EXHIBIT T3C
TEXON INTERNATIONAL PLC
10% SENIOR NOTES DUE 2008
DM 245,000,000
----------------------------
INDENTURE
DATED AS OF JANUARY 30, 1998
----------------------------
THE BANK OF NEW YORK,
TRUSTEE
Exh. T3C-1
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions .............................................. 9
Section 1.02 Other Definitions ........................................ 29
Section 1.03 Incorporation by Reference of Trust Indenture Act ........ 29
Section 1.04 Rules of Construction .................................... 30
ARTICLE 2
THE SECURITIES
Section 2.01 Form and Dating .......................................... 30
Section 2.02 Execution and Authentication ............................. 31
Section 2.03 Registrar and Paying Agent ............................... 32
Section 2.04 Paying Agent To Hold Money in Trust; Conversion of
Applicable Currency .................................... 33
Section 2.05 Securityholder Lists ..................................... 33
Section 2.06 Transfer and Exchange .................................... 33
Section 2.07 Replacement Securities ................................... 38
Section 2.08 Outstanding Securities ................................... 39
Section 2.09 Temporary Securities ..................................... 39
Section 2.10 Cancelation .............................................. 39
Section 2.11 Defaulted Interest ....................................... 39
Section 2.12 ▇▇▇▇▇ and CINS Numbers ................................... 40
Section 2.13 Deposit of Moneys ........................................ 40
Section 2.14 Certain Matters Relating to Global Securities ............ 41
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee ....................................... 42
Section 3.02 Selection of Securities To Be Redeemed ................... 42
Section 3.03 Notice of Redemption ..................................... 42
Section 3.04 Effect of Notice of Redemption ........................... 44
Section 3.05 Deposit of Redemption Price .............................. 44
Section 3.06 Securities Redeemed in Part .............................. 45
Exh. T3C-2
ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities .................................... 45
Section 4.02 Maintenance of Office or Agency; Reports to Holders ...... 45
Section 4.03 Limitation on Indebtedness ............................... 46
Section 4.04 Limitation on Restricted Payments ........................ 48
Section 4.05 Limitation on Restrictions on Distributions from
Restricted Subsidiaries ................................ 51
Section 4.06 Limitation on Sales of Assets and Subsidiary Stock ....... 52
Section 4.07 Limitation on Transactions with Affiliates ............... 55
Section 4.08 Change of Control ........................................ 56
Section 4.09 Compliance Certificate ................................... 58
Section 4.10 Further Instruments and Acts ............................. 58
Section 4.11 Limitation on Liens ...................................... 58
Section 4.12 Limitation on Guarantees of Company Indebtedness ......... 58
Section 4.13 Limitation on Lines of Business .......................... 59
Section 4.14 Limitation on Sale/Leaseback Transactions ................ 59
Section 4.15 Limitation on the Sale or Issuance of Capital Stock
of Restricted Subsidiaries ............................. 59
Section 4.16 Additional Amounts ....................................... 59
Section 4.17 Payment of Non-Income Taxes and Similar Charges .......... 60
ARTICLE 5
SUCCESSOR COMPANY
Section 5.01 When Company May Merge or Transfer Assets ................ 60
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default ........................................ 61
Section 6.02 Acceleration ............................................. 63
Section 6.03 Other Remedies ........................................... 64
Section 6.04 Waiver of Past Defaults .................................. 64
Section 6.05 Control by Majority ...................................... 64
Section 6.06 Limitation on Suits ...................................... 64
Section 6.07 Rights of Holders to Receive Payment ..................... 65
Section 6.08 Collection Suit by Trustee ............................... 65
Section 6.09 Trustee May File Proofs of Claim ......................... 65
Section 6.10 Priorities ............................................... 65
Section 6.11 Undertaking for Costs .................................... 66
Section 6.12 Waiver of Stay or Extension Laws ......................... 66
Exh. T3C-3
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee ........................................ 66
Section 7.02 Rights of Trustee ........................................ 67
Section 7.03 Individual Rights of Trustee ............................. 68
Section 7.04 Trustee's Disclaimer ..................................... 68
Section 7.05 Notice of Defaults ....................................... 68
Section 7.06 Reports by Trustee to Holders ............................ 68
Section 7.07 Compensation and Indemnity ............................... 68
Section 7.08 Replacement of Trustee ................................... 69
Section 7.09 Successor Trustee by Merger .............................. 70
Section 7.10 Eligibility; Disqualification ............................ 70
Section 7.11 Preferential Collection of Claims Against Company ........ 70
Section 7.12 Trustee Acting in Other Capacities ....................... 70
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Discharge of Liability on Securities; Defeasance ......... 71
Section 8.02 Conditions to Defeasance ................................. 71
Section 8.03 Application of Trust Money ............................... 73
Section 8.04 Repayment to Company ..................................... 73
Section 8.05 Indemnity for Government Obligations ..................... 73
Section 8.06 Reinstatement ............................................ 74
ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Holders ............................... 74
Section 9.02 With Consent of Holders .................................. 75
Section 9.03 Compliance with Trust Indenture Act ...................... 75
Section 9.04 Revocation and Effect of Consents and Waivers ............ 75
Section 9.05 Notation on or Exchange of Securities .................... 76
Section 9.06 Trustee To Sign Amendments ............................... 76
Section 9.07 Payment for Consent ...................................... 76
ARTICLE 10
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls ............................. 77
Exh. T3C-4
Section 10.02 Notices .................................................. 77
Section 10.03 Communication by Holders with Other Holders .............. 78
Section 10.04 Certificate and Opinion as to Conditions Precedent ....... 78
Section 10.05 Statements Required in Certificate or Opinion ............ 78
Section 10.06 When Securities Disregarded .............................. 79
Section 10.07 Rules by Trustee, Paying Agent and Registrar ............. 79
Section 10.08 Legal Holidays ........................................... 79
Section 10.09 GOVERNING LAW ............................................ 79
Section 10.10 Jurisdiction ............................................. 79
Section 10.11 No Recourse Against Others ............................... 80
Section 10.12 Successors ............................................... 80
Section 10.13 Multiple Originals ....................................... 80
Section 10.14 Table of Contents; Headings .............................. 80
Exh. T3C-5
Exhibit A - Form of Initial Security
Exhibit B - Form of Exchange Security
Exhibit C - Form of Transferor Letter of Representation for Transfers of U.S.
Global Security to Regulation S Global Security During the
Restricted Period
Exhibit D - Form of Transferor Letter of Representation for Transfers of U.S.
Global Security to Regulation S Global Security After the Restricted
Period
Exhibit E - Form of Transferor Letter of Representation for Transfers of
Regulation S Global Security to U.S. Global Security During the
Restricted Period
Exhibit F - Form of Transferor Letter of Representation for Transfers of IAI
Global Security to Rule 144A Global Security
Exhibit G - Form of Transferor Letter of Representation for Transfers of Rule
144A Global Security to IAI Global Security
Exhibit H - Form of Letter of Representation for Exchanges of U.S. Global
Security for Regulation S Global Security
Exhibit I - Form of Letter of Representation for Exchange of Regulation S Global
Security for U.S. Global Security
Exhibit J - Form of Letter of Representation for Exchanges of U.S. Global
Security for another U.S. Global Security
Annex A - Form of Transferee Letter of Representations
Exh. T3C-6
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1) ............................................................... 7.10
(a)(2) ............................................................... 7.10
(a)(3) ............................................................... N.A.
(a)(4) ............................................................... N.A.
(a)(5) .......................................................... 7.08; 7.10
(b) 7.08; 7.10
(c) .................................................................. N.A.
311(a) .................................................................. 7.11
(b) .................................................................. 7.11
(c) .................................................................. N.A.
312(a) .................................................................. 2.05
(b) .................................................................. 10.03
(c) .................................................................. 10.03
313(a) .................................................................. 7.06
(b)(1) ............................................................... N.A.
(b)(2) ............................................................... 7.06
(c) .................................................................. 10.02
(d) .................................................................. 7.06
314(a) ...................................................... 4.02; 4.12; 10.02
(b) .................................................................. N.A.
(c)(1) ............................................................... 10.04
(c)(2) ............................................................... 10.04
(c)(3) ............................................................... N.A.
(d) .................................................................. N.A.
(e) .................................................................. 10.05
(f) .................................................................. 4.12
315(a) .................................................................. 7.01
(b) ............................................................ 7.05; 10.02
(c) .................................................................. 7.01
(d) .................................................................. 7.01
(e) .................................................................. 6.11
316(a) (last sentence) .................................................. 10.06
(a)(1)(A) ............................................................ 6.05
(a)(1)(B) ............................................................ 6.04
(a)(2) ............................................................... N.A.
(b) .................................................................. 6.07
317(a)(1) ............................................................... 6.08
(a)(2) ............................................................... 6.09
(b) .................................................................. 2.04
Exh. T3C-7
318(a) .................................................................. 10.01
(c) .................................................................. 10.01
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
Exh. T3C-8
INDENTURE dated as of January 30, 1998, between Texon International
plc, a public limited company incorporated in England and Wales (the "Company")
and THE BANK OF NEW YORK, a New York banking corporation (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's 10% Senior
Notes due 2008 (the "Initial Securities") and, if and when issued as provided in
the Exchange and Registration Rights Agreement of even date herewith, the
Company's 10% Senior Series A Notes due 2008 (the "Exchange Securities", and
together with the Initial Securities, the "Securities").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions. For purposes of the following definitions
and this Indenture generally, (i) all calculations and determinations shall be
made in accordance with U.K. GAAP and shall be based upon the consolidated
financial statements of the Company and its subsidiaries prepared in accordance
with U.K. GAAP and (ii) references to specific amounts in one currency mean such
amounts or their equivalent in other currencies on the date of determination. As
used in this Indenture, the following terms shall have the following meanings:
"Acquisition" means the acquisition by the Company of all the
outstanding share capital of United Texon Limited pursuant to the Acquisition
Agreement dated December 23, 1997, between the Company, Apax European Buy-In
Fund and the other parties thereto.
"Additional Amounts" shall have the meaning set forth in paragraph 2
of Exhibit A hereto.
"Additional Assets" means (i) any tangible property or assets (other
than Indebtedness and Capital Stock) to be used by the Company or a Restricted
Subsidiary in a Related Business; (ii) the Capital Stock of a Person that
becomes a Restricted Subsidiary as a result of the acquisition of such Capital
Stock by the Company or another Restricted Subsidiary; (iii) Capital Stock
constituting a minority interest in any Person that at such time is a Restricted
Subsidiary; or (iv) any reimbursement to the Company or its Restricted
Subsidiaries for expenditures made, and costs incurred, to repair, rebuild,
replace or restore property subject to loss, damage or taking to the extent that
the Net Proceeds consist of insurance proceeds received on account of such loss,
damage or taking; provided, however, that any such Restricted Subsidiary
described in clauses (ii) or (iii) above is primarily engaged in a Related
Business.
"Affiliate" of any specified Person means any other Person, directly
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of Sections 4.06 and 4.07 only, "Affiliate" shall also mean any
beneficial owner of shares representing 5% or more of the total voting power of
the Voting Stock (on a fully diluted
Exh. T3C-9
basis) of the Company or of rights or warrants to purchase such Voting Stock
(whether or not currently exercisable) and any Person who would be an Affiliate
of any such beneficial owner pursuant to the first sentence hereof.
"Asset Disposition" means any sale, lease, transfer or other
disposition of shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company or any of its
Restricted Subsidiaries (including any disposition by means of a merger,
consolidation or similar transaction) other than (i) a disposition by a
Restricted Subsidiary to the Company or by the Company or a Restricted
Subsidiary to a Wholly Owned Subsidiary, (ii) a disposition of inventory in the
ordinary course of business, (iii) the disposition of all or substantially all
of the assets of the Company in the manner permitted pursuant to Section 5.01,
(iv) for purposes of Section 4.06 only, a disposition subject to Section 4.04,
(v) grant of a non-exclusive license of intellectual property in the ordinary
course of business, (vi) the surrender waiver of contract rights or settlement,
release of surrender of tort or other claims and (vii) the sale or other
disposition of the Leicester Plant, other than to an Affiliate of the Company.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"Average Life" means, as of the date of determination, with respect
to any Indebtedness or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of the numbers of years from the date of determination
to the dates of each successive scheduled principal payment of such Indebtedness
or redemption or similar payment with respect to such Preferred Stock multiplied
by the amount of such payment by (ii) the sum of all such payments.
"Bank Indebtedness" means any and all amounts payable under or in
respect of the Credit Agreement, the other Senior Credit Documents and any
Refinancing Indebtedness with respect thereto, as amended from time to time,
including principal, premium (if any), interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization relating
to the Company whether or not a claim for post-filing interest is allowed in
such proceedings), fees, charges, expenses, reimbursement obligations,
guarantees and all other amounts payable thereunder or in respect thereof.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Borrowing Base" means as of any date, an amount equal to the sum of
(i) 60% of the aggregate book value of inventory plus (ii) 85% of the aggregate
book value of all accounts receivable (net of bad debt reserves) of the Company
and its Restricted Subsidiaries on a Consolidated basis, as determined in
accordance with U.K. GAAP consistently applied less (iii) the outstanding
principal amount of all Indebtedness that is permitted to be outstanding by
virtue of clause (iv) of Section 4.03, including any Refinancing Indebtedness in
respect thereof. To the extent that information is not available as to the
amount of inventory or accounts
Exh. T3C-10
receivable as of a specific date, the Company shall use the most recent
available information for purposes of calculating the Borrowing Base.
"Business Day" means a day other than a Saturday, Sunday or other
day on which banking institutions in Luxembourg, the State of New York,
Frankfurt, or London or a place of payment are authorized or required by law to
close.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with U.K. GAAP, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with U.K. GAAP; and the Stated Maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the government of the United States or the United
Kingdom or any agency or instrumentality thereof, having maturities of not more
than one year from the date of acquisition; (ii) marketable general obligations
issued by any state of the United States of America or any political subdivision
of any such state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of acquisition thereof,
having a credit rating of "A" or better from either Standard & Poor's Ratings
Service, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or ▇▇▇▇▇'▇ Investors
Service, Inc.; (iii) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits or bankers' acceptances having maturities of
not more than one year from the date of acquisition thereof issued by any
commercial bank the long-term debt of which is rated at the time of acquisition
thereof at least "A" or the equivalent thereof by Standard & Poor's Ratings
Service, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or "A" or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc., and having capital and surplus in
excess of $500 million; (iv) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clauses (i), (ii)
and (iii) entered into with any bank meeting the qualifications specified in
clause (iii) above; (v) commercial paper rated at the time of acquisition
thereof at least "A-2" or the equivalent thereof by Standard & Poor's Ratings
Service, a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or "P-2" or the
equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of investments, and in either case maturing
within 270 days after the date of acquisition thereof; and (vi) interests in any
investment company which invests solely in instruments of the type specified in
clauses (i) through (v) above.
"Cedel" means Cedel Bank, societe anonyme.
Exh. T3C-11
"Change of Control" means the occurrence of any of the following
events:
(i) prior to the first public offering of Voting Stock of the
Company, the Permitted Holders cease to be the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of a majority in the aggregate of the total voting power of
the Voting Stock of the Company, whether as a result of issuance of
securities of the Company, any merger, consolidation, liquidation or
dissolution of the Company, any direct or indirect transfer of securities
by any Permitted Holder or otherwise (for purposes of this clause (i), the
Permitted Holders shall be deemed to own beneficially any Voting Stock of
an entity (the "specified entity") held by any other entity (the "parent
entity") so long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a majority of the
voting power of the Voting Stock of the parent entity);
(ii) (A) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders, is
or becomes the beneficial owner (as defined in clause (i) above) of more
than 35% of the total voting power of the Voting Stock of the Company and
(B) the Permitted Holders do not "beneficially own" (as defined in clause
(i) above), directly or indirectly, in the aggregate a greater percentage
of the total voting power of the Voting Stock of the Company than such
other person and do not have the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the
Board of Directors (for the purposes of this clause (ii), such other
person shall be deemed to own beneficially any Voting Stock of a specified
corporation held by a parent corporation, if such other person
"beneficially owns" (as defined in this clause (ii)), directly or
indirectly, more than 35% of the voting power of the Voting Stock of such
parent corporation and the Permitted Holders do not "beneficially own" (as
defined in clause (i) above), directly or indirectly, in the aggregate a
greater percentage of the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the board of
directors of such parent corporation);
(iii) the merger or consolidation of the Company with or into
another Person or the merger of another Person with or into the Company,
or the sale of all or substantially all the assets of the Company to
another Person (in each case, other than a Person that is controlled by
the Permitted Holders), and, in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and that represent 100% of the
aggregate voting power of the Voting Stock of the Company are changed into
or exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition
to any other consideration, securities of the surviving corporation that
represent immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving corporation;
or
(iv) during any period of two consecutive years, individuals who at
the beginning of such period constituted the Board of Directors of the
Company (together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of
Exh. T3C-12
the directors of the Company then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company then in
office.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor and, for purposes of
any provision contained herein and required by the TIA, each other obligor on
the indenture securities.
"Consolidated Coverage Ratio" as of any date of determination means
the ratio of (i) the aggregate amount of EBITDA for the period of the most
recent four consecutive fiscal quarters ending at least 45 days prior to the
date of such determination in respect of the most recent such quarter to (ii)
Consolidated Interest Expense for such four fiscal quarters; provided, however,
that:
(A) if the Company or any Restricted Subsidiary has Incurred any
Indebtedness since the beginning of such period that remains outstanding
on such date of determination or if the transaction giving rise to the
need to calculate the Consolidated Coverage Ratio is an Incurrence of
Indebtedness, EBITDA and Consolidated Interest Expense for such period
shall be calculated after giving effect on a pro forma basis to such
Indebtedness as if such Indebtedness had been Incurred on the first day of
such period and the discharge of any other Indebtedness repaid,
repurchased, defeased or otherwise discharged with the proceeds of such
new Indebtedness as if such discharge had occurred on the first day of
such period,
(B) if since the beginning of such period the Company or any
Restricted Subsidiary shall have made any Asset Disposition, the EBITDA
for such period shall be reduced by an amount equal to the EBITDA (if
positive) directly attributable to the assets that are the subject of such
Asset Disposition for such period or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period and
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable to
any Indebtedness of the Company or any Restricted Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the Company
and its continuing Restricted Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Restricted
Subsidiary is sold, the Consolidated Interest Expense for such period
directly attributable to the Indebtedness of such Restricted Subsidiary to
the extent the Company and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale),
(C) if since the beginning of such period the Company or any
Restricted Subsidiary (by merger or otherwise) shall have made an
Investment in any Restricted Subsidiary (or any Person that becomes a
Restricted Subsidiary) or an acquisition of assets, including any
acquisition of assets occurring in connection with a transaction causing a
calculation to be made hereunder, which constitutes all or substantially
all of an operating unit of a business, EBITDA and Consolidated Interest
Expense for such period
Exh. T3C-13
shall be calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period and
(D) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period)
shall have made any Asset Disposition or any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (B) or
(C) above if made by the Company or a Restricted Subsidiary during such
period, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto as if such Asset
Disposition, Investment or acquisition of assets occurred on the first day
of such period. For purposes of this definition, whenever pro forma effect
is to be given to an acquisition of assets, the amount of income or
earnings related thereto and the amount of Consolidated Interest Expense
associated with any Indebtedness Incurred in connection therewith, the pro
forma calculations shall be determined in good faith by a responsible
financial or accounting Officer of the Company after consultation with the
independent certified public accountants of the Company. If any
Indebtedness bears a floating rate of interest and is being given pro
forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been
the applicable rate for the entire period (taking into account any
Interest Rate Agreement applicable to such Indebtedness if such Interest
Rate Agreement has a remaining term as at the date of determination in
excess of 12 months).
"Consolidated Current Liabilities" means, as of any date of
determination, the aggregate amount of liabilities of the Company and its
consolidated Restricted Subsidiaries which may properly be classified as current
liabilities (including taxes accrued as estimated), on a consolidated basis,
after eliminating (a) all intercompany items between the Company and any
Restricted Subsidiary and (b) all current maturities of long-term Indebtedness,
all as determined in accordance with U.K. GAAP consistently applied.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its Restricted Subsidiaries, plus, to the
extent Incurred by the Company and its Restricted Subsidiaries in such period
but not included in such interest expense, (i) interest expense attributable to
Capitalized Lease Obligations and Attributable Debt, (ii) amortization of debt
discount and debt issuance cost, (iii) capitalized interest, (iv) noncash
interest expense, (v) commissions, discounts and other fees and charges with
respect to letters of credit (other than with respect to trade letters of credit
in the ordinary course of business) and bankers' acceptance financing, interest
accruing on any Indebtedness of any other Person to the extent such Indebtedness
is Guaranteed by the Company or any Restricted Subsidiary; provided that payment
of such amounts by the Company or any Restricted Subsidiary is being made to, or
is sought by, the holders of such Indebtedness pursuant to such Guarantee, (vii)
net costs associated with Hedging Obligations (including amortization of fees),
other than costs associated with Currency Agreements made to hedge currency
exposure in connection with trade receivables or payables and purchases of
supplies in the ordinary course of business, (viii) payments in respect of
Preferred Stock of Restricted Subsidiaries of the Company or Disqualified Stock
of the Company held by Persons other than the Company or a Wholly Owned
Subsidiary, and (ix) the cash
Exh. T3C-14
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than the Company) in connection with Indebtedness Incurred
by such plan or trust; provided, however, that there shall be excluded therefrom
any such interest expense of any Unrestricted Subsidiary to the extent the
related Indebtedness is not Guaranteed or paid by the Company or any Restricted
Subsidiary.
