EXHIBIT 4-3
DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made on 16th June, 2000 by CIBA SPECIALTY CHEMICALS
HOLDING INC., (the "Guarantor") in favour of the Relevant Account Holders (as
defined in the Deed of Covenant referred to below) and the holders for the time
being of the Notes (as defined below) and the interest coupons (if any)
appertaining to the Notes ("Coupons"), the Coupons being attached on issue to
Definitive Note(s) (as defined below). Each Relevant Account Holder, each holder
of a Note and each holder of a Coupon is a "Holder".
WHEREAS:
(A) CIBA SPECIALTY CHEMICALS CORPORATION, CIBA SPECIALTY CHEMICALS PLC, CIBA
SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH (the "Issuers " and each an
"Issuer") and the Guarantor have entered into an amended and restated
Program Agreement (the "Program Agreement", which expression includes the
same as it may be amended or supplemented from time to time) dated 16th
June, 2000 with the Dealers named therein, which amends and restates the
amended and restated program agreement entered into by, inter alia, Ciba
Specialty Chemicals Corporation, Ciba Specialty Chemicals PLC and Ciba
Spezialitatenchemie Holding Deutschland GmbH dated 9th July, 1999 (the
"Principal Program Agreement"), under which each Issuer proposes from time
to time to issue Euro Medium Term Notes (the "Notes", such expression to
include each Definitive Note issued by an Issuer and each Global Note
issued by an Issuer (where "Definitive Note" and "Global Note" have the
meanings ascribed thereto in the Agency Agreement defined below) and to
include any receipts issued in respect of Notes repayable in instalments);
(B) each Issuer has executed a Deed of Covenant of even date (the "Deed of
Covenant") relating to Global Notes issued by that Issuer pursuant to the
Program Agreement;
(C) the Issuers and the Guarantor have entered into an amended and restated
agency agreement (the "Agency Agreement", which expression includes the
same as it may be amended or supplemented from time to time) dated 16th
June, 2000 with the Paying Agents named therein; and
(D) this Deed of Guarantee amends and restates the amended and restated Deed of
Guarantee made by the Guarantor dated 9th July, 1999, and does not affect
any Notes issued pursuant to the Original Program Agreement prior to the
date hereof.
NOW THIS DEED WITNESSES as follows:
1. Guarantee: The Guarantor irrevocably and unconditionally undertakes to
secure by way of deed poll to each Holder the due and punctual payment as
stipulated in an Issuer's Note or Coupon or under its Deed of Covenant, as
the case may be. The Guarantor therefore undertakes to pay on first demand
of such a Holder, irrespective of the validity and the legal
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effects of the above mentioned relationship in respect of a Note or Coupon
or Deed of Covenant and waiving all rights of objection and defence arising
therefrom any amount not paid by the relevant Issuer (including any premium
or any other amounts of whatever nature or additional amounts) upon receipt
of the written request for payment by such Holder and the confirmation in
writing by the Agent that the relevant Issuer has not made such payments on
the dates specified and in the amount called under the Guarantee. The
Guarantor hereby expressly undertakes and secures that payments under this
Guarantee will not be less than as stipulated in an Issuer's Note or
Coupon. In implementation of this undertaking and in case Swiss withholding
taxes are imposed in respect of payments made under this Guarantee, the
Guarantor undertakes, as a separate and independent obligation, to pay an
increased amount on the relevant Note or Coupon so that the payment
received by the Noteholder or Couponholder shall equal the amount actually
stipulated in such Note or Coupon (assuming no such withholding applies).
2. Guarantor's Obligations Continuing: The Guarantor's obligations under this
Guarantee are and will remain in full force and effect by way of continuing
security until no sum remains payable under any Note, any Coupon or the
Deed of Covenant. Furthermore, these obligations of the Guarantor are
additional to, and not instead of, any security or other guarantee or
indemnity at any time existing in favour of a Holder, whether from the
Guarantor or otherwise. The Guarantor irrevocably waives all notices and
demands whatsoever, except as provided herein.
3. Repayment to the Issuer: If any payment received by a Holder is, on the
subsequent liquidation or insolvency of the relevant Issuer, avoided under
any laws relating to liquidation or insolvency, such payment will not be
considered as having discharged or diminished the liability of the
Guarantor and this Guarantee will continue to apply as if such payment had
at all times remained owing by the relevant Issuer.
4. Status of Guarantee: The payment obligations of the Guarantor under this
Guarantee constitute direct, unconditional and (subject to Clause 5 below)
unsecured obligations of the Guarantor and (subject as aforesaid) rank and
will rank pari passu with all other outstanding unsecured and
unsubordinated indebtedness and monetary obligations of the Guarantor,
present or future, including those in respect of deposits (other than
obligations preferred by law).
5. Negative Pledge of the Guarantor: So long as any of the Notes remains
outstanding, but not later than the time when payment for the full amount
of principal and interest in respect of all outstanding Notes has been duly
provided for, the Guarantor will procure that no Indebtedness of the
Guarantor which is represented by bonds, notes or other securities which in
any such case are listed or capable of being listed on any recognised stock
exchange will be secured upon any of the present or future assets or
revenues of the Guarantor unless all amounts payable under this Guarantee
are secured equally and rateably with such other security or such other
security or guarantee is granted to the Notes and Coupons as shall have
been approved by an Extraordinary Resolution of the Noteholders.
