section 801
(2), (3) and (4); and
(2) the occurrence of an event specified in Sections 501(3) (solely with
respect to clauses (2), (3) and (4) of Section 801 and Section 1015),
501(4), 501(5) (with respect to any of Sections 1005, 1006 and 1007),
501(6) and 501(7) shall not be deemed to be an Event of Default on and
after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE").
For this purpose, such covenant defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or Clause, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
Clause or by reason of any reference in any such Section or Clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Notes shall be unaffected thereby.
1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE
The following shall be the conditions to application of either Section 1202 or
Section 1203 to the then Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Notes euros or German Government Euro Obligations in an amount
sufficient, in the opinion of an internationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (premium, if any) and each installment of
interest, including Special Interest, if any, and Additional Amounts,
if any, on the Outstanding Notes on the Stated Maturity of such
principal or installment of interest or on the applicable redemption
date in accordance with the terms of this Indenture and of such Notes,
and the Company must specify whether the Notes are being defeased to
maturity or to a particular redemption date.
104
(2) In the case of an election under Section 1202, the Company shall have
delivered to the Trustee, in form and substance satisfactory to the
Trustee:
(a) an Opinion of U.S. Counsel stating that
(i) the Company has received from, or there has been
published by, the United States Internal Revenue
Service a ruling or;
(ii) since the date of this Indenture there has been a
change in the applicable income tax law,
in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding
Notes will not recognize income, gain or loss for United
States Federal or German income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to
United States Federal or German income tax on the same
amounts, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge
had not occurred;
(b) an Opinion of German Counsel to the effect that the Holders of
the Outstanding Notes will not recognize income, gain or loss
for German income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to German income
tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, defeance
and discharge had not occurred; and
(c) an Opinion of U.S. Counsel, in the event the defeasance trust
is governed by U.S. law, or German Counsel, in the event the
defeasance trust is governed by German law, to the effect
that, under the laws in the United States or Germany, as the
case may be, in effect at the time of such deposit, payments
made from the defeasance trust would not require the payment
of Additional Amounts if the provisions of Section 1018 above
were applicable to such payments.
(3) In the case of an election under Section 1203, the Company shall have
delivered to the Trustee, in form and substance satisfactory to the
Trustee:
(a) an Opinion of U.S. Counsel and an Opinion of German Counsel to
the effect that the Holders of the Outstanding Notes will not
recognize income, gain or loss for United States Federal or
German income tax purposes as a result of such deposit and
covenant defeasance and will be subject to United States
Federal or German income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred; and
(b) an Opinion of U.S. and German Counsel to the effect that,
under the respective laws in the U.S. and Germany in effect at
the time of such deposit, payments made from the defeasance
trust would not require the payment of Additional Amounts if
the provisions of Section 1018 above were applicable to such
payments.
(4) No Default or Event of Default shall have occurred and be continuing on
the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit)
or, insofar as Section 501(9) and Section 501(10) are concerned, at any
time during the period ending three months after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
105
(5) Such defeasance or covenant defeasance shall not result in a material
breach or violation of, or constitute a material default under, any
other material agreement or instrument (other than this Indenture) to
which the Company or any of its Restricted Subsidiaries is a party or
by which the Company or any of its Restricted Subsidiaries is bound.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in form and substance
satisfactory to the Trustee, each stating that all conditions precedent
provided for relating to either the defeasance under Section 1202 or
the covenant defeasance under Section 1203 (as the case may be) have
been complied with.
(7) The Company must have delivered to the Trustee an Opinion of Counsel to
the effect that after three months following the deposit, the trust
funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
(8) The Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company
with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others.
(9) The Company must deliver to the Trustee such other document or other
information as the Trustee may reasonably require in connection
herewith.
1205. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER
MISCELLANEOUS PROVISIONS
Subject to the provisions of the last paragraph of Section 1003, all euros and
German Government Euro Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1205, the "TRUSTEE") pursuant to Section 1204 in respect of the 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 as the Trustee may determine, to the Holders of such
Notes, of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the euros and the German Government Euro
Obligations deposited with the Trustee pursuant to Section 1204 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
euros or German Government Euro Obligations held by it as provided in Section
1204 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 defeasance or covenant defeasance.
1206. REINSTATEMENT
If the Trustee or any Paying Agent is unable to apply any money in accordance
with Section 1202 or 1203 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or
106
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1202 or 1203; PROVIDED, HOWEVER, that if the Company makes any payment
of principal of (and premium, if any) or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or the Paying Agent.
This instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
107
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
▇▇▇▇▇▇ GRIESHEIM HOLDING AG
ON BEHALF OF ALL MEMBERS OF THE
MANAGEMENT BOARD PURSUANT TO A
RESOLUTION UNDER SECTION 78 IV 1 AKTG
DATED MAY 11, 2001
By: /S/ ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of the Management Board
THE BANK OF NEW YORK
as Trustee
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
A-1
ANNEX A
FORM OF REGULATION S CERTIFICATE
(For transfers pursuant to Section 305(b)(i), (iii), (iv) and (v)
of this Indenture)
The Bank of New York
Attn: Corporate Trust Department
Re: 10.375% Senior Notes due 2011 of ▇▇▇▇▇▇ Griesheim Holding AG
(the "NOTES")
Reference is made to the Indenture, dated May 16, 2001 (the "INDENTURE"),
between ▇▇▇▇▇▇ Griesheim Holding AG, (the "COMPANY") and The Bank of New York as
Trustee. Terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933, as amended (the "SECURITIES
ACT") are used herein as so defined.
This certificate relates to E_______ principal amount of Notes, which are
evidenced by the following certificate(s) (the "SPECIFIED NOTES"):
COMMON CODE No(s).
----------------------
ISIN No(s).
----------------------------
CERTIFICATE No(s).