"Consolidated Net Income" means, for any period, the net income
(loss) of the Company and its consolidated Subsidiaries; provided, however, that
there shall not be included in such Consolidated Net Income: (i) any net income
(loss) of any Person if such Person is not a Restricted Subsidiary, except that
(A) subject to the limitations contained in clause (iv) below, the Company's
equity in the net income of any such Person for such period shall be included in
such Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such period to the Company or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case of a
dividend or other distribution to a Restricted Subsidiary, to the limitations
contained in clause (iii) below) and (B) the Company's equity in a net loss of
any such Person (other than an Unrestricted Subsidiary) for such period shall be
included in determining such Consolidated Net Income; (ii) any net income (loss)
of any Person acquired by the Company or a Subsidiary in a pooling of interests
transaction for any period prior to the date of such acquisition; (iii) any net
income (loss) of any Restricted Subsidiary if such Subsidiary is subject to
restrictions, directly or indirectly, on the payment of dividends or the making
of other distributions (whether of capital or by means of intercompany loans,
advances or transfers) by such Restricted Subsidiary, directly or indirectly, to
the Company, except that (A) subject to the limitations contained in clause (iv)
below, the Company's equity in the net income of any such Restricted Subsidiary
for such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash that could have been distributed by such Restricted
Subsidiary during such period to the Company or another Restricted Subsidiary as
a dividend or other distribution (whether of capital or by means of an
intercompany loan, advance or transfer)(subject, in the case of a dividend or
other distribution that could have been made to another Restricted Subsidiary,
to the limitation contained in this clause) and (B) the Company's equity in a
net loss of any such Restricted Subsidiary for such period shall be included in
determining such Consolidated Net Income; (iv) any gain or loss realized upon
the sale or other disposition of any asset of the Company or its consolidated
Subsidiaries (including pursuant to any Sale/Leaseback Transaction) that is not
sold or otherwise disposed of in the ordinary course of business and any gain
(but not loss) realized upon the sale or other disposition of any Capital Stock
of any Person; (v) any extraordinary gain or loss; and (vi) the cumulative
effect of a change in accounting principles. Notwithstanding the foregoing, for
the purpose of Section 4.04 only, there shall be excluded from Consolidated Net
Income any dividends, repayments of loans or advances or other transfers of
assets from Unrestricted Subsidiaries to the Company or a Restricted Subsidiary
to the extent such dividends, repayments or transfers increase the amount of
Restricted Payments permitted under such Section pursuant to clause (a)(3)(D)
thereof.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the sum of the amounts that would appear on a consolidated
balance sheet of the Company and its consolidated Restricted Subsidiaries as the
total assets (less accumulated depreciation and amortization, allowances for
doubtful receivables, other applicable reserves and other properly deductible
items) of the Company and its consolidated Restricted Subsidiaries, determined
on a
Exh. T3C-15
consolidated basis in accordance with U.K. GAAP consistently applied, and after
deducting therefrom Consolidated Current Liabilities and, to the extent
otherwise included, the amounts of (without duplication): (a) the excess of cost
over fair market value of assets or businesses acquired; (b) any revaluation or
other write-up in book value of assets subsequent to the last day of the fiscal
quarter of the Company immediately preceding the Issue Date as a result of a
change in the method of valuation in accordance with U.K. GAAP; (c) unamortized
debt discount and expenses and other unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, licenses,
organization or developmental expenses and other intangible items; (d) minority
interests in consolidated Subsidiaries held by Persons other than the Company or
a Restricted Subsidiary; (e) treasury stock; (f) cash set aside and held in a
sinking or other analogous fund established for the purpose of redemption or
other retirement of Capital Stock to the extent such obligation is not reflected
in Consolidated Current Liabilities; and (g) Investments in and assets of
Unrestricted Subsidiaries.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and the Restricted Subsidiaries, determined on a
Consolidated basis, as of the end of the most recent fiscal quarter of the
Company ending at least 45 days prior to the taking of any action for the
purpose of which the determination is being made, as (i) the par or stated value
of all outstanding Capital Stock of the Company plus (ii) paid-in capital or
capital surplus relating to such Capital Stock plus (iii) any retained earnings
or earned surplus less (A) any accumulated deficit and (B) any amounts
attributable to Disqualified Stock.
"Consolidation" means the consolidation of the amounts of each of
the Restricted Subsidiaries with those of the Company in accordance with U.K.
GAAP consistently applied; provided, however, that "Consolidation" shall not
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Company or any Restricted Subsidiary in a Unrestricted
Subsidiary shall be accounted for as an investment. The term "Consolidated" has
a correlative meaning.
"Corporate Trust Office" means the office in the Borough of
Manhattan, The City of New York, at which the Trustee's corporate trust business
is principally administered, which at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
"Credit Agreement" means the Credit Agreement dated as of January
28, 1998, as amended, waived or otherwise modified from time to time, by and
among the Company, Chase Manhattan plc, The Chase Manhattan Bank and Chase
Manhattan International Limited (except to the extent that any such amendment,
waiver or other modification thereto would be prohibited by the terms of this
Indenture, unless otherwise agreed to by the Holders of at least a majority in
aggregate principal amount of Securities at the time outstanding).
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default, all as described under Section 6.01.
Exh. T3C-16
"Definitive Securities" means Securities in definitive registered
form substantially in the form of Exhibit A (with respect to Initial Securities)
or Exhibit B (with respect to Exchange Securities) attached hereto.
"Depositary" means the book-entry depositary or its nominee or the
custodian of either, designated by the Company in the Depositary Agreement until
a successor shall have been appointed and become such pursuant to the applicable
provisions of the Depositary Agreement, and thereafter, "Depositary" shall mean
or include such successor.
"Depositary Agreement" means the Note Depositary Agreement dated as
of the date of this Indenture between the Company and The Bank of New York.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (i) matures or is mandatorily redeemable pursuant to a
sinking fund obligation or otherwise, (ii) is convertible or exchangeable for
Indebtedness or Disqualified Stock or (iii) is redeemable at the option of the
holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the Stated Maturity of the Securities.
"DTC" means The Depository Trust Company or its successors.
"EBITDA" for any period means the Consolidated Net Income for such
period, plus the following to the extent deducted in calculating such
Consolidated Net Income: (i) income tax expense, (ii) Consolidated Interest
Expense, (iii) depreciation expense and (iv) amortization expense, in each case
for such period. Notwithstanding the foregoing, the provision for taxes based on
the income or profits of, and the depreciation and amortization of, a Subsidiary
of the Company shall be added to Consolidated Net Income to compute EBITDA only
to the extent (and in the same proportion) that the net income of such
Subsidiary was included in calculating Consolidated Net Income.
"Euroclear Operator" means ▇▇▇▇▇▇ Guaranty Trust Company of New York
(Brussels office), as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" has the meaning ascribed to it in the Exchange and
Registration Rights Agreement.
"Exchange Offer Registration Statement" has the meaning ascribed to
it in the Exchange and Registration Rights Agreement.
"Exchange and Registration Rights Agreement" means the Exchange and
Registration Rights Agreement dated January 27, 1998, by and between the Initial
Purchasers and the Company, as such agreement may be amended, modified, or
supplemented from time to time in accordance with the terms thereof.
"Exchange Securities" means the 10% Senior Series A Notes due 2008
to be issued pursuant to this Indenture in connection with the offer to exchange
Securities for the
Exh. T3C-17
Initial Securities that may be made by the Company pursuant to the Exchange and
Registration Rights Agreement.
"Federal Republic of Germany Obligations" means securities that are
direct and unconditional obligations of the Federal Republic of Germany or any
of its states (Bundeslander), as defined in Section 1807 No. 2 of the German
Civil Code (Burgerliches Gesetzbuch), as from time to time amended, and are not
callable or redeemable at the option of the issuer thereof.
"Global Security" means a security evidencing all or part of the
Securities deposited with the Depositary in accordance with Section 2.01 and
that is substantially in the form of Exhibit A (with respect to Initial
Securities) or Exhibit B (with respect to Exchange Securities) attached hereto.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Securityholder" means (i) in the case of Global
Securities, the bearer thereof which shall initially be the Depositary and (ii)
in the case of Definitive Securities, the Person in whose name a Definitive
Security is registered on the Registrar's books.
"IAI" or "Institutional Accredited Investor" means an "accredited
investor" within the meaning of Rule 501(a) (1), (2), (3) or (7) under the
Securities Act that is an institutional investor.
"IAI Global Security" has the meaning set forth in Section 2.01.
"Incur" means to issue, assume, Guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock of a
Person existing at the time such Person becomes a Restricted Subsidiary (whether
by merger, consolidation, acquisition or otherwise) shall be deemed to be
Incurred by such Person at the time it becomes a Restricted Subsidiary.
Exh. T3C-18
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication),
(i) the principal of and premium (if any) in respect of indebtedness
of such Person for borrowed money;
(ii) the principal of and premium (if any) in respect of obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments;
(iii) all obligations of such Person in respect of letters of credit
or other similar instruments (including reimbursement obligations with
respect thereto);
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables), which
purchase price is due more than six months after the date of placing such
property in service or taking delivery and title thereto or the completion
of such services;
(v) all Capitalized Lease Obligations and all Attributable Debt of
such Person;
(vi) the amount of all obligations of such Person with respect to
the redemption, repayment or other repurchase of any Disqualified Stock
or, with respect to any Subsidiary of the Company, the maximum liquidation
preference (or, if greater, maximum mandatory redemption or repurchase
price) with respect to any Preferred Stock (but excluding, in each case,
any accrued dividends except to the extent such dividends increase such
preference (or price));
(vii) all Indebtedness of other Persons secured by a Lien on any
asset of such Person, whether or not such Indebtedness is assumed by such
Person; provided, however, that the amount of Indebtedness of such Person
shall be the lesser of (A) the fair market value of such asset at such
date of determination and (B) the amount of such Indebtedness of such
other Persons;
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person; and
(ix) to the extent not otherwise included in this definition,
Hedging Obligations of such Person.
The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date.
"Initial Global Securities" means the Regulation S Global Security,
the Rule 144A Global Security and the IAI Global Security.
Exh. T3C-19
"Initial Purchasers" means Chase Manhattan Bank AG, Chase Securities
Inc. and Chase Manhattan International Limited.
"Initial Securities" means the % Senior Notes due 2008, issued under
this Indenture on or about the date hereof.
"Interest Payment Date" means the stated maturity of an installment
of interest on the Securities.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" in any Person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of business that
are recorded as accounts receivable on the balance sheet of such Person) or
other extension of credit (including by way of Guarantee or similar arrangement)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (i) "Investment" shall include the
portion (proportionate to the Company's equity interest in such Subsidiary) of
the fair market value of the net assets of any Subsidiary of the Company at the
time that such Subsidiary is designated an Unrestricted Subsidiary; provided,
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company shall be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive) equal to
(x) the Company's "Investment" in such Subsidiary at the time of such
redesignation less (y) the portion (proportionate to the Company's equity
interest in such Subsidiary) of the fair market value of the net assets of such
Subsidiary at the time of such redesignation; and any property transferred to or
from an Unrestricted Subsidiary shall be valued at its fair market value at the
time of such transfer, in each case as determined in good faith by the Board of
Directors.
"Issue Date" means the date on which the Initial Securities are
originally issued.
"Leicester Plant" means the real property and related equipment
owned by Texon UK Limited located in Leicester, England.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Maturity Date" means February 1, 2008.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a note or installment receivable or otherwise), but only
as and when received, but excluding any other consideration received in the form
of assumption by the acquiring Person of Indebtedness
Exh. T3C-20
or other obligations relating to the properties or assets that are the subject
of such Asset Disposition or received in any other noncash form) therefrom, in
each case net of (i) all legal, title and recording tax expenses, commissions
and other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be paid or accrued as a liability under U.K.
GAAP, as a consequence of such Asset Disposition, (ii) all payments made on any
Indebtedness which is secured by any assets subject to such Asset Disposition,
in accordance with the terms of any Lien upon such assets, or which must by its
terms, or in order to obtain a necessary consent to such Asset Disposition, or
by applicable law be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments required to be made to minority
interest holders in Subsidiaries or joint ventures as a result of such Asset
Disposition and (iv) the deduction of appropriate amounts to be provided by the
seller as a reserve, in accordance with U.K. GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition; and (v)
any portion of the purchase price from an Asset Disposition placed in escrow
(whether as a reserve for adjustment of the purchase price, for satisfaction of
indemnities in respect of such Asset Disposition or otherwise in connection with
such Asset Disposition); provided, however, that upon termination of such
escrow, Net Available Cash shall be increased by any portion of funds therein
released to the Company or any Restricted Subsidiary.
"Net Cash Proceeds", with respect to any issuance or sale of Capital
Stock, means the proceeds in cash or Cash Equivalents of such issuance or sale
net of attorneys' fees, accountants' fees, underwriters' or placement agents'
fees, discounts or commissions and brokerage, consultant and other fees or
expenses actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
"Non-U.S. Persons" means Persons who are not U.S. Persons. "Officer"
means the Chairman of the Board, the Chief Executive Officer, the Finance
Director, any executive director or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who
is acceptable to the Trustee. Unless otherwise required by the TIA, the counsel
may be an employee of or counsel to the Company or the Trustee.
"Permitted Holders" means Apax Ventures IV, Apax Ventures IV
International Partners L.P., Apax European Buy-In Fund International Partners
L.P., Apax European Buy-In Fund, Apax CR III or Chase Equity Associates L.P.,
any of their respective Affiliates, and any limited partnership, investment
trust or investment fund which in each case is managed or advised by any of Apax
Partners & Co. Strategic Investors Limited, Apax Partners & Co. Ventures Limited
and Chase Capital Partners or any of their respective Affiliates; and any Person
acting in the capacity of an underwriter in connection with a public or private
offering of the Company's Capital Stock.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in (i) a Restricted Subsidiary or a Person that shall,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Related
Business; (ii) another Person if as a result of such
Exh. T3C-21
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Restricted Subsidiary; provided, however, that such Person's primary business is
a Related Business; (iii) Temporary Cash Investments; (iv) 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; (v) payroll, travel and similar advances to
cover matters that are expected at the time of such advances ultimately to be
treated as expenses for accounting purposes and that are made in the ordinary
course of business; (vi) loans or advances to employees made in the ordinary
course of business consistent with past practices of the Company or such
Restricted Subsidiary and not exceeding (Pounds)1.0 million in the aggregate
outstanding at any one time; (vii) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments; (viii) a
joint venture or other entity principally engaged in a Related Business,
provided, however, that the aggregate amount of all such Investments under this
clause (viii) shall not exceed (Pounds)2.0 million; and (ix) any Person to the
extent such Investment represents the non-cash portion of the consideration
received for an Asset Disposition as permitted pursuant to Section 4.06.
"Permitted Liens" means, with respect to any Person, (a) pledges or
deposits by such Person under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or United States government bonds
to secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes, assessments, governmental charges or claims or
import duties or for the payment of rent, government contracts, performance and
return of money bonds and other obligations of a like nature in each case
Incurred in the ordinary course of business; (b) Liens imposed by law, such as
carriers', warehousemen's and landlords', suppliers', materialmen's, repairmen's
and mechanics' Liens, in each case for sums not yet due or being contested in
good faith by appropriate proceedings or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall then be
proceeding with an appeal or other proceedings for review; (c) Liens for
property taxes not yet due or payable or subject to penalties for non-payment
and which are being contested in good faith and by appropriate proceedings;
provided that any reserve or other appropriate provision required in accordance
with U.K. GAAP shall have been made therefor; (d) Liens in favor of issuers of
surety bonds or letters of credit issued pursuant to the request of and for the
account of such Person in the ordinary course of its business; (e) minor survey
exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as
to the use of real properties or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not Incurred in
connection with Indebtedness and which do not in the aggregate materially
adversely affect the value of said properties or materially impair their use in
the operation of the business of such Person; (f) Liens granted by the Company
securing Indebtedness Incurred to finance the construction, purchase or lease
of, or repairs, improvements or additions to, property; provided, however, that
the Lien may not extend to any other property
Exh. T3C-22
owned by the Company or any Restricted Subsidiary at the time the Lien is
Incurred, and the Indebtedness secured by the Lien may not be Incurred more than
365 days after the later of the acquisition, completion of construction, repair,
improvement, addition or commencement of full operation of the property subject
to the Lien; (g) Liens existing on the Issue Date; (h) Liens on property or
shares of stock of a Person at the time such Person becomes a Subsidiary;
provided, however, such Liens are not created, Incurred or assumed in connection
with, or in contemplation of, such other Person becoming such a Subsidiary;
provided further, however, that such Liens may not extend to any other property
owned by the Company or any Restricted Subsidiary; (i) Liens on property at the
time the Company or a Restricted Subsidiary acquired the property, including any
acquisition by means of a merger or consolidation with or into the Company or
any Restricted Subsidiary; provided, however, that such Liens are not created,
Incurred or assumed in connection with, or in contemplation of, such
acquisition; provided further, however, that the Liens may not extend to any
other property owned by the Company or any Restricted Subsidiary; (j) Liens
securing Indebtedness or other obligations of a Restricted Subsidiary owing to
the Company or a Wholly Owned Subsidiary; (k) Liens securing Hedging Obligations
so long as the related Indebtedness is, and is permitted to be under this
Indenture, secured by a Lien on the same property securing such Hedging
Obligations; (l) Liens to secure any refinancing, refunding, extension, renewal
or replacement (or successive refinancings, refundings, extensions, renewals or
replacements) as a whole, or in part, of any Indebtedness secured by any Lien
referred to in the foregoing clauses (f), (g), (h) and (i); provided, however,
that (x) such new Lien shall be limited to all or part of the same property that
secured the original Lien (plus improvements on such property) and (y) the
Indebtedness secured by such Lien at such time is not increased to any amount
greater than the sum of (A) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (f), (g), (h), or
(i) at the time the original Lien became a Permitted Lien under this Indenture
and (B) an amount necessary to pay any fees and expenses, including premiums,
related to such refinancing, refunding, extension, renewal or replacement; (m)
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;
(n) judgment and attachment Liens not giving rise to an Event of Default; (o)
leases or subleases granted to others in the ordinary course of business; (p)
Liens arising out of consignment or similar arrangements for the sale of goods
entered into by the Company or its Restricted Subsidiaries in the ordinary
course of business; (q) Liens arising from filing Uniform Commercial Code
financing statements regarding leases; (r) Liens granted by the Company on the
stock of United Texon Limited securing Indebtedness of the Company under the
Revolving Facility; (s) Liens granted by the Company securing Indebtedness of
the Company permitted under clauses (b)(iii) and (viii) of Section 4.03, or
securing Refinancing Indebtedness in respect thereof; (t) Liens securing
Indebtedness (other than Preferred Stock) of a Restricted Subsidiary permitted
under clause (a) or clauses (b)(i), (iv), (v), (vi), (vii), (viii) or (ix) of
Section 4.03; and (u) Liens securing aggregate Indebtedness outstanding from
time to time not in excess of 10% of Consolidated Net Tangible Assets. "Person"
means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or
Exh. T3C-23
dissolution of such corporation, over shares of Capital Stock of any other class
of such corporation.
"principal" of a Security means the principal of the Security plus
the premium, if any, payable on the Security that is due or overdue or is to
become due at the relevant time.
"Private Placement Legend" means the legend initially set forth on
the Securities in the form set forth on Exhibit A.
"Public Equity Offering" means an underwritten primary public
offering of ordinary shares of the Company pursuant to (i) an effective
registration statement under the Securities Act or (ii) a placement outside the
United States involving the distribution of an offering circular to at least 100
bona fide prospective purchasers and listing of such ordinary shares on the
Luxembourg Stock Exchange or other Recognized Stock Exchange (a "Qualified
Placement").
"Public Market" means any time after (i) a Public Equity Offering
has been consummated and (ii) at least 15% of the total issued and outstanding
ordinary shares of the Company has been distributed by means of an effective
registration statement under the Securities Act or a Qualified Placement.
"Purchase Agreement" means the agreement for the purchase of DM
245.0 million principal amount of senior Securities among the Company and the
Initial Purchasers dated January 27, 1998.
"Purchase Date" shall have the meaning set forth in Section 4.06(c).
"Purchase Money Indebtedness" means Indebtedness (i) consisting of
the deferred purchase price of property, conditional sale obligations,
obligation under any title retention agreement and other purchase money
obligations with respect to the acquisition of an asset in the ordinary course
of business, in each case where the maturity of such Indebtedness does not
exceed the anticipated useful life of the asset being financed, and (ii)
incurred to finance the acquisition by the Company or a Restricted Subsidiary of
such asset, including additions and improvements; provided, however, that any
Lien arising in connection with any such Indebtedness shall be limited to the
specified asset being financed or, in the case of real property or fixtures,
including additions and improvements, the real property on which such asset is
attached; and provided further, that such Indebtedness is Incurred within 180
days after such acquisition by the Company or Restricted Subsidiary of such
asset and does not exceed the lesser of the fair market value or the purchase
price of such asset.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Recognized Stock Exchange" means a recognized stock exchange within
the meaning of Section 841 of the U.K. Income and Corporation Taxes Act of 1988.
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to this Indenture or
paragraph 6 or 7 of the Securities.
Exh. T3C-24
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances", and "refinanced"
shall have a correlative meaning) any Indebtedness existing on the date of this
Indenture or Incurred in compliance with this Indenture (including Indebtedness
of the Company that refinances Indebtedness of any Restricted Subsidiary (to the
extent permitted in this Indenture) and Indebtedness of any Restricted
Subsidiary that refinances Indebtedness of another Restricted Subsidiary)
including Indebtedness that refinances Refinancing Indebtedness; provided,
however, that (i) the Refinancing Indebtedness has a Stated Maturity no earlier
than the Stated Maturity of the Indebtedness being refinanced, (ii) the
Refinancing Indebtedness has an Average Life at the time such Refinancing
Indebtedness is Incurred that is equal to or greater than the Average Life of
the Indebtedness being refinanced and (iii) such Refinancing Indebtedness is
Incurred in an aggregate principal amount (or if issued with original issue
discount, an aggregate issue price) that is equal to or less than the aggregate
principal amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding of the Indebtedness being refinanced; provided
further, however, that Refinancing Indebtedness shall not include (A)
Indebtedness of a Restricted Subsidiary that refinances Indebtedness of the
Company or (B) Indebtedness of the Company or a Restricted Subsidiary that
refinances Indebtedness of an Unrestricted Subsidiary.