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Any reference to an obligation being guaranteed shall include a reference
to an indemnity being given in respect of payment thereof.
As used herein "Indebtedness" means all indebtedness for money borrowed
that is created, assumed, incurred or guaranteed in any manner by the
Guarantor or for which the Guarantor is otherwise responsible or liable.
6. Tax Gross-up: All payments in respect of the Notes by the Guarantor shall
be made without withholding or deduction for, or on account of, any present
or future taxes, duties, assessments or governmental charges of whatever
nature ("Taxes") imposed or levied by or on behalf of Switzerland, or any
political sub-division of, or any authority in, or of, Switzerland having
power to tax, unless the withholding or deduction of the Taxes is required
by law. In that event, the Guarantor will pay such additional amounts as
may be necessary in order that the net amounts received by the Noteholders
and Couponholders after the withholding or deduction shall equal the
respective amounts which would have been receivable in respect of the Notes
or, as the case may be, Coupons in the absence of the withholding or
deduction; except that no additional amount shall be payable in relation to
any payment in respect of any Note or Coupon:
(i) by or on behalf of a person liable to such tax, duty or charge in
respect of such Note, Receipt or Coupon by reason of his having some
connection with Switzerland other than the mere holding or ownership
of such Note, Receipt or Coupon; and/or
(ii) presented for payment to the relevant Issuer more than 30 days after
the Relevant Date (as defined in Condition 7(f) of the Terms and
Conditions of the relevant Notes) except to the extent that a holder
would have been entitled to additional amounts on presenting the same
for payment on the last day of the period of 30 days; and/or
(iii) to, or to a third party on behalf of, a holder who would be able to
avoid such withholding or deduction by making a declaration of
non-residence or similar claim for exemption but fails to do so.
7. Power to execute: The Guarantor hereby warrants, represents and covenants
with each Holder that it has all corporate power, and has taken all
necessary corporate or other steps, to enable it to execute, deliver and
perform this Guarantee, and that this Guarantee constitutes a legal, valid
and binding obligation of the Guarantor, enforceable in accordance with its
terms subject to applicable bankruptcy, reorganisation, insolvency,
fraudulent transfer, moratorium and other similar laws affecting creditor's
rights generally from time to time in effect, and to general principles of
equity, regardless of whether considered in a proceeding in law or at
equity.
8. Deposit of Guarantee: This Guarantee shall take effect as a Deed Poll for
the benefit of the Holders from time to time and for the time being. This
Guarantee shall be deposited with
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and held by The Chase Manhattan Bank for the benefit of the Holders until
all the obligations of the Guarantor hereunder have been discharged in
full.
9. Production of Guarantee: The Guarantor hereby acknowledges the right of
every Holder to the production of, and the right of every Holder to obtain
(upon payment of a reasonable charge) a copy of, this Guarantee, and
further acknowledges and covenants that the obligations binding upon it
contained herein are owed to, and shall be for the account of, each and
every Holder, and that each Holder shall be entitled severally to enforce
the said obligations against the Guarantor.
10. Subrogation: Until all amounts which may be payable under the Notes, the
Coupons and/or the Deed of Covenant have been irrevocably paid in full, the
Guarantor shall not exercise any rights of subrogation in respect of any
rights of any Holder or claim in competition with the Holders against the
relevant Issuer.
11. Governing Law and Jurisdiction: This Guarantee is governed by and shall be
construed in accordance with English law. The Guarantor irrevocably agrees
for the benefit of each Holder that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in connection
with this Guarantee and that accordingly any suit, action or proceedings
arising out of or in connection with this Guarantee (together referred to
as "Proceedings") may be brought in the courts of England.
The Guarantor irrevocably waives any objection which it may have now or
hereafter to the laying of the venue of the Proceedings in the courts of
England and irrevocably agrees that a final judgment in any Proceedings
brought in the courts of England shall be conclusive and binding upon the
Guarantor and may be enforced in the courts of any other jurisdiction.
Nothing contained in this Clause shall limit any right to take Proceedings
against the Guarantor in any other court of competent jurisdiction, nor
shall the taking of Proceedings in none or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction, whether concurrently or
not.
The Guarantor hereby appoints Ciba Specialty Chemicals PLC as its agent for
service of process in England in respect of any Proceedings and undertakes
that in the event of it ceasing so to act it will appoint another person as
its agent for that purpose.
IN WITNESS whereof this Guarantee has been manually executed as a deed poll on
behalf of the Guarantor.
Executed as a deed )
by CIBA SPECIALTY CHEMICALS )
HOLDING INC. )
acting by its attorneys )
and )
)
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in the presence of: )
Witness's
Signature: .............................
Name: .............................
Address: .............................
.............................
Dated 16th June, 2000
Dated 16th June, 2000
CIBA SPECIALTY CHEMICALS HOLDING INC.
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DEED OF GUARANTEE
(Amended and Restated)
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London