----------------------
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Notes, (ii) it is acting on behalf of all the beneficial owners of the
Specified Notes and is duly authorized by them to do so or (iii) it is the
Holder of a Global Note and has received a certification to the effect set forth
below. Such beneficial owner or owners are referred to herein collectively as
the "OWNER". If the Specified Notes are not represented by a Global Note, they
are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be transferred to a person (the
"TRANSFEREE") who will take delivery in the form of a Regulation S Note. In
connection with such transfer, the Owner hereby certifies or has certified that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
904 of Regulation S or Rule 144 under the Securities Act and with all applicable
securities laws of the states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies or has certified as follows:
(1) RULE 904 TRANSFERS
If the transfer is being effected in accordance with Rule 904 of
Regulation S:
(A) the Owner is not a distributor of the Notes, an affiliate of
the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Notes was not made to a person in
the United States;
A-2
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner
and any person acting on its behalf reasonably
believed that the Transferee was outside the United
States, or
(ii) the transaction is being executed in, on or through
the facilities of the Eurobond market, as regulated
by the International Securities Market Association or
another designated offshore securities market and
neither the Owner nor any person acting on its behalf
knows that the transaction has been prearranged with
a buyer in the United States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any affiliate thereof;
and
(E) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) RULE 144 TRANSFERS
If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after May 16, 2002, and is being
effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after May 16, 2003, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the Initial Purchasers.
Dated:
----------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
--------------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)
B-1
ANNEX B
FORM OF RESTRICTED NOTES CERTIFICATE
(For transfers pursuant to Section 305(b)(ii),
(iii), (iv) and (v) of this Indenture)
The Bank of New York
One Canada Square
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Corporate Trust Department
Re: 10.375% Senior Notes due 2011 of ▇▇▇▇▇▇ Griesheim Holding AG (the
"NOTES")
Reference is made to the Indenture, dated May 16, 2001 (the "INDENTURE"),
between ▇▇▇▇▇▇ Griesheim Holding AG (the "COMPANY") and The Bank of New York as
Trustee. Terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933 (the "SECURITIES ACT") are used
herein as so defined.
This certificate relates to E________ principal amount of Notes, which are
evidenced by the following certificate(s) (the "SPECIFIED NOTES"):
COMMON CODE No(s).
-----------------------
ISIN No(s).
-----------------------------
CERTIFICATE No(s).
-----------------------
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Notes, (ii) it is acting on behalf of all the beneficial owners of the
Specified Notes and is duly authorized by them to do so or (iii) it is the
Holder of a Global Note and has received a certification to the effect set forth
below. Such beneficial owner or owners are referred to herein collectively as
the "OWNER". If the Specified Notes are not represented by a Global Note, they
are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be transferred to a person (the
"TRANSFEREE") who will take delivery in the form of a Restricted Note. In
connection with such transfer, the Owner hereby certifies or has certified that,
unless such transfer is being effected pursuant to an effective registration
statement under the Securities Act, it is being effected in accordance with Rule
144A or Rule 144 under the Securities Act and all applicable securities laws of
the states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies or has certified that:
B-2
(1) RULE 144A TRANSFERS
If the transfer is being effected in accordance with Rule 144A:
(A) the Specified Notes are being transferred to a person that the
Owner and any person acting on its behalf reasonably believe
is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of
a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that
the Owner may be relying on Rule 144A in connection with the
transfer.
(2) RULE 144 TRANSFERS
If the transfer is being effected pursuant to Rule 144:
(A) the transfer is occurring after May 16, 2002, and is being
effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after May 16, 2003, and the Owner is
not, and during the preceding three months has not been, an
affiliate of the Company.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the Initial Purchasers.
Dated:
------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
---------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)
ANNEX C
FORM OF UNRESTRICTED NOTES CERTIFICATE
(For removal of Securities Act legends pursuant to Section 305(c))
The Bank of New York
One Canada Square
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Corporate Trust Department
Re: 10.375% Senior Notes due 2011 of ▇▇▇▇▇▇ Griesheim Holding AG (the
"NOTES")
Reference is made to the Indenture, dated May 16, 2001 (the "INDENTURE"),
between ▇▇▇▇▇▇ Griesheim Holding AG (the "COMPANY") and The Bank of New York, as
Trustee. Terms used herein and defined in the Indenture or in Regulation S or
Rule 144 under the U.S. Securities Act of 1933 (the "SECURITIES ACT") are used
herein as so defined.
This certificate relates to E_________ principal amount of Notes, which are
evidenced by the following certificate(s) (the "SPECIFIED NOTES"):
COMMON CODE No(s).
-----------------------
ISIN No(s).
-----------------------------
CERTIFICATE No(s).
-----------------------
The person in whose name this certificate is executed below (the "UNDERSIGNED")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Notes, (ii) it is acting on behalf of all the beneficial owners of the
Specified Notes and is duly authorized by them to do so or (iii) it is the
Holder of a Global Note and has received a certification to the effect set forth
below. Such beneficial owner or owners are referred to herein collectively as
the "OWNER". If the Specified Notes are not represented by a Global Note, they
are registered in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Notes be exchanged for Notes bearing
no Securities Act legend pursuant to Section 305(c) of this Indenture. In
connection with such exchange, the Owner hereby certifies or has certified that
the exchange is occurring after May 16, 2003, and the Owner is not, and during
the preceding three months has not been, an affiliate of the Company. The Owner
also acknowledges or has acknowledged that any future transfers of the Specified
Notes must comply with all applicable securities laws of the states of the
United States and other jurisdictions.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company and the Initial Purchasers.
Dated:
------------------------
(Print the name of the Undersigned, as such term is
defined in the second paragraph of this certificate.)
By:
---------------------
Name:
Title:
(If the Undersigned is a corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)