"Registered Exchange Offer" shall have the meaning set forth in the
Exchange and Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning set forth in Section
2.01.
"Related Business" means any business related, ancillary or
complementary to the businesses of the Company and the Restricted Subsidiaries
as conducted on the Issue Date.
"Representative" means the trustee, agent or representative (if any)
for an issue of Senior Indebtedness.
"Restricted Period" means the period of 40 consecutive days
beginning on and including the first day after the Issue Date.
"Restricted Subsidiary" means any Subsidiary of the Company other
than an Unrestricted Subsidiary.
"Revolving Facility" means the Revolving Facility under the Credit
Agreement (as defined therein).
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Global Security" has the meaning set forth in Section
2.01.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person,
Exh. T3C-25
other than leases between the Company and a Wholly Owned Subsidiary or between
Wholly Owned Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Securities" means, collectively, the Initial Securities and, when
and if issued as provided in the Exchange and Registration Rights Agreement, the
Exchange Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Credit Documents" means the collective reference to the
Credit Agreement and the Security Documents (each as defined in the Credit
Agreement).
"Senior Indebtedness" means all Indebtedness of the Company
including principal of, premium (if any), accrued interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing
interest is allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and other amounts owing with respect to such
Indebtedness, whether outstanding on the Issue Date or thereafter Incurred,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that the obligations constituting such
Indebtedness are not superior in right of payment to the Securities; provided,
however, that Senior Indebtedness shall not include (i) any obligation of the
Company to any Subsidiary of the Company, (ii) any liability for taxes owed or
owing by the Company, (iii) any accounts payable or other liability to trade
creditors arising in the ordinary course of business (including Guarantees
thereof or instruments evidencing such liabilities), (iv) any Indebtedness or
obligation of the Company which is subordinate or junior in any respect to any
other Indebtedness or obligation of the Company, including any Subordinated
Obligations, (v) any obligations with respect to any Capital Stock, or (vi) any
Indebtedness Incurred in violation of this Indenture.
"Shelf Registration Statement" has the meaning ascribed to it in the
Exchange and Registration Rights Agreement.
"Significant Subsidiary" means any Restricted Subsidiary that would
be a "Significant Subsidiary" of the Company within the meaning of Rule 1-02
under Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
Exh. T3C-26
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement.
"Subsidiary" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) 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 (i) such Person, (ii) such
Person and one or more Subsidiaries of such Person, or (iii) one or more
Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i) any
investment in direct obligations of the United Kingdom or the United States of
America or any agency thereof or obligations Guaranteed by the United Kingdom or
the United States of America or any agency thereof, (ii) investments in time
deposit accounts, certificates of deposit and money market deposits maturing
within 180 days of the date of acquisition thereof issued by a bank or trust
company which is organized under the laws of the United States of America, any
state thereof or any foreign country recognized by the United States of America
having capital, surplus and undivided profits aggregating in excess of
$250,000,000 (or the foreign currency equivalent thereof) and whose long-term
debt is rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act), (iii) repurchase obligations with a term of not more
than 30 days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) investments in commercial paper, maturing not more than 90 days
after the date of acquisition, issued by a corporation (other than an Affiliate
of the Company) organized and in existence under the laws of the United States
of America or any foreign country recognized by the United States of America
with a rating at the time as of which any investment therein is made of "P-1"
(or higher) according to ▇▇▇▇▇'▇ Investors Service, Inc. or "A-1" (or higher)
according to Standard and Poor's Ratings Service, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("S&P"), and (v) investments in securities with maturities of
six months or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by S&P
or "A" by ▇▇▇▇▇'▇ Investors Service, Inc.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-
77bbbb) as in effect on the date of this Indenture.
"Trade Payables" means, with respect to any Person, any accounts
payable or any indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
in connection with the acquisition of goods or services.
"Transactions" means the establishment of and initial drawings under
the Revolving Facility, the Offering and the Acquisition (including the use of
the proceeds of such financings and the payment of related fees and expenses).
Exh. T3C-27
"Transfer Restricted Security" has the meaning ascribed to it in the
Exchange and Registration Rights Agreement.
"Trustee" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"Trust Officer" means any Vice President or any other officer or
assistant officer of the Trustee assigned by the Trustee to the Corporate Trust
Office to administer its corporate trust matters.
"U.K. GAAP" means accounting principles generally accepted in the
United Kingdom and approved by the Institute of Chartered Accountants of England
and Wales or other applicable authority, as in effect as of the Issue Date. All
ratios and comparisons contained in this Indenture shall be computed in
conformity with U.K. GAAP.
"Uniform Commercial Code" means the New York Uniform Commercial Code
as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company
that at the time of determination shall be designated an Unrestricted Subsidiary
by the Board of Directors in the manner provided below and (ii) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of,
or owns or holds any Lien on any property of, the Company or any other
Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so
designated; provided, however, that either (A) the Subsidiary to be so
designated has total consolidated assets of (Pounds)10,000 or less or (B) if
such Subsidiary has consolidated assets greater than (Pounds)10,000, then such
designation would be permitted under Section 4.04. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
however, that immediately after giving effect to such designation (x) the
Company could Incur $1.00 of additional Indebtedness under Section 4.03(a) and
(y) no Default shall have occurred and be continuing. Any such designation of a
Subsidiary as a Restricted Subsidiary or Unrestricted Subsidiary by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"U.S. Persons" shall have the meaning given in Regulation S under
the Securities Act.
"Voting Stock" of a corporation means all classes of Capital Stock
of such corporation then outstanding and normally entitled to vote in the
election of directors.
Exh. T3C-28
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company all the Capital Stock of which (other than directors' qualifying shares)
is owned by the Company or another Wholly Owned Subsidiary.
Section 1.02 Other Definitions.
DEFINED IN
TERM SECTION
------------------------------------------------------------- ----------
"Affiliate Transaction"...................................... 4.07
"Agent Members".............................................. 2.15
"Applicable Procedures"...................................... 2.06(a)
"Bankruptcy Law"............................................. 6.01
"Company Order".............................................. 2.02
"covenant defeasance option"................................. 8.01(b)
"Custodian".................................................. 6 .01
"Default Interest Payment Date".............................. 2.11
"Event of Default"........................................... 6.01
"IAI Global Security"........................................ 2.01
"legal defeasance option".................................... 8.01(b)
"Legal Holiday".............................................. 10.08
"Offer"...................................................... 4.06
"Offer Amount"............................................... 4.06
"Offer Period"............................................... 4.06
"Paying Agent"............................................... 2.03
"Permitted Indebtedness"..................................... 4.03(b)
"Purchase Date".............................................. 4.06
"Registrar".................................................. 2.03
"Regulation S Global Security"............................... 2.01
"Regulation S Security"...................................... 2.01
"Restricted Payment"......................................... 4.04
"Rule 144A Global Security".................................. 2.01
"Successor Company".......................................... 5.01
"Taxes"...................................................... 4.17
"U.S. Global Security"....................................... 2.01
"U.S. Security".............................................. 2.01
Section 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
Exh. T3C-29
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any
other obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.04 Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with U.K. GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any non-interest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the issuer dated such date prepared in accordance
with U.K. GAAP and accretion of principal on such security shall be deemed to be
the Incurrence of Indebtedness; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation value of such Preferred Stock or (ii) the maximum mandatory
redemption or mandatory repurchase price with respect to such Preferred Stock,
whichever is greater.
ARTICLE 2
THE SECURITIES
Section 2.01 Form and Dating. The Initial Securities and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A, which is hereby incorporated in and expressly made a part of this
Indenture. Any Exchange Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit B, which is hereby
incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company).
Each Security shall be dated the date of its issuance and shall show the date of
its authentication. The terms of the Securities set forth in Exhibits A and B
are part of the terms of this Indenture.
Exh. T3C-30
The Initial Securities are being offered and sold by the Company
pursuant to the Purchase Agreement.
Initial Securities offered and sold to QIBs in reliance on Rule 144A
as provided in the Purchase Agreement, shall be issued initially in the form of
a single Global Security in global bearer form without interest coupons
substantially in the form of Exhibit A hereto, with such applicable legends as
are set forth in Exhibit A hereto, except as otherwise permitted herein (the
"Rule 144A Global Security"). On the Issue Date a similar Global Security, (the
"IAI Global Security" and, together with the Rule 144A Global Security, the
"U.S. Global Securities") in global bearer form shall also be issued to
accommodate transfers of Securities to IAIs. The U.S. Global Securities shall be
deposited initially with the Depositary pursuant to the terms of the Depositary
Agreement, duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of each U.S. Global
Security may from time to time be increased or decreased by adjustments made by
annotation or endorsement thereon by the Trustee on behalf of the Company (or by
the issue of a further U.S. Global Security of the same type), in connection
with a corresponding decrease or increase in the aggregate principal amount of
the other U.S. Global Security or the Regulation S Global Security or in
consequence of the issue of Definitive Securities or additional U.S. Securities,
as hereinafter provided. The U.S. Global Securities and all other Initial
Securities evidencing the debt, or any portion of the debt, initially evidenced
by such U.S. Global Securities, other than Securities transferred or exchanged
upon certification as provided in Section 2.06(a)(i)(1), (2) or (6), shall
collectively be referred to herein as the "U.S. Securities".
Initial Securities offered and sold in reliance on Regulation S as
provided in the Purchase Agreement, shall be issued initially in the form of a
single Global Security in global bearer form without interest coupons
substantially in the form of Exhibit A hereto, with such applicable legends as
are set forth in Exhibit A hereto, except as otherwise permitted herein, which
shall be deposited initially with the Depositary pursuant to the terms of the
Depositary Agreement, duly executed by the Company and authenticated by the
Trustee as hereinafter provided. Such Global Security shall be referred to
herein as the "Regulation S Global Security". The aggregate principal amount of
the Regulation S Global Security may from time to time be increased or decreased
by adjustments made by annotation or endorsement thereon by the Trustee on
behalf of the Company (or by the issue of a further Regulation S Global
Security), in connection with a corresponding decrease or increase in the
aggregate principal amount of a U.S. Global Security or in consequence of the
issue of Definitive Securities or additional Regulation S Securities, as
hereinafter provided. The Regulation S Global Security and all other Initial
Securities that are not U.S. Global Securities shall collectively be referred to
herein as the "Regulation S Securities".
Section 2.02 Execution and Authentication. Two Officers shall sign
the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
Exh. T3C-31
The Trustee shall authenticate and deliver (1) Initial Securities
for original issue in an aggregate principal amount of DM 245,000,000, and (2)
Exchange Securities for issue only in a Registered Exchange Offer, pursuant to
the Exchange and Registration Rights Agreement for a like principal amount of
Initial Securities exchanged pursuant thereto, in each case upon a written order
of the Company signed by two Officers or by an Officer and either an Assistant
Treasurer or an Assistant Secretary of the Company (a "Company Order"). Such
Company Order shall specify the amount of the Securities to be authenticated,
the date on which the original issue of Securities is to be authenticated,
whether the Securities are to be Initial Securities or Exchange Securities,
whether the Securities are to be Definitive Securities or Global Securities and
whether or not the Securities shall bear the Private Placement Legend, or such
other information as the Trustee may reasonably request. The aggregate principal
amount of Securities outstanding at any time may not exceed DM 245,000,000
except as provided in Section 2.07. Upon receipt of a Company Order, the Trustee
shall authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, Paying Agent or agent
for service of notices and demands.
The Securities shall be issuable only in denominations of DM1,000
and any integral multiple thereof. The Global Securities shall be in bearer form
without coupons and the Definitive Securities shall be in registered form.
Section 2.03 Registrar and Paying Agent. The Company shall maintain
an office or agency outside of the United Kingdom, where (a) Global Securities
may be presented or surrendered for transfer or for exchange of beneficial
interests therein in accordance with Section 2.06, (b) Global Securities may be
presented or surrendered for payment ("Paying Agent") and (c) notices and
demands in respect of such Global Securities and this Indenture may be served.
In the event that Definitive Securities are issued, (x) Definitive Securities
may be presented or surrendered for registration of transfer or for exchange,
(y) Definitive Securities may be presented or surrendered for payment and (z)
notices and demands in respect of the Definitive Securities and this Indenture
may be served at an office of the registrar (the "Registrar") or the Paying
Agent, as applicable, maintained by the Company in the Borough of Manhattan, The
City of New York. The Registrar shall keep a register of the Definitive
Securities and of their transfer and exchange. The Company, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional Paying
Agents reasonably acceptable to the Trustee. The term "Registrar" includes any
co-Registrar and the term "Paying Agent" includes any additional Paying Agent.
The Company initially appoints the Trustee as Registrar and Paying Agent until
such time as the Trustee has resigned or a successor has been appointed. The
Company may change any Registrar or Paying Agent without notice to any Holder.
The Company may act as Registrar or Paying Agent. In all circumstances, the
Company shall ensure that (i) at least one Paying Agent shall be located outside
the United Kingdom, (ii) at least one Paying Agent shall be, if and so long as
the Securities are listed on the Luxembourg Stock Exchange, located in
Luxembourg or such other place as the Luxembourg Stock Exchange may
Exh. T3C-32
approve and (iii) if and so long as the Securities are listed on any other
securities exchange, any applicable requirements of such exchange as to Paying
Agents are satisfied.
Section 2.04 Paying Agent To Hold Money in Trust; Conversion of
Applicable Currency. (a) Prior to each due date of the principal, interest and
Additional Amounts, if any, on any Security, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal, interest and Additional
Amounts, if any, when so becoming due. The Company shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Securityholders or the Trustee all money held
by the Paying Agent for the payment of principal of or interest or Additional
Amounts, if any, on the Securities and shall notify the Trustee of any default
by the Company in making any such payment. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate the money held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed by the Paying Agent. Upon complying with this Section, the
Paying Agent shall have no further liability for the money delivered to the
Trustee.
(b) The Paying Agent may act as a foreign exchange agent for
purposes of converting Deutsche Marks to U.S. dollars pursuant to paragraph 3 of
the Securities and, when acting as a foreign exchange agent, the Paying Agent
may derive profits from such activities in addition to the fees earned by it for
its services as Paying Agent and, if applicable, Trustee and Registrar. Each
such conversion shall be made on such terms, conditions, and charges not
inconsistent with the terms of the Securities as the Paying Agent may from time
to time establish in accordance with its regular foreign exchange practices, and
subject to applicable U.S. law and regulations.
Section 2.05 Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders of Definitive Securities. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee, in
writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of Securityholders of Definitive Securities.
Section 2.06 Transfer and Exchange. (a) Provisions Applicable Solely
to Initial Securities. The following procedures and restrictions shall not apply
with respect to Initial Securities transferred or exchanged for the account of a
Person who is not an Affiliate of the Company at the time of the transfer or
exchange and has not been an Affiliate during the preceding three months,
provided that a period of at least two years has elapsed since the later of the
date the Initial Securities were acquired from the Company or from an Affiliate
of the Company.
(i) Notwithstanding any other provisions of this Indenture or the
Securities, transfers of interests in an Initial Global Security of the
kinds described in clauses (1) through (5) below and exchanges of
interests in Initial Global Securities or of other Initial Securities as
described in clauses (6) through (9) below, shall be made only in
Exh. T3C-33
accordance with this Section 2.06(a), and all transfers of an interest in
the Regulation S Global Security shall comply with clause (10) below.
(1) Transfers of U.S. Global Security to Regulation S Global
Security During the Restricted Period. If the holder of a beneficial interest in
a U.S. Global Security wishes at any time during the Restricted Period to
transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in the Regulation S Global Security, such transfer
may be effected, subject to the rules and procedures of DTC, the Euroclear
Operator and Cedel, to the extent applicable (the "Applicable Procedures"), only
in accordance with the provisions of this Section 2.06(a)(i)(1). Upon receipt by
the Depositary of a certificate in substantially the form set forth in Exhibit C
given by the transferor, the Depositary shall present the Initial Global
Securities to the Trustee to reduce the principal amount of the appropriate U.S.
Global Security and to increase the principal amount of the Regulation S Global
Security, by the principal amount of the beneficial interest in such U.S. Global
Security to be so transferred, by annotation thereon.
(2) Transfers of U.S. Global Security to Regulation S Global
Security After the Expiration of the Restricted Period. If the holder of a
beneficial interest in a U.S. Global Security wishes at any time after the
expiration of the Restricted Period to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 2.06(a)(i)(2). Upon
receipt by the Depositary of a certificate in substantially the form set forth
in Exhibit D given by the transferor, the Depositary shall present the Initial
Global Securities to the Trustee to reduce the principal amount of the
appropriate U.S. Global Security, and to increase the principal amount of the
Regulation S Global Security, by the principal amount of the beneficial interest
in such U.S. Global Security to be so transferred, by annotation thereon.
(3) Transfers of Regulation S Global Security to U.S. Global
Security During the Restricted Period. If the holder of a beneficial interest in
the Regulation S Global Security wishes at any time during the Restricted Period
to transfer such interest to a Person who wishes to take delivery thereof in the
form of a beneficial interest in a U.S. Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with this
Section 2.06(a)(i)(3). Upon receipt by the Depositary with respect to a transfer
of a beneficial interest in the Regulation S Global Security during the
Restricted Period (but not after the expiration of the Restricted Period) of a
certificate in substantially the form set forth in Exhibit E given by the
transferor (and, in the case of a transfer to the IAI Global Security, a signed
letter from the transferee in substantially the form set forth in Annex A
thereto), the Depositary shall present the Initial Global Securities to the
Trustee to reduce the principal amount of the Regulation S Global Security, and
to increase the principal amount of the appropriate U.S. Global Security, by the
principal amount of the beneficial interest in the Regulation S Global Security
to be so transferred, by annotation thereon.
(4) Transfers of IAI Global Security to Rule 144A Global Security.
If the holder of a beneficial interest in the IAI Global Security (whether
during the Restricted Period or after the expiration of the Restricted Period)
wishes to transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the Rule 144A Global Security, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance
Exh. T3C-34
with this Section 2.06(a)(i)(4). Upon receipt by the Depositary of a certificate
in substantially the form set forth in Exhibit F given by the transferor, the
Depositary shall present the Initial Global Securities to the Trustee to reduce
the principal amount of the IAI Global Security from which such transfer is to
be made, and to increase the principal amount of the Rule 144A Global Security,
by the principal amount of the beneficial interest in the IAI Global Security to
be so transferred, by annotation thereon.
(5) Transfers of Rule 144A Global Security to IAI Global Security.
If the holder of a beneficial interest in the Rule 144A Global Security (whether
during the Restricted Period or after the expiration of the Restricted Period)
wishes to transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in the IAI Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in accordance with
this Section 2.06(a)(i)(5). Upon receipt by the Depositary of a certificate in
substantially the form set forth in Exhibit G given by the transferor and a
signed letter from the transferee substantially in the form set forth in Annex A
thereto, the Depositary shall present the Initial Global Securities to the
Trustee to reduce the principal amount of the Rule 144A Global Security from
which such transfer is to be made, and to increase the principal amount of the
IAI Global Security, by the principal amount of the beneficial interest in the
Rule 144A Global Security to be so transferred, by annotation thereon.
(6) Exchanges of U.S. Global Security for Regulation S Global
Security. If the holder of a beneficial interest in a U.S. Global Security
wishes at any time to exchange such interest for a beneficial interest in the
Regulation S Global Security, such exchange may be effected, subject to the
Applicable Procedures, only in accordance with the provisions of this Section
2.06(a)(i)(6). Upon receipt by the Depositary of a certificate in substantially
the form set forth in Exhibit H, given by the holder of the beneficial interest,
the Depositary shall present the Initial Global Securities to the Trustee to
reduce the principal amount of such U.S. Global Security, and to increase the
principal amount of the Regulation S Global Security, by the principal amount of
the beneficial interest in such U.S. Global Security to be so exchanged, by
annotation thereon.
(7) Exchanges of Regulation S Global Security for U.S. Global
Security. If the holder of a beneficial interest in the Regulation S Global
Security wishes at any time to exchange such interest for a beneficial interest
in a U.S. Global Security, such exchange may be effected, subject to the
Applicable Procedures, only in accordance with the provisions of this Section
2.06(a)(i)(7). Upon receipt by the Depositary of a certificate in substantially
the form set forth in Exhibit I, given by the holder of the beneficial interest,
the Depositary shall present the Initial Global Securities to the Trustee to
reduce the principal amount of the Regulation S Global Security, and to increase
the principal amount of such U.S. Global Security, by the principal amount of
the beneficial interest in the Regulation S Global Security to be so exchanged,
by annotation thereon.
(8) Exchanges of U.S. Global Security for another U.S. Global
Security. If the holder of a beneficial interest in a U.S. Global Security
wishes at any time to exchange such interest for a beneficial interest in the
other U.S. Global Security, such exchange may be effected, subject to the
Applicable Procedures, only in accordance with the provisions of this Section
2.06(a)(i)(8). Upon receipt by the Depositary of a certificate in substantially
the form set forth in Exhibit J given by the holder of the beneficial interest
(and including, in the case of an
Exh. T3C-35
exchange into the IAI Global Security, a signed letter substantially in the form
set forth in Annex A thereto), the Depositary shall present the Initial Global
Securities to the Trustee to reduce the principal amount of the U.S. Global
Security to be exchanged, and to increase the principal amount of the other U.S.
Global Security, by the principal amount of the beneficial interest in the U.S.
Global Security to be so exchanged, by annotation thereon.
(9) Other Exchanges. In the event that an Initial Global Security or
any portion thereof is exchanged for Initial Securities in definitive form
pursuant to Section 2.06(d) hereof, such Definitive Securities may in turn be
exchanged (on transfer or otherwise) for other Definitive Securities and only in
accordance with such procedures, which shall be substantially consistent with
the provisions of clauses (1) through (8) above and (10) below) (including the
certification requirements intended to ensure that transfers and exchanges of
beneficial interests in an Initial Security comply with U.S. securities laws and
any Applicable Procedure, as may from time to time be adopted by the Company and
the Registrar.
(10) Interests in Regulation S Global Security to be Held Through
the Euroclear Operator or Cedel. Until the expiration of the Restricted Period,
interests in the Regulation S Global Security may be held only through the
Euroclear Operator and Cedel; provided, however, that this clause (10) shall not
prohibit any transfer in accordance with Section 2.06(a)(i)(3).
(ii) Each Initial Security issued hereunder shall, upon issuance,
bear the applicable legend set forth on the form of the Security attached
hereto as Exhibit A and such legend shall not be removed from such Initial
Security except as provided in the next sentence. The legend required for
an Initial Security may be removed from an Initial Security if there is
delivered to the Company such satisfactory evidence, which may include an
opinion of independent counsel licensed to practice law in the State of
New York, as may be reasonably required by the Company, that neither such
legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Security shall not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the written direction of the Company, shall
authenticate and deliver in exchange for such Security another Security or
Securities having an equal aggregate principal amount that does not bear
such legend. If such a legend required for an Initial Security has been
removed from an Initial Security as provided above, no other Security
issued in exchange for all or any part of such Security shall bear such
legend, unless the Company has reasonable cause to believe that such other
Security is a "restricted security" within the meaning of Rule 144 and
instructs the Trustee to cause a legend to appear thereon.
(b) Any Initial Securities which are presented to the Trustee for
exchange pursuant to the Exchange Offer shall be exchanged for Exchange
Securities of equal principal amount upon surrender to the Trustee of the
Initial Securities to be exchanged; provided, however, that the Initial
Securities so surrendered for exchange shall be duly endorsed and accompanied by
a letter of transmittal or, in the case of Definitive Securities, written
instrument of transfer in form satisfactory to the Company, the Trustee and the
Registrar duly executed by the Holder thereof or his attorney who shall be duly
authorized in writing to execute such document. Whenever any Initial Securities
are so surrendered for exchange, the Company shall
Exh. T3C-36
execute, and the Trustee shall authenticate and deliver to the Holder the same
aggregate principal amount of Exchange Securities as those Initial Securities
that have been surrendered.
(c) Transfer of a Global Security shall be by delivery. Each Global
Security authenticated under this Indenture shall be in bearer form and
delivered to the Depositary or a nominee or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of this
Indenture.
(d) All Global Securities shall be exchanged by the Company (with
authentication by the Trustee) for one or more Definitive Securities, if (a) DTC
(i) has notified the Company that it is unwilling or unable to continue as, or
ceases to be, a clearing agency registered under the Exchange Act and (ii) a
successor to DTC registered as a clearing agency under the Exchange Act is not
able to be appointed by the Company within 90 days of such notification or (b)
the Depositary is at any time unwilling or unable to continue as Depositary and
a successor Depositary is not able to be appointed by the Company within 90
days. If an Event of Default occurs and is continuing, the Company shall, at the
request of the Holder thereof, exchange all or part of a Global Security for one
or more Definitive Securities (with authentication by the Trustee); provided,
however, that the principal amount at maturity of such Definitive Securities and
such Global Security after such exchange shall be DM1,000 or integral multiples
thereof. Whenever all of a Global Security is exchanged for one or more
Definitive Securities, it shall be surrendered by the Holder thereof to the
Trustee for cancelation. Whenever a part of a Global Security is exchanged for
one or more Definitive Securities the Global Security shall be surrendered by
the Holder thereof to the Trustee who shall cause an adjustment to be made to
Schedule A of such Global Security such that the principal amount of such Global
Security shall be equal to the portion of such Global Security not exchanged and
shall thereafter return such Global Security to such Holder. All Definitive
Securities issued in exchange for a Global Security or any portion thereof shall
be registered in such names as the Depositary shall instruct the Trustee based
on the instructions of DTC. Every Security authenticated and delivered in
exchange for or in lieu of a Global Security, or any portion thereof, pursuant
to Section 2.06(a), 2.06(b), 2.07, 2.09 or 3.06 hereof or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security. A
Global Security may not be exchanged for a Definitive Security other than as
provided in this Section 2.06(d).
(e) Definitive Securities shall be transferable only upon the
surrender of a Definitive Security for registration of transfer. When a
Definitive Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if its requirements for such transfers are met. When a Definitive
Security is presented to the Registrar or co-registrar with a request to
transfer in part, the transferor shall be entitled to receive without charge a
Definitive Security representing the balance of such Definitive Security not
transferred. When Definitive Securities are presented to the Registrar or a co-
registrar with a request to exchange them for an equal aggregate principal
amount of Definitive Securities of other denominations, the Registrar shall make
the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Definitive Securities at the Registrar's or co-
registrar's request.
Exh. T3C-37
(f) The Company shall not be required to make, and the Registrar
need not register transfers or exchanges of, Definitive Securities selected for
redemption (except, in the case of Definitive Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Definitive Securities for a
period of 15 days before a selection of Definitive Securities to be redeemed.
(g) Prior to the due presentation for registration of transfer of
any Definitive Security, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the Person in whose name a
Definitive Security is registered as the absolute owner of such Definitive
Security for the purpose of receiving payment of principal, interest or
Additional Amounts, if any, on such Definitive Security and for all other
purposes whatsoever, whether or not such Definitive Security is overdue, and
none of the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar shall be affected by notice to the contrary.
(h) The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with any transfer
or exchange pursuant to this Section 2.06 (other than in respect of the
Registered Exchange Offer, except as otherwise provided in the Exchange and
Registration Rights Agreement).
(i) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
(j) Holders of Initial Securities (or holders of interests therein)
and prospective purchasers designated by such Holders (or holders of interests
therein) shall have the right to obtain from the Company upon request by such
Holders (or holders of interests therein) or prospective purchasers, during any
period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act or exempt from reporting pursuant to 12g3-2(b) under the Exchange
Act, the information required by paragraph d(4)(i) of Rule 144A in connection
with any transfer or proposed transfer of such Securities.
Section 2.07 Replacement Securities. If a mutilated Definitive
Security is surrendered to the Registrar, if a mutilated Global Security is
surrendered to the Trustee or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security in such form as the
Security being replaced if the requirements of Section 8-405 of the Uniform
Commercial Code are met, such that the Holder (i) notifies the Company or the
Trustee within a reasonable time after he has notice of such loss, destruction
or wrongful taking and the Registrar, in the case of Definitive Securities, does
not register a transfer prior to receiving such notification, (ii) so requests
the Company or the Trustee prior to the Security being acquired by a bona fide
purchaser and (iii) satisfies any other reasonable requirements of the Trustee.
If required by the Trustee or the Company, such Holder shall furnish an
indemnity bond sufficient in the judgment of the Trustee to protect the Company,
the Trustee, the Paying Agent, the Registrar and any co-registrar from any loss
that any of them may suffer if a Security is replaced. The Company and the
Trustee may charge the Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
Exh. T3C-38
Section 2.08 Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancelation and those described in this Section
as not outstanding. Subject to Section 10.06, a Security does not cease to be
outstanding because the Company or an Affiliate of the Company holds the
Security.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal, interest and Additional Amounts, if any, payable on that date
with respect to the Securities (or portions thereof) to be redeemed or maturing,
as the case may be, and the Paying Agent is not prohibited from paying such
money to the Securityholders on that date pursuant to the terms of this
Indenture, then on and after that date such Securities (or portions thereof)
cease to be outstanding and interest and Additional Amounts, if any, on them
cease to accrue.
Section 2.09 Temporary Securities. Until permanent Definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Definitive Securities upon receipt of a Company Order in
the form of an Officers' Certificate. The Officers' Certificate shall specify
the amount of temporary Definitive Securities to be authenticated and the date
on which the temporary Definitive Securities are to be authenticated. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate upon receipt of a Company Order pursuant to Section 2.02 permanent
Definitive Securities and deliver them in exchange for temporary Definitive
Securities.
Section 2.10 Cancelation. The Company at any time may deliver
Securities to the Trustee for cancelation. The Registrar and the Paying Agent
shall cancel and forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee, at the written
direction of the Company, shall destroy any canceled securities and deliver a
certificate of such destruction to the Company, unless the Company directs the
Trustee in writing to deliver canceled Securities to the Company. Subject to
Section 2.07, the Company may not issue new Securities to replace Securities it
has redeemed, paid or delivered to the Trustee for cancelation. The Trustee
shall not authenticate Securities in place of canceled Securities other than
pursuant to the terms of this Indenture. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancelation pursuant to this Section 2.10.
Section 2.11 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay the defaulted
interest (plus interest on such defaulted interest to the extent lawful) to, in
the case Definitive Securities, the Persons who are Securityholders on a
subsequent special record date and, in the case of a Global Security, to the
Holder thereof (but only in respect of the principal amount of such Global
Security on such
Exh. T3C-39
date), which date shall be the fifteenth day next preceding the date fixed by
the Company for the payment of defaulted interest. The Company shall notify the
Trustee and Paying Agent in writing of the amount of defaulted interest proposed
to be paid on each Security and the date of the proposed payment (a "Default
Interest Payment Date"), and at the same time the Company shall deposit with the
Trustee or Paying Agent 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 or Paying Agent for such deposit prior
to 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 Section 2.11; provided, however, that in no event shall the Company deposit
monies proposed to be paid in respect of defaulted interest later than 10:00
a.m. New York City time on the proposed Default Interest Payment Date. At least
15 days before the subsequent special record date, the Company shall publish in
a leading newspaper having a general circulation in New York (which is expected
to be the Wall Street Journal) (and so long as the Securities are listed on the
Luxembourg Stock Exchange and the rules of such Stock Exchange shall so require,
a newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or, in the case of Definitive Securities, mail by
first-class mail to each Holder's registered address, with a copy to the
Trustee, a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid. Such notice shall also be given in
accordance with the applicable requirements of any other securities exchange on
which the Securities are listed.
Section 2.12 CUSIP and CINS Numbers. The Company in issuing the
Securities may use a "CUSIP" or "CINS" number (if then generally in use) and, if
so, the Trustee shall use the "CUSIP" or "CINS" number in notices of redemption
as a convenience to Holders; provided, however, that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company shall promptly notify the Trustee of any
change in the CUSIP or CINS number.
Section 2.13 Deposit of Moneys. In the case of the Regulation S
Global Security (except as set forth below) and any Definitive Securities, prior
to 10:00 a.m. London time on the second Business Day preceding each Interest
Payment Date or the Maturity Date and on the Business Day immediately following
any acceleration of the Notes pursuant to Section 6.02, the Company shall
deposit with the Paying Agent in immediately available funds money in such coin
or currency of the Federal Republic of Germany as at the time of payment shall
be legal tender for payment of public and private debts, sufficient to make cash
payments, if any, due on such Interest Payment Date, Maturity Date or Business
Day, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, Maturity Date or
Business Day, as the case may be.
In the case of the Rule 144A Global Security and the IAI Global
Security, in the event any Holder elects to receive payment in Deutsche Marks
pursuant to paragraph 3 of the Notes, then prior to 10:00 a.m. London time on
the second Business Day preceding each Interest Payment Date or the Maturity
Date and on the Business Day immediately following any
Exh. T3C-40
acceleration of the Notes pursuant to Section 6.02, the Company shall deposit
with the Paying Agent in immediately available funds money in such coin or
currency of the Federal Republic of Germany as at the time of payment shall be
legal tender for payment of public and private debts, sufficient to make cash
payments, if any, due on such Interest Payment Date, Maturity Date or Business
Day, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to such Holders on such Interest Payment Date, Maturity Date or
Business Day, as the case may be. In the event the Holders do not elect to
receive payment in Deutsche Marks pursuant to paragraph 3 of the Notes (and, in
the case of the Regulation S Global Security, in the event the Holders do not
provide the DTC with payment instructions for receipt of payments in Deutsche
Marks), then prior to 10:00 a.m. London time on the third Business Day preceding
each Interest Payment Date or the Maturity Date and on the Business Day
immediately following any acceleration of the Notes pursuant to Section 6.02,
the Company shall deposit with the Paying Agent in immediately available funds
money in such coin or currency of the Federal Republic of Germany as at the time
of payment shall be legal tender for payment of public and private debts,
sufficient to make cash payments, if any, due on such Interest Payment Date,
Maturity Date or Business Day, as the case may be, in a timely manner which
permits the Paying Agent to remit payment to such Holders on such Interest
Payment Date, Maturity Date or Business Day, as the case may be.
Payments with respect to the Rule 144A Global Security and the IAI
Global Security shall be converted by the Paying Agent into U.S. dollars prior
to payment, except to the extent DTC notifies the Paying Agent that a holder of
a beneficial interest in the Rule 144A Global Security or the IAI Global
Security has elected to receive payment in Deutsche Marks in accordance with
governing DTC procedures.
Section 2.14 Certain Matters Relating to Global Securities.
(a) Owners of beneficial interests in any Global Security shall have
no rights under this Indenture with respect to such Global Security held on
their behalf by the Depositary or under the Global Security, and the Depositary
may be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the Global Security for all purposes
whatsoever, except as otherwise provided herein. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Security.
(b) The Holder of any Global Security may grant proxies and
otherwise authorize any person to take any action which a Holder is entitled to
take under this Indenture or the Securities.
(c) Substitution of Currency. If the Federal Republic of Germany
adopts the Euro, the regulations of the European Commission relating to the euro
shall apply to the Securities and the Indenture. The circumstances and
consequences described in this Section 2.15 entitle neither the Company nor any
Holder to early redemption, rescission, notice, repudiation, adjustment or
renegotiation of the terms and conditions of the Securities or the Indenture or
to
Exh. T3C-41
raise other defenses or to request any compensation claim, nor shall they affect
any of the other obligations of the Company under the Securities and this
Indenture.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee. If the Company elects to redeem
Securities pursuant to paragraph 6 or 7 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
shall occur.
The Company shall give each notice to the Trustee provided for in
this Section at least 45 days before the redemption date and at least 15 days
prior to the giving of the notice contemplated by Section 3.03 unless the
Trustee consents to a shorter period. Such notice to the Trustee shall be
accompanied by an Officers' Certificate and an Opinion of Counsel from the
Company to the effect that such redemption shall comply with the conditions
herein. If fewer than all the Securities are to be redeemed, the record date
relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall be not fewer than 15 days after the date of
notice to the Trustee. Any such notice may be canceled at any time prior to
notice of such redemption being published or mailed to any Holder and shall
thereby be void and of no effect.
Section 3.02 Selection of Securities To Be Redeemed. If fewer than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed in compliance with the requirements of the principal securities
exchange, if any, on which such Securities are listed or, if such Securities are
not so listed or such exchange prescribes no method of selection, on a pro rata
basis by lot or by such other method that the Trustee in its sole discretion
shall deem to be fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances (and in
such manner as complies with applicable legal and exchange requirements). The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than DM1,000 in original
principal amount. Securities and portions of them the Trustee selects shall be
in amounts of DM1,000 or a whole multiple of DM1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be redeemed.
Section 3.03 Notice of Redemption. At least 30 days but not more
than 60 days before a date for redemption of Securities, the Company shall
publish in a leading newspaper having a general circulation in New York (which
is expected to be the Wall Street Journal), or, in the case of Definitive
Securities, mail or cause to be mailed a notice of redemption by first class
mail, postage prepaid, to the registered address of each Holder whose Securities
are to be redeemed.
Exh. T3C-42
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price and the amount of accrued and unpaid
interest, if any, and Additional Amounts, if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price plus accrued and unpaid interest,
if any, and Additional Amounts, if any;
(5) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities (or
portion thereof) to be redeemed;
(6) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant to
the terms of this Indenture, interest and Additional Amounts, if any, on
Securities (or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) (i) if any Global Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed and that, after
the redemption date, interest and Additional Amounts, if any, shall cease to
accrue on the portion called for redemption, and upon surrender of such Global
Security, the Global Security with a notation on Schedule A thereof adjusting
the principal amount thereof to be equal to the unredeemed portion, shall be
returned and (ii) if any Definitive Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed, and that, after
the redemption date, upon surrender of such Definitive Security, a new
Definitive Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof shall be issued in the name of the Holder thereof,
upon cancelation of the original Security;
(8) the paragraph of the Securities pursuant to which the Securities
called for redemption are being redeemed;
(9) the CUSIP or CINS number, if any, printed on the Securities
being redeemed; and
(10) that no representation is made as to the correctness or
accuracy of the CUSIP or CINS number, if any, listed in such notice or printed
on the Securities.
If at the time a notice of redemption is being made to Holders of
Securities pursuant to this Section 3.04, Securities are listed on the
Luxembourg Stock Exchange, and so long as the rules of the Luxembourg Stock
Exchange so require, the Company shall also cause a notice of redemption to be
published in a leading daily newspaper of general circulation in Luxembourg
(which is expected to be the Luxemburger Wort), at least 30 days but not more
than 60 days before the Redemption Date. Notice of redemption shall also be
given in accordance
Exh. T3C-43
with any applicable requirements of any other securities exchange on which the
Securities are listed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
Section 3.04 Effect of Notice of Redemption. Once notice of
redemption is given in accordance with Section 3.03, Securities called for
redemption become due and payable on the redemption date and at the redemption
price plus accrued and unpaid interest and Additional Amounts, if any, stated in
the notice. Upon surrender to the Trustee or Paying Agent, such Securities shall
be paid at the redemption price stated in the notice, plus accrued interest and
Additional Amounts, if any, to the redemption date; provided that in the case of
Definitive Securities if the redemption date is after a regular record date and
on or prior to the interest payment date, the accrued interest shall be payable
to the Securityholder of the redeemed Securities registered on the relevant
record date. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
Section 3.05 Deposit of Redemption Price. In the case of the
Regulation S Global Security (except as set forth below) or any Definitive
Securities, prior to 10:00 a.m. London time on the second Business Day preceding
any redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
in immediately available funds money in such coin or currency of the Federal
Republic of Germany as at the time of payment shall be legal tender for payment
of public and private debts, sufficient to pay the redemption price of and
accrued and unpaid interest and Additional Amounts, if any, on all Securities to
be redeemed on that date other than Securities or portions of Securities called
for redemption that have been delivered by the Company to the Trustee for
cancelation.
In the case of the Rule 144A Global Security and the IAI Global
Security, in the event any Holder elects to receive payment in Deutsche Marks
pursuant to paragraph 3 of the Notes, then prior to 10:00 a.m. London time on
the second Business Day preceding any redemption date, the Company shall deposit
with the Paying Agent (or, if the Company or a Subsidiary is the Paying Agent,
shall segregate and hold in trust) in immediately available funds money in such
coin or currency of the Federal Republic of Germany as at the time of payment
shall be legal tender for payment of public and private debts, sufficient to pay
the redemption price of and accrued and unpaid interest and Additional Amounts,
if any, on all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption that have been delivered by the
Company to the Trustee for cancelation. In the event the Holders do not elect to
receive payment in Deutsche Marks pursuant to paragraph 3 of the Notes (and, in
the case of the Regulation S Global Security, in the event the Holders do not
provide the DTC with payment instructions for receipt of payments in Deutsche
Marks), then prior to 10:00 a.m. London time on the third Business Day preceding
any redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
in immediately available funds money in such coin or currency of the Federal
Republic of Germany as at the time of payment shall be legal tender for payment
of public and private debts, sufficient to pay the redemption price of and
accrued and unpaid
Exh. T3C-44
interest and Additional Amounts, if any, on all Securities to be redeemed on
that date other than Securities or portions of Securities called for redemption
that have been delivered by the Company to the Trustee for cancelation.
If any Security surrendered for redemption in the manner provided in
the Securities shall not be so paid on the redemption date due to the failure of
the Company to deposit sufficient funds with the Paying Agent, the principal
amount at maturity thereof, premium, if any, accrued and unpaid interest and
Additional Amounts, if any, thereon shall, until paid, bear interest as provided
in Section 4.01 with respect to any payment default.
Section 3.06 Securities Redeemed in Part. Upon surrender of a
Definitive Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder (at the Company's expense)
a new Definitive Security equal in principal amount to the unredeemed portion of
the Definitive Security surrendered. Upon surrender of a Global Security that is
redeemed in part, the Paying Agent shall forward such Global Security to the
Trustee who shall make a notation on Schedule A thereof to reduce the principal
amount of such Global Security to an amount equal to the unredeemed portion of
the Global Security surrendered.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Securities. The Company shall promptly pay
the principal of and interest and Additional Amounts, if any, on the Securities
on the dates and in the manner provided in the Securities and in this Indenture.
Principal, interest and Additional Amounts shall be considered paid on the date
due if at 10:00 a.m. London time on such date the Trustee or the Paying Agent
holds in accordance with this Indenture money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal, interest and Additional Amounts then due and the Trustee or the
Paying Agent, as the case may be, is not prohibited from paying such money to
the Securityholders on that date pursuant to the terms of this Indenture. The
Company shall pay interest on overdue principal at the rate specified therefor
in the Securities, and it shall pay interest on overdue installments of interest
at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency; Reports to Holders.
(a) The Company shall maintain the office or agency (which office may be an
office of the Trustee or an affiliate of the Trustee, Registrar or co-Registrar)
required under Section 2.03 where Securities may be surrendered for registration
of transfer or for exchange and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Company shall
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 10.02.
The Company hereby initially designates the office of the Trustee, located at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its office or agency outside the
United Kingdom as required under Section 2.03 hereof.
Exh. T3C-45
(b) Whether or not required by the rules and regulations of the
Commission, the Company shall furnish to the holders of the Securities (i) all
annual and quarterly financial information that would be required to be
contained in a filing with the Commission on Forms 20-F and 10-Q (or any
successor forms) if the Company were required to file such Forms (except that
quarterly financial information need not contain any reconciliation to U.S.
generally accepted accounting principles), including a "Management's Discussion
and Analysis of Financial Conditions and Results of Operations" and, with
respect to the annual financial information, a report thereon by the Company's
certified independent accounts and (ii) all information that would be required
to be contained in current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports;
provided, however, that (x) such quarterly financial information may be prepared
in accordance with generally accepted accounting principles in the United
Kingdom, shall be furnished within 60 days following the end of each fiscal
quarter of the Company and may be provided in a report on Form 6-K, (y) such
annual financial information shall be furnished within 120 days following the
end of the fiscal year of the Company and (z) such information that would be
required to be contained in a report on Form 8-K may be provided in a report on
Form 6-K. In addition, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability (unless the Commission will
not accept such a filing). In addition, the Company shall furnish to the Holders
of the Securities and to prospective investors, upon the requests of such
Holders, any information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act so long as the Securities are not freely transferable
under the Act by Persons not "affiliates" under the Securities Act. The Company
shall also comply with the provisions of TIA Section 314(a).
Section 4.03 Limitation on Indebtedness. (a) The Company shall not,
and shall not permit any Restricted Subsidiary to, Incur any Indebtedness;
provided, however, that the Company or a Restricted Subsidiary may Incur
Indebtedness if on the date thereof the Consolidated Coverage Ratio would be
greater than 2.0:1. Notwithstanding the foregoing, the Company shall not permit
any Restricted Subsidiary to issue, to any party other than the Company or a
Wholly Owned Subsidiary of the Company, (i) any Preferred Stock or (ii) any
Indebtedness that by its terms is subordinated or junior in right of payment to
any other Indebtedness of such Restricted Subsidiary.
(b) Notwithstanding the foregoing paragraph (a), the Company and its
Restricted Subsidiaries may Incur the following Indebtedness (hereafter
"Permitted Indebtedness"):
(i) Indebtedness (x) of the Company under the Revolving Facility (as
the same may be amended from time to time without increasing the committed
amount available or outstanding, except as otherwise permitted by this
Section) and (y) of the Company and Restricted Subsidiaries under other
credit agreements in an aggregate principal amount at any time outstanding
for both (x) and (y) not to exceed the greater of (A) (Pounds)15.0
million, less any repayments and commitment reductions made pursuant to
clause (a)(iii)(A) of Section 4.06, and (B) the Borrowing Base at the time
such Indebtedness is Incurred;
Exh. T3C-46
(ii) Indebtedness of the Company owing to and held by any Wholly
Owned Subsidiary or Indebtedness of a Restricted Subsidiary owing to and
held by the Company or any Wholly Owned Subsidiary; provided, however,
that any subsequent issuance or transfer of any Capital Stock or any other
event that results in any such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any subsequent transfer of any such
Indebtedness (except to the Company or a Wholly Owned Subsidiary) shall be
deemed, in each case, to constitute the Incurrence of such Indebtedness by
the issuer thereof;
(iii) Indebtedness represented by the Securities; (iv) any
Indebtedness (other than the Indebtedness described in clauses (i) through
(iii) above) outstanding on the Issue Date; (v) any Refinancing
Indebtedness Incurred in respect of any Indebtedness described in clause
(i), (iii), or (iv) or paragraph (a) above;
(iv) (A) Indebtedness or Preferred Stock of a Restricted Subsidiary
Incurred and outstanding on or prior to the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness or
Preferred Stock Incurred in contemplation of, or to provide all or any
portion of the funds or credit support utilized to consummate, the
transaction or series of related transactions pursuant to which such
Restricted Subsidiary became a Subsidiary or was otherwise acquired by the
Company); provided, however, that at the time such Restricted Subsidiary
is acquired
(v) by the Company, the Company would have been able to Incur $1.00
of additional Indebtedness pursuant to paragraph (a) after giving effect
to such acquisition (including the Incurrence of such Indebtedness or
Preferred Stock pursuant to this clause (vi)) and (B) Refinancing
Indebtedness Incurred by a Restricted Subsidiary in respect of
Indebtedness Incurred by such Restricted Subsidiary pursuant to this
clause (vi);
(vi) Indebtedness (A) in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds provided by the
Company and its Restricted Subsidiaries in the ordinary course of their
business and which do not secure other Indebtedness, and (B) of the
Company or any Restricted Subsidiary under Currency Agreements and
Interest Rate Agreements, in each case entered into for bona fide hedging
purposes of the Company or such Restricted Subsidiary in the ordinary
course of business and not for purposes of speculation; provided, however,
that, in the case of Currency Agreements and Interest Rate Agreements,
such Currency Agreements and Interest Rate Agreements do not increase the
Indebtedness of the Company or any Restricted Subsidiary outstanding at
any time other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder;
(vii) Purchase Money Indebtedness and Capitalized Lease Obligations
in an aggregate principal amount on the date of Incurrence which, when
added to all other Purchase Money Indebtedness and Capitalized Lease
Obligations Incurred pursuant to this clause (viii) and then outstanding,
shall not exceed (Pounds)5.0 million;
(viii) Indebtedness (other than Indebtedness permitted to be
Incurred pursuant to paragraph (a) or any other clause of this paragraph
(b)) in an aggregate principal amount
Exh. T3C-47
on the date of Incurrence which, when added to all other Indebtedness
Incurred pursuant to this clause (ix) and then outstanding, shall not
exceed (Pounds)12.0 million;
(ix) Indebtedness represented by a grant or advance made available
by a federal, state or governmental agency or department or other like
body which is repayable only upon the Company or a Restricted Subsidiary
(as the case may be) failing to satisfy one or more conditions set out in
the terms of such grant or advance, provided there has been no such
failure to satisfy any of such conditions, not to exceed (Pounds)1.0
million outstanding from time to time;
(x) Indebtedness arising from indemnification agreements or purchase
price adjustments in the ordinary course of business; or (xii)
Indebtedness owed in respect of compensation claims or other employee
insurance arrangements in the ordinary course of business. (c)
Notwithstanding the foregoing, the Company may not Incur any Indebtedness
pursuant to paragraph (b) above if the proceeds thereof are used, directly
or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Obligations unless such Indebtedness shall be
subordinated to the Securities to at least the same extent as such
Subordinated Obligations.
(xi) Notwithstanding any other provision of this Section 4.03, the
maximum amount of Indebtedness that the Company or any Restricted
Subsidiary may Incur pursuant to this Section shall not be deemed to be
exceeded solely as a result of fluctuations in the exchange rates of
currencies. For purposes of determining the outstanding principal amount
of any particular Indebtedness Incurred pursuant to this Section 4.03, (i)
Indebtedness Incurred pursuant to the Credit Agreement prior to or on the
date of the Indenture shall be treated as Incurred pursuant to clause (i)
of paragraph (b) above, (ii) Indebtedness permitted by this Section 4.03
need not be permitted solely by reference to one provision permitting such
Indebtedness but may be permitted in part by one such provision and in
part by one or more other provisions of this Section permitting such
Indebtedness and (iii) in the event that Indebtedness or any portion
thereof meets the criteria of more than one of the types of Indebtedness
described in this Section, the Company, in its sole discretion, shall
classify such Indebtedness and only be required to include the amount of
such Indebtedness in one of such clauses.
Section 4.04 Limitation on Restricted Payments. (a) The Company
shall not, and shall not permit any Restricted Subsidiary, directly or
indirectly, to:
(i) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company) except (A) dividends or
distributions payable solely in its Capital Stock (other than Disqualified
Stock) and (B)
(ii) dividends or distributions payable to the Company or another
Restricted Subsidiary (and, if such Restricted Subsidiary is not wholly
owned and such dividend or distribution is being paid on Voting Stock
other than Preferred Stock, to its other shareholders on a pro rata
basis);
Exh. T3C-48
(iii) purchase, redeem, retire or otherwise acquire for value any
Capital Stock of the Company held by any Person or any Capital Stock of a
Restricted Subsidiary held by any Affiliate of the Company (other than a
Restricted Subsidiary);
(iv) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, prior to scheduled maturity, scheduled repayment or
scheduled sinking fund payment any Subordinated Obligations (other than
the purchase, repurchase or other acquisition of Subordinated Obligations
purchased in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year
of the date of acquisition); or (iv) make any Investment (other than a
Permitted Investment) in any Person (any such dividend, distribution,
purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment described in clauses (i) through (iv) hereof
being herein referred to as a "Restricted Payment") if at the time the
Company or such Restricted Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company could not Incur at least $1.00 of additional
Indebtedness under paragraph (a) of Section 4.03; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors, whose determination shall be
conclusive and evidenced by a resolution of the Board of Directors) declared or
made subsequent to the Issue Date would exceed the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from January
1, 1998, to the end of the most recent fiscal quarter
ending at least 45 days prior to the date of such
Restricted Payment, (or, in case such Consolidated Net
Income shall be a deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Company
from the issue or sale of its Capital Stock (other than
Disqualified Stock) subsequent to the Issue Date (other
than an issuance or sale to a Subsidiary of the Company
or an employee stock ownership plan or other trust
established by the Company or any of its Subsidiaries;
(C) the amount by which Indebtedness of the Company or its
Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other
than by a Subsidiary) subsequent to the Issue Date of
any Indebtedness of the Company or its Restricted
Subsidiaries issued after the Issue Date that is
convertible or exchangeable for Capital Stock (other
than Disqualified Stock) of the Company (less the amount
of any cash or other property distributed by the Company
or any Restricted Subsidiary upon such conversion or
exchange); and
Exh. T3C-49
(D) the amount equal to the net reduction in Investments in
Unrestricted Subsidiaries resulting from (i) payments of
dividends, repayments of the principal of loans or
advances or other transfers of assets to the Company or
any Restricted Subsidiary from Unrestricted Subsidiaries
or (ii) the redesignation of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as
provided in the definition of "Investment") not to
exceed, in the case of any Unrestricted Subsidiary, the
amount of Investments previously made by the Company or
any Restricted Subsidiary in such Unrestricted
Subsidiary, which amount was included in the calculation
of the amount of Restricted Payments.
(b) The provisions of the foregoing paragraph (a) shall not
prohibit:
(i) any purchase or redemption of Capital Stock of the Company or
Subordinated Obligations made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary or an employee stock ownership plan or other trust established
by the Company or any of its Subsidiaries; provided, however, that (A)
such purchase or redemption shall be excluded in the calculation of the
amount of Restricted Payments and (B) the Net Cash Proceeds from such sale
shall be excluded from clause (3)(B) of paragraph (a) above;
(ii) any purchase or redemption of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Indebtedness of the Company which is permitted to be Incurred pursuant
to paragraph (b) of Section 4.03; provided, however, that such purchase or
redemption shall be excluded in the calculation of the amount of
Restricted Payments;
(iii) any purchase or redemption of Subordinated Obligations from
Net Available Cash to the extent permitted by Section 4.06; provided,
however, that such purchase or redemption shall be excluded in the
calculation of the amount of Restricted Payments;
(iv) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with Section 4.04(a); provided, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments; or
(v) the repurchase of shares of, or options to purchase shares of,
common stock of the Company or any of its Subsidiaries from employees,
former employees, directors or former directors of the Company or any of
its Subsidiaries (or permitted transferees of such employees, former
employees, directors or former directors), pursuant to the terms of the
agreements (including employment agreements) or plans (or amendments
thereto) approved by the Board of Directors under which such individuals
purchase or sell or are granted the option to purchase or sell, shares of
such common stock; provided, however, that the aggregate amount of such
repurchases shall not exceed (Pounds)1.0
Exh. T3C-50
million in any calendar year; provided further, however, that such
repurchases shall be excluded in the calculation of the amount of
Restricted Payments.
Section 4.05 Limitation on Restrictions on Distributions from
Restricted Subsidiaries. The Company shall not, and shall not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (i) pay dividends or make any other distributions on
its Capital Stock or pay any Indebtedness owed to the Company or any Restricted
Subsidiary, (ii) make any loans or advances to the Company or any Restricted
Subsidiary or (iii) transfer any of its property or assets to the Company or any
Restricted Subsidiary, except:
(1) any encumbrance or restriction arising under applicable law;
(2) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date;
(3) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred by
such Restricted Subsidiary prior to the date on which such Restricted Subsidiary
was acquired by the Company (other than Indebtedness Incurred in contemplation
of, or to provide all or any portion of the funds or credit support utilized to
consummate, the transaction or series of related transactions pursuant to which
such Restricted Subsidiary became a Restricted Subsidiary or was otherwise
acquired by the Company) and outstanding on such date;
(4) any encumbrance or restriction pursuant to an agreement
constituting Refinancing Indebtedness of Indebtedness Incurred pursuant to an
agreement referred to in clause (1) or (2) of this Section or this clause (3) or
contained in any amendment to an agreement referred to in clause (1) or (2) of
this Section or this clause (3); provided, however, that the encumbrances and
restrictions contained in any such refinancing agreement or amendment are no
less favorable to the Securityholders than encumbrances and restrictions
contained in such agreements;
(5) in the case of clause (iii), 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,
(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 the Indenture or (C) contained in
security agreements or mortgages securing Indebtedness of a Restricted
Subsidiary to the extent such encumbrance or restrictions restrict the transfer
of the property subject to such security agreements or mortgages;
(6) 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 the Capital Stock or assets of such Restricted Subsidiary
pending the closing of such sale or disposition; and
(7) Purchase Money Indebtedness and Capital Lease Obligations
permitted by clause (viii) of Section 4.03.
Exh. T3C-51
Nothing contained in this Section 4.05 shall prevent the Company
from entering into any agreement or instrument providing for the incurrence of
Permitted Liens, nor shall this Section 4.05 be deemed to restrict the sale or
other disposition of property or assets of the Company or any of its Restricted
Subsidiaries in compliance with the other provisions of the Indenture.
Section 4.06 Limitation on Sales of Assets and Subsidiary Stock. (a)
The Company shall not, and shall not permit any Restricted Subsidiary to, make
any Asset Disposition unless:
(i) the Company or such Restricted Subsidiary receives consideration
(including by way of relief from, or by any other Person assuming sole
responsibility for, any liabilities, contingent or otherwise) at the time
of such Asset Disposition at least equal to the fair market value of the
shares and assets subject to such Asset Disposition;
(ii) at least 80% of the consideration thereof received by the
Company or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; and
(iii) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Restricted
Subsidiary, as the case may be):
(A) first, to the extent the Company elects (or is required
by the terms of any Senior Indebtedness or Indebtedness
(other than Preferred Stock) of a Wholly Owned
Subsidiary), to prepay, repay or purchase Senior
Indebtedness (other than the Securities) or Indebtedness
(other than Preferred Stock) of a Wholly Owned
Subsidiary (in each case other than Indebtedness owed to
the Company or an Affiliate of the Company) within 365
days after the later of the date of such Asset
Disposition or the receipt of such Net Available Cash;
(B) second, to the extent of the balance of Net Available
Cash after application in accordance with clause (A), to
the extent the Company or such Restricted Subsidiary
elects, to reinvest in Additional Assets (including by
means of an Investment in Additional Assets by a
Restricted Subsidiary with Net Available Cash received
by the Company or another Restricted Subsidiary) within
365 days from the later of such Asset Disposition or the
receipt of such Net Available Cash;
(C) third, to the extent of the balance of such Net
Available Cash after application in accordance with
clauses (A) and (B), to make an Offer (as defined below)
to purchase Securities pursuant to and subject to the
conditions of Section 4.06(b), and
(D) fourth, to the extent of the balance of such Net
Available Cash after application in accordance with
clauses (A), (B) and (C), to (x) acquire Additional
Assets (other than Indebtedness and Capital
Exh. T3C-52
Stock) or (y) prepay, repay or purchase Indebtedness of
the Company (other than Indebtedness owed to an
Affiliate of the Company and other than Disqualified
Stock of the Company) or Indebtedness of any Restricted
Subsidiary (other than Indebtedness owed to the Company
or an Affiliate of the Company), in each case described
in this clause (D) within one year from the receipt of
such Net Available Cash or, if the Company has made an
Offer pursuant to clause (C), six months from the date
such Offer is consummated;
provided, however, that in connection with any prepayment, repayment or purchase
of Indebtedness pursuant to clause (A), (C) or (D) above, the Company or such
Restricted Subsidiary shall retire such Indebtedness and shall cause the related
loan commitment (if any) to be permanently reduced in an amount equal to the
principal amount so prepaid, repaid or purchased.
Notwithstanding the foregoing provisions of this Section 4.06, the
Company and the Restricted Subsidiaries shall not be required to apply any Net
Available Cash in accordance with this Section 4.06 except to the extent that
the aggregate Net Available Cash from all Asset Dispositions that is not applied
in accordance with this Section 4.06 exceeds (Pounds)3.0 million.
For the purposes of this Section 4.06, the following are deemed to
be cash: (x) the assumption of Indebtedness of the Company (other than
Disqualified Stock of the Company) or any Restricted Subsidiary and the release
of the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition and (y) securities
received by the Company or any Restricted Subsidiary from the transferee that
are promptly converted by the Company or such Restricted Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase
of Securities pursuant to clause (a)(iii)(C) of this Section 4.06, the Company
shall be required to purchase Securities tendered pursuant to an offer by the
Company for the Securities (the "Offer") at a purchase price of 100% of their
principal amount plus accrued interest and Additional Amounts, if any, to the
date of purchase (and, in the case of Definitive Securities, subject to the
right of Holders of record on a record date to receive interest on the relevant
interest payment date and Additional Amounts, if any, in respect thereof) in
accordance with the procedures (including prorationing in the event of
oversubscription) set forth in Section 4.06(c). If the aggregate purchase price
of Securities tendered pursuant to the Offer is less than the Net Available Cash
allotted to the purchase of the Securities, the Company shall apply the
remaining Net Available Cash in accordance with clause (a)(iii)(D) of this
Section 4.06. The Company shall not be required to make an Offer for Securities
pursuant to this Section if the Net Available Cash available therefor (after
application of the proceeds as provided in clauses (A) and (B) of this Section
4.06 (a)(iii)) is less than (Pounds)3.0 million for any particular Asset
Disposition (which lesser amount shall be carried forward for purposes of
determining whether an Offer is required with respect to the Net Available Cash
from any subsequent Asset Disposition). If the Purchase Date (as defined below)
is on or after an interest record date and on or before the related Interest
Payment Date, any accrued and unpaid interest shall be paid in the case of a
Global Security, to
Exh. T3C-53
the Holder thereof or, in the case of a Definitive Security, to the Person in
whose name such Definitive Security is registered at the close of business on
such Record Date, and no additional interest shall be payable to Holders with
respect to Securities tendered pursuant to the Offer.
(c) (1) Promptly, and in any event within 10 days after the Company
becomes obligated to make an Offer, the Company shall be obligated to deliver to
the Trustee and to publish in a leading newspaper having a general circulation
in New York (which is expected to be the Wall Street Journal) (and, if and so
long as the Securities are listed on the Luxembourg Stock Exchange and the rules
of such Stock Exchange shall so require, a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort)) or, in
the case of Definitive Securities, mail or cause to be mailed a notice of an
Offer by first class mail, postage prepaid, to the registered address of each
Holder whose Securities are to be purchased. The notice shall state that the
Holder may elect to have his Securities purchased by the Company either in whole
or in part (subject to pro-rationing as hereinafter described in the event the
Offer is oversubscribed) in integral multiples of DM1,000 of principal amount,
at the applicable purchase price. The notice shall specify a purchase date not
less than 30 days nor more than 60 days after the date of such notice (the
"Purchase Date") and shall contain (or, in the case of a notice by publication,
shall contain instructions on how to obtain from the Company by first class
mail, postage prepaid) such information concerning the business of the Company
which the Company in good faith believes shall enable such Holders to make an
informed decision (which at a minimum shall include (i) a description of
material developments in the Company's business subsequent to the date of the
latest annual, quarterly or Form 8-K information provided pursuant to this
Indenture, (ii) if material, appropriate pro forma financial information and
(iii) all instructions and materials necessary to tender Securities pursuant to
the Offer, together with the address referred to in clause (3)). Notice of an
Offer shall also be given in accordance with any applicable requirements of any
other securities exchange on which the Securities are listed.
(2) Not later than the date upon which written notice of an Offer is
delivered to the Trustee as provided above, the Company shall deliver to the
Trustee an Officers' Certificate as to (i) the amount of the Offer (the "Offer
Amount"), (ii) the allocation of the Net Available Cash from the Asset
Dispositions pursuant to which such Offer is being made and (iii) the compliance
of such allocation with the provisions of Section 4.06(a). On such date, the
Company shall also irrevocably deposit with the Trustee or with a paying agent
(or, if the Company is acting as its own paying agent, segregate and hold in
trust) an amount equal to the Offer Amount to be invested in Temporary Cash
Investments and to be held for payment in accordance with the provisions of this
Section. Upon the expiration of the period for which the Offer remains open (the
"Offer Period"), the Company shall deliver to the Trustee for adjustment (in the
case of Global Securities) or cancelation (in the case of Definitive Securities)
the Securities or portions thereof that have been properly tendered to and are
to be accepted by the Company. On the Purchase Date, the Paying Agent shall
promptly cause the principal amount of any Global Security tendered pursuant to
the Offer to be adjusted on Schedule A thereof to be equal to any unpurchased
portion of such Global Security which unpurchased portion must be equal to
DM1,000 in principal amount at maturity or an integral multiple thereof, and
shall promptly authenticate and mail or deliver to each tendering Holder of a
Definitive Security, a new Definitive Security or Securities equal in principal
amount to any unpurchased portion of the Definitive Security surrendered which
unpurchased portion must be equal to DM1,000 in
Exh. T3C-54
principal amount at maturity or an integral multiple thereof. The Trustee shall
promptly (but in any case not later than five Business Days after the Purchase
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Securities tendered by such Holder and accepted by the Company for
purchase. Any Securities not so accepted shall be promptly mailed or delivered
by or on behalf of the Company to the Holder thereof. The Company shall publicly
announce the results of the Offer not later than the third Business Day
following the Purchase Date. In the event that the aggregate principal amount of
the Securities or portion thereof surrendered by Securityholders thereof
pursuant to an Offer is less than the Offer Amount, the Trustee shall deliver
the excess to the Company immediately after the expiration of the Offer Period
for application in accordance with this Section.
(3) Holders electing to have a Security purchased shall be required
to surrender the Security, with an appropriate form duly completed, to the
Company at the address specified in the notice at least three Business Days
prior to the Purchase Date. Holders shall be entitled to withdraw their election
if the Trustee or the Company receives not later than one Business Day prior to
the Purchase Date, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security which was delivered by the
Holder for purchase and a statement that such ▇▇▇▇▇▇ is withdrawing his election
to have such Security purchased. If at the expiration of the Offer Period the
aggregate principal amount of Securities surrendered by Holders exceeds the
Offer Amount, the Company shall select the Securities to be purchased in
compliance with the requirements of the principal securities exchange, if any,
on which such Securities are listed or, if such Securities are not so listed or
such exchange prescribes no method of selection, subject to applicable law, on a
pro rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Securities in denominations of DM1,000, or integral
multiples thereof, shall be purchased).
(4) At the time the Company delivers Securities to the Trustee which
are to be accepted for purchase, the Company shall also deliver an Officers'
Certificate stating that such Securities are to be accepted by the Company
pursuant to and in accordance with the terms of this Section. A Security shall
be deemed to have been accepted for purchase at the time the Trustee, directly
or through an agent, mails or delivers payment therefor to the surrendering
Holder.
(d) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations, including any securities laws of the United Kingdom and
Luxembourg and the requirements of the Luxembourg Stock Exchange or any other
securities exchange on which the Securities are listed, to the extent such laws
or regulations are applicable, in connection with the repurchase of Securities
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
Section 4.07 Limitation on Transactions with Affiliates. (a) The
Company shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or conduct any transaction (including, the purchase,
sale, lease or exchange of any property or the rendering of any service) with
any Affiliate of the Company (an "Affiliate Transaction") on
Exh. T3C-55
terms (i) that are less favorable to the Company or such Restricted Subsidiary,
as the case may be, than those that could be obtained at the time of such
transaction in arm's-length dealings with a Person who is not such an Affiliate
and (ii) that, in the event such Affiliate Transaction involves an aggregate
amount in excess of $1.0 million, are not in writing and have not been approved
by a majority of the members of the Board of Directors having no personal stake
in such Affiliate Transaction and who are not employed by or otherwise
associated with such Affiliate. In addition, if such Affiliate Transaction
involves an amount in excess of $5.0 million, a fairness opinion must be
provided by an independent internationally recognized appraisal or investment
banking firm.
(b) The provisions of the foregoing paragraph (a) shall not prohibit
(i) any Restricted Payment permitted to be paid pursuant to Section 4.04, (ii)
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,
(iii) loans or advances to employees in the ordinary course of business in
accordance with past practices of the Company or its Subsidiaries, but in any
event not to exceed (Pounds)1.0 million in the aggregate outstanding at any one
time, (iv) the payment of reasonable fees and the provision of reasonable
indemnities in the ordinary course of business to directors of and consultants
to the Company or its Subsidiaries who are not employees of the Company or its
Subsidiaries, (v) any transaction between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries, (vi) transactions pursuant to
written agreements as in effect on the Issue Date, (vii) any issuance of Capital
Stock by the Company, and (viii) employment agreements providing for reasonable
compensation and reasonable indemnities in the ordinary course of business.
Section 4.08 Change of Control. (a) Upon a Change of Control, each
Holder shall have the right to require that the Company repurchase all of such
▇▇▇▇▇▇'s Securities at a purchase price in cash equal to 101% of the principal
amount thereof, plus accrued and unpaid interest and Additional Amounts, if any,
to the date of repurchase (and, in the case of Definitive Securities, subject to
the right of Holders of record on a record date to receive interest on the
relevant interest payment date and Additional Amounts, if any, in respect
thereof), in accordance with the terms contemplated in Section 4.08(b);
provided, however, that notwithstanding the occurrence of a Change in Control,
the Company shall not be obligated to purchase the Securities pursuant to this
Section 4.08 in the event that it has exercised its right to redeem all the
Securities under paragraph 6 or 7 of the Securities. In the event that at the
time of such Change of Control the terms of the Bank Indebtedness restrict or
prohibit the repurchase of Securities pursuant to this Section, then prior to
the publishing or mailing of the notice to Holders provided for in Section
4.08(b) below but in any event within 30 days following any Change of Control,
the Company shall (i) repay in full all Bank Indebtedness or offer to repay in
full all Bank Indebtedness and repay the Bank Indebtedness of each lender who
has accepted such offer or (ii) obtain the requisite consent under the
agreements governing the Bank Indebtedness to permit the repurchase of the
Securities as provided for in Section 4.08(b).
(b) Within 30 days following any Change of Control (except as
provided in the proviso to the first sentence of Section 4.08(a)), the Company
shall deliver written notice to
Exh. T3C-56
the Trustee and publish a notice in a leading newspaper having a general
circulation in New York (which is expected to be the Wall Street Journal) (and,
if and so long as the Securities are listed on the Luxembourg Stock Exchange and
the rules of such Stock Exchange shall so require, a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort)) or, in
the case of Definitive Securities, mail a notice to each Holder, in each case
with a copy to the Trustee, with the following information:
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Securities at a
purchase price in cash equal to 101% of the principal amount thereof, plus
accrued and unpaid interest and Additional Amounts, if any, to the date of
repurchase (and in the case of Definitive Securities, subject to the right of
Holders of record on a record date to receive interest on the relevant interest
payment date and Additional Amounts, if any, in respect thereof);
(2) the circumstances and relevant facts and financial information
regarding such Change of Control;
(3) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is first published or, where
relevant, mailed, except as may otherwise be required by applicable law); and
(4) the instructions determined by the Company, consistent with this
Section, that a Holder must follow in order to have its Securities purchased.
Such notice shall also be given in accordance with any applicable
requirements of any other securities exchange on which the Securities are
listed.
(c) Holders electing to have their Securities purchased shall be
required to surrender the Securities, with an appropriate form duly completed,
to the Company at the address specified in the notice at least three Business
Days prior to the purchase date. Holders shall be entitled to withdraw their
election if the Trustee or the Company receives not later than one Business Day
prior to the purchase date a facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities which were delivered
for purchase by the Holder and a statement that such ▇▇▇▇▇▇ is withdrawing his
election to have such Security purchased.
(d) On the purchase date, all Securities that are purchased by the
Company under this Section shall be delivered to the Trustee for adjustment (in
the case of Global Securities) or cancelation (in the case of Definitive
Securities), and the Trustee shall promptly cause the principal amount of any
Global Security tendered under this Section to be adjusted on Schedule A thereof
to be equal to any unpurchased portion of such Global Security which unpurchased
portion must be equal to DM1,000 in principal amount at maturity or an integral
multiple thereof, and shall promptly authenticate and mail or deliver to each
tendering Holder of a Definitive Security, a new Definitive Security or
Securities equal in principal amount to any unpurchased portion of the
Definitive Security surrendered which unpurchased portion must be equal to
DM1,000 in principal amount at maturity or an integral multiple thereof. The
Trustee shall promptly (but in any case not later than five Business Days after
the purchase date) mail or deliver to each tendering Holder an amount equal to
the purchase price of the Securities tendered
Exh. T3C-57
by such ▇▇▇▇▇▇ and accepted by the Company for purchase pursuant to this
Section. Any Securities not so accepted shall be promptly mailed or delivered by
or on behalf of the Company to the Holder thereof. The Company shall publicly
announce the results of the Offer not later than the second Business Day
following the purchase date.
(e) The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations, including any securities laws of the United Kingdom and
Luxembourg and the requirements of the Luxembourg Stock Exchange or any other
securities exchange on which the Securities are listed, to the extent such laws
or regulations are applicable in connection with the repurchase of Securities
pursuant to this Section. To the extent that the provisions of any securities
laws or regulations conflict with provisions of this Section, the Company shall
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
Section 4.09 Compliance Certificate. The Company shall deliver to
the Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status and what action the Company is taking or proposes to take
with respect thereto. The Company also shall comply with Section 314(a)(4) of
the TIA.
Section 4.10 Further Instruments and Acts. Upon request of the
Trustee, the Company shall execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 4.11 Limitation on Liens. The Company shall not, and shall
not permit any Restricted Subsidiary to, directly or indirectly, create or
permit to exist any Lien, other than Permitted Liens, on any of its property or
assets (including Capital Stock), whether owned on the Issue Date or thereafter
acquired, securing any obligation, unless contemporaneously therewith (or prior
to) effective provision is made to secure the Securities on an equal and ratable
basis with such obligation for so long as such obligation is so secured;
provided, however, that the Company shall not permit any Lien securing any
Subordinated Obligation or Preferred Stock of the Company.
Section 4.12 Limitation on Guarantees of Company Indebtedness. The
Company shall not permit any Restricted Subsidiary to Guarantee any Indebtedness
of the Company or to secure any Indebtedness of the Company with a Lien on the
assets of such Restricted Subsidiary, unless contemporaneously therewith (or
prior thereto) effective provision is made to Guarantee or secure the
Securities, as the case may be, on an equal and ratable basis with such
Guarantee or Lien for so long as such Guarantee or Lien remains effective, and
in an amount equal to the amount of Company Indebtedness so Guaranteed or
secured; provided, however, that any Guarantee by a Restricted Subsidiary of a
Subordinated Obligation of the Company shall be subordinated and junior in right
of payment to the contemporaneous Guarantee of the Securities by such Restricted
Subsidiary; and provided, further, that the
Exh. T3C-58
Company shall not permit a Restricted Subsidiary to secure any Subordinated
Obligation of the Company or to Guarantee or secure any Preferred Stock of the
Company.
Section 4.13 Limitation on Lines of Business. The Company shall not,
and shall not permit any Restricted Subsidiary to, engage in any business, other
than a Related Business.
Section 4.14 Limitation on Sale/Leaseback Transactions. The Company
shall not, and shall not permit any Restricted Subsidiary to, enter into any
Sale/Leaseback Transaction with respect to any property unless (a) the Company
or such Subsidiary would be entitled to (i) Incur Indebtedness in an amount
equal to the Attributable Debt with respect to such Sale/Leaseback Transaction
pursuant to Section 4.03 and (ii) create a Lien on such property securing such
Attributable Debt without equally and ratably securing the Securities pursuant
to Section 4.11, (b) the net cash proceeds received by the Company or any
Restricted Subsidiary in connection with such Sale/Leaseback Transaction are at
least equal to the fair value (as determined in good faith by the Board of
Directors) of such property and (c) the transfer of such property is permitted
by, and the Company applies the proceeds of such transaction in compliance with,
Section 4.06.
Section 4.15 Limitation on the Sale or Issuance of Capital Stock of
Restricted Subsidiaries. The Company shall not sell any Capital Stock of a
Restricted Subsidiary, and shall not permit any Restricted Subsidiary, directly
or indirectly, to issue, sell or otherwise dispose of any of its Capital Stock
except: (i) to the Company or a Wholly Owned Subsidiary; or (ii) if, immediately
after giving effect to such issuance or sale, neither the Company nor any of its
Subsidiaries own any Capital Stock of such Restricted Subsidiary. The proceeds
of any sale of such Capital Stock permitted hereby shall be treated as Net
Available Cash from an Asset Disposition and shall be applied in accordance with
Section 4.06.
Section 4.16 Additional Amounts. At least 10 days prior to the first
date on which payment of principal, redemption price, interest, liquidated
damages or premium is to be made on the Securities by the Company, and at least
10 days prior to any subsequent such date if there has been any change with
respect to the matters set forth in the Officers' Certificate described in this
Section 4.16, the Company shall furnish the Trustee and the Paying Agent, if
other than the Trustee, with an Officers' Certificate instructing the Trustee
and the Paying Agent whether such payment of principal, redemption price,
interest, liquidated damages or premium on the Securities (whether or not in the
form of Definitive Securities) shall be made to the Holders without withholding
or deduction for, or on account of, any present or future taxes, duties,
assessments or other governmental charges of whatever nature (collectively
"Taxes") imposed or levied by or on behalf of the United Kingdom or any
political subdivision thereof or any authority having the authority to tax
therein, unless the withholding or deduction of such Taxes is then required by
law. If any such withholding or deduction shall be required, then such Officer's
Certificate shall specify the amount, if any, required to be withheld on such
payments to such Holders and certify that the Company has remitted or shall
remit any required withholding payments to the appropriate governmental
authority or authorities, as the case may be, and the Company shall pay to the
Trustee or the Paying Agent the Additional Amounts pursuant to Paragraph 2 of
the Initial Securities or the Exchange Securities, as applicable. The Company
shall indemnify the Trustee and the Paying Agent for, and hold each of them
harmless
Exh. T3C-59
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on its part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished to
them pursuant to this Section 4.16.
Section 4.17 Payment of Non-Income Taxes and Similar Charges. The
Company shall pay any present or future stamp, court or documentary taxes, or
any other excise or property taxes, charges or similar levies which arise in any
jurisdiction from the execution, delivery or registration of this Indenture or
the Securities or any other document or instrument referred to herein or
therein, or the receipt of any payments with respect to the Securities,
excluding any such taxes, charges or similar levies imposed by any jurisdiction
outside of the United Kingdom, the United States of America or any jurisdiction
in which a Paying Agent is located, other than those resulting from, or required
to be paid in connection with, the enforcement of the Securities or any other
such document or instrument following the occurrence of any Event of Default
with respect to the Securities.
ARTICLE 5
SUCCESSOR COMPANY
Section 5.01 When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its assets to, any Person, unless:
(i) the resulting, surviving or transferee Person (the "Successor
Company") shall be a corporation organized and existing under the laws of
England and Wales or the United States of America, any state thereof or
the District of Columbia and the Successor Company (if not the Company)
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture;
(ii) immediately after giving effect to such transaction (and
treating any Indebtedness which becomes an obligation of the Successor
Company or any Restricted Subsidiary as a result of such transaction as
having been Incurred by the Successor Company or such Restricted
Subsidiary at the time of such transaction), no Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction, the
Successor Company would be able to incur an additional $1.00 of
Indebtedness pursuant to Section 4.03(a);
(iv) immediately after giving effect to such transaction, the
Successor Company shall have Consolidated Net Worth in an amount which is
not less than the Consolidated Net Worth of the Company immediately prior
to such transaction;
(v) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture; and
Exh. T3C-60
(vi) the Company shall have delivered to the Trustee an opinion of
tax counsel reasonably acceptable to the Trustee stating that (A) any
payment of principal, redemption price or purchase price of, premium (if
any), Additional Amounts (if any) and interest on the Securities by the
Successor Company to a Holder (or beneficial owner, if not a Holder) after
the consolidation, merger, conveyance, transfer or lease of assets shall
be exempt from the Taxes described and defined under Section 4.16 and (B)
no other taxes on income (including taxable capital gains) shall be
payable under the laws of the United Kingdom or any other jurisdiction
where the Successor Company is or becomes located by a Holder (or
beneficial owner, if not a Holder) who is not and is not deemed to be a
resident of the United Kingdom or other jurisdiction where the Successor
Company is or becomes located and does not carry on a trade in the United
Kingdom through a branch, agency or permanent establishment to which the
Securities of that Holder are attributable (or, as the case may be, does
not carry on any business activities through a branch, agency or permanent
establishment in such other jurisdiction where the Successor Company is or
becomes located) in respect of the acquisition, ownership or disposition
of Securities, including the receipt of principal, premium (if any),
Additional Amounts (if any) or interest paid pursuant to such Securities.
The Successor Company shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, but the
predecessor Company in the case of a conveyance, transfer or lease of all or
substantially all its assets shall not be released from the obligation to pay
the principal of and interest on the Securities.
Notwithstanding the foregoing clauses (ii), (iii) and (iv), (a) any
Restricted Subsidiary may consolidate with, merge into or transfer all or part
of its properties and assets to the Company and (b) the Company may merge with a
Wholly-Owned Subsidiary incorporated solely for the purpose of reincorporating
the Company in another jurisdiction to realize tax or other benefits.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on, or
Additional Amounts, if any, with respect to, any Security when the same becomes
due and payable, and such default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity, upon
redemption, upon required repurchase, upon declaration or otherwise;
(3) the Company fails to comply with Section 5.01;
(4) the Company fails to comply with Section 4.02, 4.03, 4.04, 4.05,
4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 or 4.17 (in each case,
other than a failure to purchase
Exh. T3C-61
Securities when required), and such failure continues for 30 days after the
notice specified below;
(5) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in (1), (2), (3) or
(4) above) and such failure continues for 60 days after the notice specified
below;
(6) Indebtedness of the Company or any Subsidiary is not paid within
any applicable grace period after final maturity or the acceleration by the
holders thereof because of a default and the total amount of such Indebtedness
unpaid or accelerated exceeds (Pounds)7.5 million or its foreign currency
equivalent at the time;
(7) the Company or any of its Subsidiaries suspends making payment
of, or is unable to, or admits inability to pay its debts (or any class of its
debts) as they fall due, or is deemed unable to pay its debts pursuant to or for
the purposes of any applicable law, or is adjudicated or found bankrupt or
insolvent or a moratorium is declared in respect of its Indebtedness;
(8) the Company or any Subsidiary pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(D) makes a general assignment for the benefit of, or enters
into a composition or other arrangement with, its
creditors;
(E) passes a resolution or presents a petition for its
winding-up, liquidation or administration; or takes any
comparable action under any other laws relating to
insolvency, bankruptcy or debt moratorium;
(9) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Subsidiary in
an involuntary case;
(B) appoints a Custodian of the Company or any Subsidiary or
for any substantial part of its property; or
(C) orders the winding up, liquidation or administration of
the Company or any Subsidiary;
Exh. T3C-62
or any similar relief is granted under any other laws and the order or decree
remains unstayed and in effect for 60 days; or
(10) any judgment or decree for the payment of money in excess of
(Pounds)7.5 million or its foreign currency equivalent at the time is entered
against the Company or any Subsidiary and is not discharged, waived or stayed
and either (A) an enforcement proceeding has been commenced by any creditor upon
such judgment or decree or (B) there is a period of 60 days following the entry
of such judgment or decree during which such judgment or decree is not
discharged, waived or the execution thereof stayed.
The foregoing shall constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
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.
The term "Bankruptcy Law" means the English Insolvency Act 1986 as
supplemented or amended together with all rules, regulations and instruments
made thereunder and applicable English law relating to bankruptcy, insolvency,
winding up, administration, receivership and other similar matters, Title 11,
United States Code, or any similar Federal, state or other law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator,
administrator, administrative receiver, custodian or similar official under any
Bankruptcy Law.
A Default under clause (4) or (5) is not an Event of Default until
the Trustee or the Holders of at least 25% in principal amount of the
outstanding Securities notify the Company of the Default and the Company does
not cure such Default within the time specified in clauses (4) and (5) after
receipt of such notice. Such notice must specify the Default, demand that it be
remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clause (6) and any event which with the giving of
notice or the lapse of time would become an Event of Default under clause (4),
(5) or (10), its status and what action the Company is taking or proposes to
take with respect thereto.
Section 6.02 Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(7), (8) or (9) with respect to the
Company) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the outstanding Securities by
notice to the Company, may declare the principal of and accrued but unpaid
interest and Additional Amounts, if any, on all the Securities to be due and
payable. Upon such a declaration, such principal and interest shall be due and
payable immediately. If an Event of Default specified in Section 6.01(7), (8) or
(9) with respect to the Company occurs, the principal of and interest and
Additional Amounts, if any, on all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Securityholders. The Holders of a majority in principal
amount of the Securities by notice to the Trustee may rescind an acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has
Exh. T3C-63
become due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
Section 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04 Waiver of Past Defaults. The Holders of a majority in
principal amount of the then outstanding Securities by notice to the Trustee may
waive (including pursuant to consents obtained in connection with a tender offer
or exchange offer for the Securities) an existing Default and its consequences
except (i) a Default in the payment of the principal of or interest on a
Security or (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Securityholder affected. When a
Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
Section 6.05 Control by Majority. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
Section 6.06 Limitation on Suits. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of security or indemnity; and
Exh. T3C-64
(5) the Holders of a majority in principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during such
60-day period.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over another
Securityholder.
Section 6.07 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest and Additional Amounts, if any, on the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities, or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 6.08 Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount of principal and accrued interest and Additional
Amounts, if any, then due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
Section 6.09 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, any Subsidiary,
their creditors or their property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
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 its counsel, and any other amounts due
the Trustee under Section 7.07.
Section 6.10 Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for principal, interest and Additional Amounts, if any,
ratably, and any liquidated damages without preference or priority
of any kind, according to the amounts due and payable on the
Securities for principal, interest, Additional Amounts, if any, and
any liquidated damages, respectively; and
THIRD: to the Company.
The Trustee may, upon prior notice to the Company, fix a record date
and payment date for any payment to Securityholders pursuant to this Section.
Exh. T3C-65
Section 6.11 Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
Section 6.12 Waiver of Stay or Extension Laws. The Company (to the
extent it may lawfully do so) shall 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 shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such ▇▇▇▇▇▇'s own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
Exh. T3C-66
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur 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 to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on or to invest any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) 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 and to the provisions of the TIA.
Section 7.02 Rights of Trustee. Subject to Section 7.01: (a) The
Trustee may rely on any document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on an
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel (which may be an employee
of or counsel to the Company) and the advice or opinion of counsel with respect
to legal matters relating to this Indenture and the Securities shall be full and
complete authorization and protection from liability in respect to any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(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, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Securities
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further
Exh. T3C-67
inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney.
Section 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
Section 7.04 Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
Section 7.05 Notice of Defaults. If a Default occurs and is
continuing and if it is known to a Trust Officer of the Trustee, the Trustee
shall give to each Securityholder notice of the Default within the earlier of 90
days after it occurs or 30 days after it is known to a Trust Officer or written
notice of it is received by the Trustee. Except in the case of a Default in
payment of principal or premium (if any), interest or Additional Amounts, if
any, on any Security (including payments pursuant to Sections 4.06 and 4.08
hereof), the Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the notice is in
the interests of Securityholders.
Section 7.06 Reports by Trustee to Holders. As promptly as
practicable after each May 15 beginning with the May 15 following the date of
this Indenture, and in any event prior to July 15 in each year, the Trustee
shall mail to each Securityholder a brief report dated as of May 15 that
complies with Section 313(a) of the TIA. The Trustee shall also comply with
Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
Section 7.07 Compensation and Indemnity. The Company shall pay to
the Trustee such compensation for its services hereunder as shall be agreed upon
in writing with the Company. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred or made by it, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability or expense (including reasonable attorneys'
fees and expenses) incurred by it without negligence or bad faith on its part in
connection with the administration of this trust, the
Exh. T3C-68
performance of its duties hereunder and the exercise of its rights hereunder.
The Trustee shall notify the Company of any claim for which it may seek
indemnity promptly upon obtaining actual knowledge thereof; provided that any
failure so to notify the Company shall not relieve the Company of its indemnity
obligations hereunder. The Company need not reimburse any expense or indemnify
against any loss, liability or expense incurred by the Trustee through its own
wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and any Additional Amounts on particular Securities.
The Company's payment obligations pursuant to this Section shall survive the
satisfaction or discharge of this Indenture, any rejection or termination of
this Indenture or the resignation or removal of the Trustee. When the Trustee
incurs expenses after the occurrence of a Default specified in Section 6.01(7),
(8) or (9) with respect to the Company, the expenses are intended to constitute
expenses of administration under the Bankruptcy Law.
Section 7.08 Replacement of Trustee. A resignation or removal of the
Trustee and appointment of successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign at any time by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and the Company and may appoint a successor Trustee. The
Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting. If the
Trustee resigns, or is removed by the Company or by the Holders of a majority in
principal amount of the Securities and such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the office of Trustee for
any reason (the Trustee in such event being referred to herein as the retiring
Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
Exh. T3C-69
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
Section 7.09 Successor Trustee by ▇▇▇▇▇▇. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA (S) 310(a). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b); provided, however, that there shall be excluded from the operation
of TIA (S) 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA (S)
310(b)(1) are met.
Section 7.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA (S) 311(a), excluding any creditor relationship
listed in TIA (S) 311(b). A Trustee who has resigned or been removed shall be
subject to TIA (S) 311(a) to the extent indicated therein.
Section 7.12 Trustee Acting in Other Capacities. Except as otherwise
specifically provided herein, (a) all references in this Indenture to the
Trustee shall be deemed to refer to the Trustee in its capacities as Trustee,
Registrar and Paying Agent, and (b) every provision of this Indenture relating
to the conduct or affecting the liability of or offering protection, immunity or
indemnity to the Trustee shall be deemed to apply with the same force and effect
to the Trustee acting in its capacities as Registrar and Paying Agent.
Exh. T3C-70
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
Section 8.01 Discharge of Liability on Securities; Defeasance. (a)
When (i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancelation or (ii) all
outstanding Securities have become due and payable, whether at maturity or as a
result of the giving of a notice of redemption pursuant to Article 3 hereof and
the Company irrevocably deposits with the Trustee funds or U.S. Government
Obligations on which payment of principal and interest when due shall be
sufficient to pay at maturity or upon redemption all outstanding Securities,
including interest thereon and Additional Amounts, if any, to maturity or such
redemption date (other than Securities replaced pursuant to Section 2.07), and
if in either case the Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to Section 8.01(c), cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 8.01(c) and 8.02, the Company at any time
may terminate (i) all of its obligations under the Securities and this Indenture
("legal defeasance option") or (ii) its obligations under Sections 4.02(b),
4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.11, 4.12, 4.13, 4.14, 4.15, 5.01(iii) and
5.01(iv) and the operation of Section 6.01(4), 6.01(6), 6.01(7) (with respect to
Subsidiaries of the Company only), 6.01(8) (with respect to Subsidiaries of the
Company only), 6.01(9) (with respect to Subsidiaries of the Company only) and
6.01(10) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default with respect
thereto and the Company will not be required to repurchase the Securities upon a
Change of Control. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of Default
specified in Section 6.01(4), 6.01(6), 6.01(7) (with respect to Subsidiaries of
the Company only), 6.01(8) (with respect to Subsidiaries of the Company only),
6.01(9) (with respect to Subsidiaries of the Company only) and 6.01(10), or
because of the failure of the Company to comply with clause (iii) and (iv) of
Section 5.01.
Upon satisfaction of the conditions set forth herein and upon
request of the Company, the Trustee shall acknowledge in writing the discharge
of those obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.09, 2.11, 2.12,
4.02(a), 4.16, 4.17. 6.07, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive until
the Securities have been paid in full. Thereafter, the Company's obligations in
Sections 7.07, 8.04, 8.05 and 8.06 shall survive.
Section 8.02 Conditions to Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
Exh. T3C-71
(1) the Company irrevocably deposits in trust with the Trustee cash
in Deutsche Marks or Federal Republic of Germany Obligations for the payment of
principal, premium (if any) and interest on the Securities to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from an
internationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited Federal Republic of Germany Obligations plus any
deposited money without investment shall provide cash at such times and in such
amounts as shall be sufficient to pay principal and interest when due on all the
Securities to maturity or redemption, as the case may be;
(3) 123 days pass after the deposit is made and during the 123-day
period no Default specified in Section 6.01(7), (8) or (9) with respect to the
Company occurs which is continuing at the end of the period;
(4) the deposit does not constitute a default under any other
agreement binding on the Company and is not prohibited by Article 10;
(5) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company Act of
1940;
(6) in the case of the legal defeasance option, the Company shall
have delivered to the Trustee (A) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee stating that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of this Indenture there has been a change in the applicable
U.S. Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel in the United States shall confirm that, the
Securityholders shall not recognize any income, gain or loss for U.S. Federal
income tax purposes as a result of such deposit and defeasance and shall be
subject to U.S. Federal 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 defeasance had
not occurred and (B) an Opinion of Counsel in the United Kingdom reasonably
acceptable to the Trustee to the effect that (i) Holders shall not recognize any
income, gain or loss for United Kingdom income tax purposes as a result of such
deposit and defeasance and shall be subject to United Kingdom 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 defeasance had not occurred and (ii) payments from the
defeasance trust shall be free and exempt from any and all withholding and other
income taxes of whatever nature imposed or levied by or on behalf of the United
Kingdom or any political subdivision thereof or therein having the power to tax;
(7) in the case of the covenant defeasance option, the Company shall
have delivered to the Trustee (A) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee to the effect that the Securityholders
shall not recognize any income, gain or loss for U.S. Federal income tax
purposes as a result of such covenant defeasance and shall be subject to U.S.
Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred and (B)
an Opinion of Counsel in the United Kingdom reasonably acceptable to the Trustee
to the effect that (i) Holders shall not recognize any income, gain or loss for
United Kingdom income tax purposes as a result
Exh. T3C-72
of such covenant defeasance and shall be subject to United Kingdom income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred and (ii) payments from the
defeasance trust shall be free and exempt from any and all withholding and other
income taxes of whatever nature imposed or levied by or on behalf of the United
Kingdom or any political subdivision thereof or therein having the power to tax;
(8) the Company shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee to the effect that, as of the date
of such opinion, the trust funds shall not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally under any applicable English or U.S. Federal or
state law, and that the Trustee has a perfected security interest in such trust
funds for the ratable benefit of the Holders; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article 8
have been complied with. Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities at a
future date in accordance with Article 3.
Section 8.03 Application of Trust Money. The Trustee shall hold in
trust cash in Deutsche Marks or Federal Republic of Germany Obligations
deposited with it pursuant to this Article 8. It shall apply the deposited money
and the cash in Deutsche Marks or Federal Republic of Germany Obligations
through the Paying Agent and in accordance with this Indenture to the payment of
principal of and interest on the Securities.
Section 8.04 Repayment to Company. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and
the Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Securityholders entitled to the money must look to the
Company for payment as general creditors; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company give notice to the Holders or cause to be published
notice once, in The New York Times and The Wall Street Journal (national
edition) (and, if and so long as the Securities are listed on the Luxembourg
Stock Exchange and the rules of such Stock Exchange shall so require, in a
newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)), 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
notification, any unclaimed balance of such money then remaining shall be repaid
to the Company. Such notice shall also be given in accordance with any
applicable requirements of any other securities exchange on which the Securities
are listed.
Section 8.05 Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed
Exh. T3C-73
against deposited Federal Republic of Germany Obligations or the principal and
interest received on such Federal Republic of Germany Obligations.
Section 8.06 Reinstatement. If the Trustee or Paying Agent is unable
to apply any cash in Deutsche Marks or Federal Republic of Germany Obligations
in accordance with this Article 8 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to this Article 8 until such time as the
Trustee or Paying Agent is permitted to apply all such cash in Deutsche Marks or
Federal Republic of Germany Obligations in accordance with this Article 8;
provided, however, that, if the Company has made any payment of interest on or
principal of any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the cash in Deutsche Marks or Federal Republic of
Germany Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
Section 9.01 Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided, however, that the uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the
Code or in a manner such that the uncertificated Securities are described in
Section 163(f)(2)(B) of the Code;
(4) to secure the Securities;
(5) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company;
(6) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(7) to make any change that does not adversely affect the rights of
any Securityholder; or
(8) to provide for the issuance of the Exchange Securities (which
shall have terms substantially identical in all material respects to the Initial
Securities (except that the transfer restrictions contained in the Initial
Securities shall be modified or eliminated, as appropriate), and which shall be
treated, together with any outstanding Initial Securities, as a single issue of
securities.
Exh. T3C-74
After an amendment under this Section becomes effective, the Company
shall give to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
Section 9.02 With Consent of Holders. The Company and the Trustee
may amend this Indenture or the Securities without notice to any Securityholder
but with the written consent of the Holders of at least a majority in principal
amount of the Securities (the "Majority Securityholders")(including consents
obtained in connection with a tender offer or exchange offer for the
Securities). However, without the consent of each Holder of an outstanding
Security affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or extend the time for payment of interest
(including any liquidated damages) on any Security;
(3) reduce the principal of or extend the Stated Maturity of any
Security;
(4) reduce the premium payable upon the redemption of any Security
or change the time at which any Security may be redeemed in accordance with
Article 3;
(5) make any Security payable in money other than that stated in the
Security;
(6) impair the right of any Holder to receive payment of principal
of and interest and Additional Amounts, if any, on such ▇▇▇▇▇▇'s Securities on
or after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such ▇▇▇▇▇▇'s Securities;
(7) make any change in Section 6.04 or 6.07 or the second sentence
of this Section; or
(8) make any change in paragraph 2 of the Securities that adversely
affects the rights of any Holder of the Securities under such paragraph 2 or
amend the terms of the Securities in a way that would result in a loss of an
exemption from any of the Taxes or an exemption from any obligation to withhold
or deduct Taxes unless the Company agrees to pay Additional Amounts, if any, in
respect thereof. It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof. After an
amendment under this Section becomes effective, the Company shall give to
Securityholders a notice briefly describing such amendment. The failure to give
such notice to all Securityholders, or any defect therein, shall not impair or
affect the validity of an amendment under this Section.
Section 9.03 Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent
Exh. T3C-75
Holder of that Security or portion of the Security that evidences the same debt
as the consenting ▇▇▇▇▇▇'s Security, even if notation of the consent or waiver
is not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent or waiver as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment or waiver becomes effective. After an amendment or waiver becomes
effective, it shall bind every Securityholder. An amendment or waiver becomes
effective once the requisite number of consents is received by the Company or
the Trustee.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Securityholders entitled to give their
consent or take any other action described above or required or permitted to be
taken pursuant to this Indenture. If a record date is fixed, then
notwithstanding the immediately preceding paragraph, those Persons who were
Securityholders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid or
effective for more than 120 days after such record date.
Section 9.05 Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
Section 9.06 Trustee To Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.01) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture, that such amendment is
the legal, valid and binding obligation of the Company enforceable against it in
accordance with its terms, subject to customary exceptions, and complies with
the provisions hereof (including Section 9.03).
Section 9.07 Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
Exh. T3C-76
ARTICLE 10
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 10.02 Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Texon International plc
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇.
LE4 5BX
Attention of: Chief Financial Officer
if to the Trustee:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention of: Corporate Trust Department
with a copy to:
The Bank of New York
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
|Attention of: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication to the Company or the Trustee shall be deemed to have
been given or made upon actual receipt thereof by the addressee (except that a
notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication given by publication to a Securityholder
shall be deemed given on the first date on which publication is made, if
published, or five (5) calendar days after mailing if sent by first class mail,
postage prepaid as applicable.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or
Exh. T3C-77
communication is published or mailed in the manner provided above, it is duly
given, whether or not the addressee reads or receives it.
Notices regarding the Securities shall be (i) if Global Securities
are outstanding, published in a leading newspaper having a general circulation
in New York (which is expected to be the Wall Street Journal) (and, if and so
long as the Securities are listed on the Luxembourg Stock Exchange and the rules
of such Stock Exchange shall so require, a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort)) or
(ii) in the case of Definitive Securities, mailed to Holders by first-class mail
at their respective addresses as they appear on the registration books of the
Registrar (and if and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, published in a
newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)). If and so long as the Securities are listed on any other
securities exchange, notice shall also be given in accordance with any
applicable requirements of such securities exchange.
Section 10.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S) 312(c).
Section 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 10.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
Exh. T3C-78
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
Section 10.06 When Securities Disregarded. In determining whether
the Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Trust Officer of the Trustee knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities outstanding at the
time shall be considered in any such determination.
Section 10.07 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of
Securityholders. If and so long as the Securities are listed on any securities
exchange, such rules shall, to the extent not inconsistent with the provisions
of this Indenture, comply with any applicable requirements of such securities
exchange. The Registrar and the Paying Agent may make reasonable rules for their
functions.
Section 10.08 Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York, the United Kingdom, Luxembourg or a place of payment. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue with respect to
such payment for the intervening period. If a regular record date is a Legal
Holiday, the record date shall not be affected.
Section 10.09 GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Section 10.10 Jurisdiction. The Company agrees that any suit, action
or proceeding against the Company or any Note Guarantor brought by any Holder or
the Trustee arising out of or based upon this Indenture or the Securities may be
instituted in any state or Federal court in the Borough of Manhattan, The City
of New York, New York, and any appellate court from any thereof, and it
irrevocably submits to the non-exclusive jurisdiction of such courts in any
suit, action or proceeding. The Company irrevocably waives, to the fullest
extent permitted by law, any objection to any suit, action, or proceeding that
may be brought in connection with this Indenture or the Securities, including
such actions, suits or proceedings relating to securities laws of the United
States of America or any state thereof, in such courts whether on the grounds of
venue, residence or domicile or on the ground that any such suit, action or
proceeding has been brought in an inconvenient forum. The Company agrees that
final judgment in any such suit, action or proceeding brought in such court
shall be conclusive and binding upon the Company and may be enforced in any
court to the jurisdiction of which the Company is subject by a suit upon such
judgment; provided that service of process is effected
Exh. T3C-79
upon the Company in the manner provided by this Indenture. The Company has
appointed CT Corporation Systems, with offices on the date hereof at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as its authorized agent (the "Authorized
Agent"), upon whom process may be served in any suit, action or proceeding
arising out of or based upon this Indenture, the Securities or the transactions
contemplated herein which may be instituted in any state or Federal court in the
Borough of Manhattan, The City of New York, New York, by any Holder or the
Trustee, and expressly accepts the non-exclusive jurisdiction of any such court
in respect of any such suit, action or proceeding. The Company hereby represents
and warrants that the Authorized Agent has accepted such appointment and has
agreed to act as said agent for service of process, and the Company agrees to
take any and all action, including the filing of any and all documents that may
be necessary to continue such respective appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent shall be deemed, in
every respect, effective service of process upon the Company. Notwithstanding
the foregoing, any action involving the Company arising out of or based upon
this Indenture or the Securities may be instituted by any Holder or the Trustee
in any court of competent jurisdiction in the United Kingdom.
Section 10.11 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 10.12 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 10.13 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
Section 10.14 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
Exh. T3C-80
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
TEXON INTERNATIONAL PLC
By: ____________________________________
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE,
By: ____________________________________
Name:
Title:
Exh. T3C-81
EXHIBIT A
[FORM OF FACE OF INITIAL SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE
DATE (THE "RESALE RESTRICTION TERMINATION DATE") THAT IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (1)(A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED AND REMAINS EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) IN AN OFFSHORE TRANSACTION WITHIN THE MEANING
OF, AND IN COMPLIANCE WITH, REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF DM500,000, AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND (2) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF
THE STATES OF THE UNITED STATES, SUBJECT TO APPLICABLE CERTIFICATION
REQUIREMENTS AND OTHER REQUIREMENTS PROVIDED FOR IN THE INDENTURE PURSUANT TO
WHICH THIS SECURITY IS ISSUED AND TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (1)(E) OR (1)(F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT ALL
CERTIFICATIONS OF TRANSFER REQUIRED BY
Exh. T3C-A-1
THE INDENTURE ARE COMPLETED AND A-2 DELIVERED BY THE TRANSFEROR TO THE COMPANY,
THE TRUSTEE AND/OR THE BOOK-ENTRY DEPOSITARY AS REQUIRED BY THE INDENTURE. THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
[INCLUDE IF SECURITY IS A REGULATION S SECURITY--UNTIL 40 DAYS AFTER THE
COMMENCEMENT OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED
STATES BY A DEALER (AS DEFINED IN THE U.S. SECURITIES ACT) MAY VIOLATE THE
REGISTRATION REQUIREMENTS OF THE U.S. SECURITIES ACT IF SUCH OFFER OR SALE IS
MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A UNDER THE U.S. SECURITIES ACT.]
TEXON INTERNATIONAL PLC
10% SENIOR NOTE DUE 2008
[IF REGULATION S SECURITY - CINS Number ▇▇▇▇▇▇▇▇▇]
ISIN Number USG87667AA27]
[IF RULE 144A SECURITY - CUSIP Number ▇▇▇▇▇▇▇▇▇]
[IF IAI SECURITY - CUSIP Number ▇▇▇▇▇▇▇▇▇]
No. _________
[INCLUDE IF GLOBAL SECURITY-Texon International plc, a public limited
company incorporated in England and Wales, promises to pay to the bearer upon
surrender hereof the principal sum indicated on Schedule A hereof, on February
1, 2008. This Security is an [IAI] [Rule 144A] [Regulation S] Global Security
referenced in the Indenture referred to on the other side of this Security.
[INCLUDE IF DEFINITIVE SECURITY-Texon International plc, a public limited
company incorporated in England and Wales, promises to pay to [ ], or registered
assigns, the principal sum of DM[ ] on February 1, 2008.]
Interest Payment Dates: February 1 and August 1, commencing August 1,
1998.
[INCLUDE IF DEFINITIVE SECURITY-Record Dates: January 15 and July 15.]
Additional provisions of this Security are set forth on the [other
side] [the following pages] of this Security.
[Seal] TEXON INTERNATIONAL PLC,
By: ____________________________________
Name:
Title:
Exh. T3C-A-2
Dated: January 30, 1998
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture
by _____________________________________
Authorized Signatory
Exh. T3C-A-3
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
10% Senior Note due 2008
1. Interest.
Texon International plc, a public limited company incorporated in England
and Wales (such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above. As provided in the Exchange and Registration Rights Agreement, the
Company will use its reasonable best efforts to have the Exchange Offer
Registration Statement and, if applicable, a Shelf Registration Statement (each
a "Registration Statement") declared effective by the SEC as promptly as
practicable after the filing thereof. If (i) the applicable Registration
Statement is not filed with the Commission on or prior to 60 days after the
Issue Date; (ii) the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, is not declared effective within 120
days after the Issue Date (or, in the case of a Shelf Registration Statement
required to be filed in response to a change in law or the applicable
interpretations of the SEC's staff, if later, 45 days after publication of the
change in law or interpretation); (iii) the Registered Exchange Offer is not
consummated on or prior to 150 days after the Issue Date, unless a Shelf
Registration Statement is filed in lieu of an Exchange Offer Registration
Statement in response to a change in law or the applicable interpretations of
the SEC's staff; or (iv) the Shelf Registration Statement is filed and declared
effective within 120 days after the Issue Date (or, in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretations of the SEC's staff, if later, 45 days after
publication of the change in law or interpretation) but shall thereafter cease
to be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 30 days by an additional
or amended Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (iv), a "Registration Default"), the Company
will, as provided in the Exchange and Registration Rights Agreement, pay
liquidated damages to each holder of Transfer Restricted Securities, during the
period of one or more such Registration Defaults, in an amount equal to DM0.192
per week per DM1,000 principal amount of the Securities constituting Transfer
Restricted Securities held by such holder until (i) the applicable Registration
Statement is A-5 filed, (ii) the Exchange Offer Registration Statement is
declared effective and the Registered Exchange Offer is consummated, (iii) the
Shelf Registration Statement is declared effective or (iv) the Shelf
Registration Statement again becomes effective or an additional Shelf
Registration Statement is filed and becomes effective, as the case may be. All
accrued liquidated damages shall be paid to holders in the same manner as
interest payments on the Securities on semi-annual payment dates that correspond
to interest payment dates for the Securities and references herein and in the
Indenture to interest shall, unless the context requires otherwise, also be
references to any such liquidated damages. Following the cure of all
Registration Defaults, the accrual of liquidated damages will cease.
The Company will pay interest semiannually on February 1 and August 1 of
each year, commencing August 1, 1998. Interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from January 30, 1998. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company shall pay
Exh. T3C-A-4
interest on overdue principal at the rate borne by the Securities plus 1% per
annum, and it shall pay interest on overdue installments of interest at the same
rate to the extent lawful.
2. Additional Amounts.
All payments made by the Company on the Securities (whether or not in the
form of Definitive Securities) 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 (collectively, "Taxes") imposed or
levied by or on behalf of the United Kingdom or any political subdivision
thereof or any authority having power to tax therein (each a "U.K. Tax
Authority"), unless the withholding or deduction of such Taxes is then required
by law. If any deduction or withholding for, or on account of, any Taxes of any
U.K. Tax Authority shall at any time be required on any payments made by the
Company with respect to the Securities, including payments of principal,
redemption price, interest, liquidated damages or premium, the Company shall pay
such additional amounts (the "Additional Amounts") as may be necessary in order
that the net amounts received in respect of such payments by the Holders of the
Securities or the Trustee, as the case may be, after such withholding or
deduction, equal the respective amounts which would have been received in
respect of such payments in the absence of such withholding or deduction;
provided, however, that no such Additional Amounts shall be payable with respect
to:
(i) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any payments on a
Security held by or on behalf of a Holder or a beneficial owner who is
liable for such Taxes in respect of such Security by reason of the Holder
or beneficial owner having some connection with the United Kingdom
(including being a citizen or resident or national of, or carrying on a
business or maintaining a permanent establishment in, or being physically
present in, the United Kingdom) other than by the mere holding of such
Security or enforcement of rights thereunder or the receipt of payments in
respect thereof;
(ii) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any Taxes that are
imposed or withheld as a result of a change in law after the Issue Date
where such withholding or imposition is by reason of the failure of the
Holder or beneficial owner of the Security to comply with any request by
the Company to provide information concerning the nationality, residence
or identity of such Holder or beneficial owner or to make any declaration
or similar claim or satisfy any information or reporting requirement,
which is required or imposed by a statute, treaty, regulation or
administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such Taxes;
(iii) except in the case of the winding up of the Company, any
Security presented for payment (where presentation is required) in the
United Kingdom (unless by reason of the Company's actions presentment
could not have been made elsewhere); or
(iv) any Security presented for payment (where Securities are in the
form of Definitive Securities and presentation is required) more than 30
days after the relevant payment is first made available for payment to the
Holder (except to the extent that the
Exh. T3C-A-5
▇▇▇▇▇▇ would have been entitled to Additional Amounts had the Security
been presented on the last day of such 30 day period).
Such Additional Amounts shall also not be payable where, had the
beneficial owner of the Security been the Holder of the Security, he would not
have been entitled to payment of Additional Amounts by reason of clauses (i) to
(iv) inclusive above.
Upon request, the Company shall provide the Trustee with documentation
satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies
of such documentation shall be made available to the Holders upon request.
3. Method of Payment.
[IF GLOBAL SECURITY--The Company will pay interest on the Securities
(except defaulted interest, which shall be paid as provided in the Indenture) to
the bearer hereof. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the Federal Republic of Germany that at the time of payment is legal tender
for payment of public and private debts. Immediately available funds for the
payment of the principal of (and premium, if any), interest and Additional
Amounts, if any, on this Security due on any Interest Payment Date, Maturity
Date, Redemption Date or other repurchase date will be made available to the
Paying Agent to permit the Paying Agent to pay such funds to the Holders on such
respective dates.[IF REGULATION S SECURITY--Holders of Book-Entry Interests in
this Security (including Euroclear and Cedel on behalf of all their account
holders) must provide instructions to the DTC for receipt of payments in
Deutsche Marks.]]
[IF RULE 144A OR IAI GLOBAL SECURITY--Amounts payable on this Security
shall be made in U.S. dollars (or in such other coin or currency of the United
States of America as at the time of payment is legal tender for the payment
therein of public and private debts) except to the extent any holder of Book-
Entry Interests in this Security (a "U.S. Book-Entry Holder") elects to receive
payments in Deutsche Marks in accordance with the procedures set forth below. To
the extent that any U.S. Book-Entry Holder has not made such election in respect
of any payment of principal or interest, the aggregate amount designated for all
such U.S. Book-Entry Holders in respect of such payment (the "DM Conversion
Amount") will be converted by the Paying Agent into U.S. dollars and paid to or
as directed by the Book-Entry Depositary for payment through DTC's settlement
system to its relevant participants. All costs of any such conversion and any
wire transfers will be deducted from such payments. Any such conversion shall be
based on The Bank of New York's bid quotation, at or prior to 11:00 a.m. New
York time, on the second New York Business Day (as defined below) preceding the
relevant payment date, for the purchase by the Paying Agent of the DM Conversion
Amount of U.S. dollars for settlement on such payment date. If such bid
quotation is not available for any reason, the Paying Agent will endeavor to
obtain a bid quotation from a leading foreign exchange bank in New York City
selected by the Paying Agent for such purpose. If no bid quotation from a
leading foreign exchange bank is available, payment of the DM Conversion Amount
will be made in Deutsche Marks to or as directed by the Book-Entry Depositary
for distribution to the account or accounts specified by DTC to the Book-Entry
Depositary.
Exh. T3C-A-6
A U.S. Book-Entry Holder may elect to receive payment of principal and
interest with respect to the Notes in Deutsche Marks by causing DTC through its
relevant participant to notify the Book-Entry Depositary by the time specified
below of (i) such U.S. Book-Entry Holder's election to receive all or a portion
of such payment in Deutsche Marks and (ii) wire transfer instructions to a
Deutsche Mark account in the Federal Republic of Germany. Such election in
respect of any payment must be made by the U.S. Book-Entry Holder at the time
and in the manner required by DTC's procedures applicable from time to time and
shall, in accordance with such procedures, be irrevocable and shall relate only
to such payment. DTC notifications of such election, wire transfer instructions
and the amount payable in Deutsche Marks must be received by the Book-Entry
Depositary prior to 5:00 p.m. New York time on the tenth day prior to the
payment date for the payment of principal. Any payments in Deutsche Marks shall
be made by or as directed by the Book-Entry Depositary by wire transfer of same-
day funds to Deutsche Mark accounts designated by DTC. The term "New York
Business Day" means any day other than a Saturday or Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to close.]
[IF DEFINITIVE SECURITY--The Company will pay interest (except defaulted
interest, which shall be paid as provided in the Indenture) on the Securities to
the Persons who are registered holders of Securities at the close of business on
the January 15 or July 15 next preceding the interest payment date even if the
Securities are canceled after the record date and on or before the interest
payment date. Holders must surrender Securities to a Paying Agent at an office
of the Paying Agent maintained for such purpose to collect principal payments.
The Company will pay principal and interest in Deutsche Marks or such other coin
or currency of the Federal Republic of Germany that at the time of payment is
legal tender for payment of public and private debts; provided, however, that
with respect to any payment of principal or interest on Definitive Securities
with an aggregate principal amount in excess of DM1,000,000 held by any Holder
or group of Holders, such payment will be made, at the written request of such
Holder or Holders (which shall be a single request with appropriate wire
transfer instructions), by wire transfer of immediately available funds to the
Paying Agent, who in turn will wire such funds to such single account as such
Holder or Holders may in writing to the Paying Agent direct; provided further
that the Paying Agent has received written wire transfer instructions at least
fifteen days prior to the date of any such payment.]
4. Paying Agent and Registrar.
Initially, The Bank of New York, a New York banking corporation
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its Subsidiaries may act as Paying Agent, Registrar or co- registrar.
The Company shall at all times ensure that (i) at least one Paying Agent is
located outside the United Kingdom, (ii) if and so long as the Securities are
listed on the Luxembourg Stock Exchange, a Paying Agent is located in Luxembourg
or such other place as the Luxembourg Stock Exchange may approve and (iii) if
and so long as the Securities are listed on any other securities exchange, any
requirements of such securities exchange as to Paying Agents are satisfied.
Exh. T3C-A-7
5. Indenture.
The Company issued the Securities under an Indenture dated as of January
30, 1998 ("Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of the Company limited to
DM 245.0 million aggregate principal amount at any one time outstanding (subject
to Section 2.07 of the Indenture). This Security is one of the Initial
Securities referred to in the Indenture. The Securities include the Initial
Securities and any Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the issuance of debt by the Company,
the payment of dividends and other distributions and acquisitions or retirements
of the Company's Capital Stock and Subordinated Obligations, the incurrence by
the Company and its Subsidiaries of Liens on its property and assets which do
not equally and ratably secure the Securities, the sale or transfer of assets
and Subsidiary Stock, investments by the Company, the lines of business in which
the Company may operate, consolidations, mergers and transfers of all or
substantially all of the Company's assets, sale and leaseback transactions and
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and its Subsidiaries to restrict distributions and dividends from
Subsidiaries. The limitations are subject to a number of important
qualifications and exceptions.
6. Optional Redemption.
The Securities will be redeemable, at the Company's option, in whole or in
part, at any time on or after February 1, 2003, and prior to maturity. On and
after that date, the Company may redeem the Securities in whole at any time or
in part from time to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest and Additional Amounts,
if any, to the redemption date (and in the case of Definitive Securities,
subject to the right of Holders of record on the relevant record date to receive
interest due on the related interest payment date and Additional Amounts, if
any, in respect thereof), if redeemed during the 12-month period commencing
February 1 of the years set forth below:
YEAR REDEMPTION PRICE
------------------------------------------------ ----------------
2003 ........................................... 105.000%
2004 ........................................... 103.333%
2005 ........................................... 101.667%
2006 and thereafter ............................ 100.000%
In addition, at any time and from time to time prior to February 1, 2001,
the Company may redeem in the aggregate up to 33 1/3% of the original aggregate
principal amount of the Securities with the proceeds of one or more Public
Equity Offerings by the Company following which there is a Public Market, at a
redemption price (expressed as a percentage of principal amount thereof) of 110%
plus accrued interest and Additional Amounts, if any, to the
Exh. T3C-A-8
redemption date (and in the case of Definitive Securities, subject to the right
of Holders of record on the relevant record date to receive interest due on the
relevant interest payment date and Additional Amounts, if any, in respect
thereof); provided, however, that at least 66 2/3% of the original aggregate
principal amount of the Securities must remain outstanding after each such
redemption; and provided, further, that such redemption shall occur within 90
days of the date of the closing of any such Public Equity Offering.
7. Optional Tax Redemption.
The Securities may also be redeemed, at the option of the Company, in
whole but not in part, at any time upon giving not less than 30 nor more than 60
days' notice to the Holders (which notice shall be irrevocable), at a redemption
price equal to the principal amount thereof, together with accrued and unpaid
interest, if any, to the date fixed by the Company for redemption (a "Tax
Redemption Date") and all Additional Amounts, if any, then due and which will
become due on the Tax Redemption Date as a result of the redemption or
otherwise, if the Company determines that, as a result of (i) any change in, or
amendment to, the laws or treaties (or any regulations, protocols or rulings
promulgated thereunder) of the United Kingdom (or any political subdivision or
taxing authority of the United Kingdom) affecting taxation, which change or
amendment becomes effective on or after the Issue Date, (ii) any change in
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the Issue Date or (iii) the
issuance of Definitive Securities due to (A) DTC being at any time unwilling or
unable to continue as or ceasing to be a clearing agency registered under the
Exchange Act, and a successor to DTC registered as a clearing agency under the
Exchange Act is not able to be appointed by the Company within 90 days or (B)
the Depositary being at any time unwilling or unable to continue as a Depositary
and a successor Depositary is not able to be appointed by the Company within 90
days, the Company is, or on the next interest payment date would be, required to
pay Additional Amounts, and the Company determines that such payment obligation
cannot be avoided by the Company taking reasonable measures. Notwithstanding the
foregoing, no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obligated to make such
payment or withholding if a payment in respect of the Securities were then due.
Prior to the publication or, where relevant, mailing of any notice of redemption
of the Securities pursuant to the foregoing, the Company will deliver to the
Trustee an opinion of a tax counsel reasonably satisfactory to the Trustee to
the effect that the circumstances referred to above exist. The Trustee shall
accept such opinion as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Holders.
8. Notice of Redemption.
Notice of redemption will be given at least 30 days but not more than 60
days before the Redemption Date by publishing in a leading newspaper having a
general circulation in New York (which is expected to be the Wall Street
Journal) (and, if and so long as the Securities are listed on the Luxembourg
Stock Exchange and the rules of such Stock Exchange shall so require, a
newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or, in the case of Definitive Securities, mailing notice
to each Holder of
Exh. T3C-A-9
Securities to be redeemed at such ▇▇▇▇▇▇'s registered address. Such notice shall
also be given in accordance with any applicable requirements of any other
securities exchange on which the Securities are listed. Securities in
denominations larger than DM1,000 may be redeemed in part but only in whole
multiples of DM1,000. If money sufficient to pay the redemption price of and
accrued interest and Additional Amounts, if any, on all Securities (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest and Additional Amounts, if any, will
cease to accrue on such Securities (or such portions thereof) called for
redemption.
9. Change of Control Offer.
Upon a Change of Control, the Company will be required to make an offer to
purchase, subject to certain conditions specified in the Indenture, all
outstanding Securities at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest and Additional
Amounts, if any, to the date of repurchase (and in the case of Definitive
Securities subject to the right of holders of record on the relevant record date
to receive interest due on the related interest payment date and Additional
Amounts, if any, in respect thereof) as provided in, and subject to the terms
of, the Indenture. Holders of Securities that are subject to an offer to
purchase will receive such an offer from the Company and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
10. Limitation on Sale of Assets.
When the aggregate amount of Net Available Cash (after application in
accordance with Section 4.06(a)(iii) of the Indenture) from any particular Asset
Disposition exceeds (Pounds)3.0 million (which amount shall be calculated as set
forth in Section 4.06(b) of the Indenture), the Company will be obligated to
make an offer to purchase the maximum principal amount of Securities that is an
integral multiple of DM1,000, that may be purchased with the Net Available Cash
allotted to such offer at a purchase price of 100% of the principal amount
thereof, plus accrued and unpaid interest and Additional Amounts, if any, to the
date fixed for the closing of such offer. If the aggregate principal amount of
Securities surrendered by Holders thereof exceeds the amount of Net Available
Cash allotted to such offer, subject to applicable law, the Trustee shall select
the Securities to be redeemed in accordance with the Indenture; provided,
however, that no Securities of DM1,000 or less shall be purchased in part.
Holders of Securities that are the subject of an offer to purchase will
receive such an offer from the Company in the manner provided in the Indenture
(which may be by publication) prior to any related purchase date and may elect
to have such Securities purchased by completing the form entitled "Option of
Holders to Elect Purchase" appearing below.
11. Denominations; Transfer; Exchange.
[IF GLOBAL SECURITY-- The Securities are in bearer form without coupons in
denominations of DM1,000 and whole multiples of DM1,000.]
Exh. T3C-A-10
[IF DEFINITIVE SECURITY-- The Securities are in registered form without
coupons in denominations of DM1,000 and whole multiples of DM1,000.]
A Holder may transfer or exchange Securities in accordance with the
Indenture. The Trustee or the Depositary may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and other
certifications (including certifications to ensure compliance with applicable
securities laws) and to pay any taxes and fees required by law or permitted by
the Indenture. The Company shall not be required to make, and the Registrar need
not register transfers or exchanges of, Definitive Securities selected for
redemption (except, in the case of Definitive Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Definitive Securities for a
period of 15 days before a selection of Definitive Securities to be redeemed.
12. Persons Deemed Owners.
[IF GLOBAL SECURITY--The bearer of this Security shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture.]
[IF DEFINITIVE SECURITY--The registered Holder of this Security shall be
treated as the owner of it for all purposes, subject to the terms of the
Indenture.]
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
14. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee cash in Deutsche Marks or Federal Republic of Germany
Obligations for the payment of principal of and interest on the Securities to
redemption or maturity, as the case may be.
15. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
(including consents obtained in connection with a tender offer or exchange offer
for the Securities) and (ii) any default or noncompliance with any provision may
be waived with the written consent of the Holders of a majority in principal
amount outstanding of the Securities (including consents obtained in connection
with a tender offer or exchange offer for the Securities). Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to secure
the Securities, or to add additional covenants or surrender rights and powers
conferred on the Company, or to comply with any request of the
Exh. T3C-A-11
SEC in connection with qualifying the Indenture under the Act, or to make any
other change that does not adversely affect the rights of any Securityholder, or
to provide for the issuance and authorization of the Exchange Securities.
16. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for 30 days in
payment of interest on the Securities; (ii) default in payment of principal on
the Securities at maturity, upon redemption pursuant to paragraph 6 or 7 of the
Securities, upon acceleration or other wise; (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (iv) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Subsidiary if the amount accelerated (or so
unpaid) exceeds (Pounds)7,500,000 or its foreign currency equivalent; (v)
certain events of bankruptcy or insolvency with respect to the Company and its
Subsidiaries; and (vi) certain judgments or decrees for the payment of money in
excess of (Pounds) 7,500,000 or its foreign currency equivalent against the
Company or a Subsidiary. If an Event of Default (other than a Default relating
to certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable
immediately. Certain events of bankruptcy, insolvency, or reorganization are
Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
with hold from Securityholders notice of any continuing Default (except a
Default in payment of principal or interest) if and so long as a committee of
its Trust Officers in good faith determines that withholding notice is in the
interest of the Holders.
17. Successors.
Subject to certain exceptions set forth in the Indenture, when a successor
assumes all the obligations of its predecessor under the Securities and the
Indenture in accordance with the terms of the Indenture, the predecessor will be
released from those obligations.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may other wise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
Exh. T3C-A-12
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM ("tenants in common"), TEN ENT ("tenants by the
entireties"), JT TEN ("joint tenants with rights of survivorship and not as
tenants in common"), CUST ("custodian"), and U/G/M/A ("Uniform Gift to Minors
Act").
22. CUSIP [IF REGULATION S SECURITY--and CINS] Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP [IF REGULATION S
SECURITY--and CINS] numbers to be printed on the Securities and has directed the
Trustee to use CUSIP [IF REGULATION S SECURITY --and CINS] numbers in notices of
redemption as a convenience to Securityholders. No representation is made as to
the accuracy of such numbers either as printed on the Securities or as contained
in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
23. Governing Law.
The laws of the State of New York shall govern the Indenture and the
Securities without regard to conflict of law provisions thereof to the extent
that the application of the laws of another jurisdiction would be required
thereby.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
TEXON INTERNATIONAL PLC
ATTENTION: SECRETARY
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. LE4 5BX
Exh. T3C-A-13
[For Global Securities]
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Security shall be DM[__].
The following decreases/increases in the principal amount at maturity of this
Security have been made:
Total Principal
Decrease in Amount at Maturity
Date of Decrease/ Principal Amount at Increase in Principal Following such Notation Made by or
Increase Maturity Amount at Maturity Decrease/ Increase on Behalf of Trustee
----------------- ------------------- --------------------- ------------------ --------------------
Exh. T3C-A-14
[For Definitive Securities]
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ______________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
_____________________________________________________
Date:________________________________________________
Your Signature:______________________________________
Signature Guarantee: ________________________________
(Signature must be guaranteed
by a participant in a recognized
signature guarantee medallion
program)
_____________________________________________________
Sign exactly as your name appears on the other side
of this Security.
Exh. T3C-A-15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[__]
If you want to elect to have only part of this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount: DM
Date:_______________________________ Your Signature:_________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: _______________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
Exh. T3C-A-16
EXHIBIT B
[FORM OF FACE OF EXCHANGE SECURITY]
TEXON INTERNATIONAL PLC
10% SENIOR NOTE DUE 2008
CUSIP[/CINS] Number [__]
No. _________
[INCLUDE IF GLOBAL SECURITY--Texon International plc, a public limited
company incorporated in England and Wales, promises to pay to the bearer upon
surrender hereof the principal sum indicated on Schedule A hereof, on February
1, 2008.
[INCLUDE IF DEFINITIVE SECURITY--Texon International plc, a public limited
company incorporated in England and Wales, promises to pay to [ ], or registered
assigns, the principal sum of DM[ ] on February 1, 2008.] Interest Payment
Dates: February 1 and August 1.
[INCLUDE IF DEFINITIVE SECURITY--Record Dates: January 15 and July 15.]
Additional provisions of this Security are set forth on the other side of
this Security.
[Seal] TEXON INTERNATIONAL PLC,
By: ________________________________ By: ____________________________________
Name: Name:
Title: Title:
Dated: January 30, 1998
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies that
this is one of the Securities
referred to in the Indenture
by ____________________________________
Authorized Signatory
Exh. T3C-B-1
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY]
10% Senior Note due 2008
1. Interest.
Texon International plc, a public limited company incorporated in England
and Wales (such corporation, and its successors and assigns under the Indenture
hereinafter referred to, being herein called the "Company"), promises to pay
interest on the principal amount of this Security at the rate per annum shown
above.
The Company will pay interest semiannually on February 1 and August 1 of
each year, commencing August 1, 1998. Interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from January 30, 1998. Interest will be computed on the basis of a
360-day year of twelve 30-day months. The Company shall pay interest on overdue
principal at the rate borne by the Securities plus 1% per annum, and it shall
pay interest on overdue installments of interest at the same rate to the extent
lawful.
2. Additional Amounts.
All payments made by the Company on the Securities (whether or not in the
form of Definitive Securities) 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 (collectively, "Taxes") imposed or
levied by or on behalf of the United Kingdom or any political subdivision
thereof or any authority having power to tax therein (each a "U.K. Tax
Authority"), unless the withholding or deduction of such Taxes is then required
by law. If any deduction or withholding for, or on account of, any Taxes of any
U.K. Tax Authority shall at any time be required on any payments made by the
Company with respect to the Securities, including payments of principal,
redemption price, interest, liquidated damages or premium, the Company shall pay
such additional amounts (the "Additional Amounts") as may be necessary in order
that the net amounts received in respect of such payments by the Holders of the
Securities or the Trustee, as the case may be, after such withholding or
deduction, equal the respective amounts which would have been received in
respect of such payments in the absence of such withholding or deduction;
provided, however, that no such Additional Amounts shall be payable with respect
to:
(i) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any payments on a
Security held by or on behalf of a Holder or a beneficial owner who is
liable for such Taxes in respect of such Security by reason of the Holder
or beneficial owner having some connection with the United Kingdom
(including being a citizen or resident or national of, or carrying on a
business or maintaining a permanent establishment in, or being physically
present in, the United Kingdom) other than by the mere holding of such
Security or enforcement of rights thereunder or the receipt of payments in
respect thereof;
(ii) in the case of Securities listed on a Recognized Stock Exchange
at the time such Additional Amounts would be payable, any Taxes that are
imposed or withheld as a result of a change in law after the Issue Date
where such withholding or imposition is
Exh. T3C-B-2
by reason of the failure of the Holder or beneficial owner of the Security
to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed by
a statute, treaty, regulation or administrative practice of the taxing
jurisdiction as a precondition to exemption from all or part of such
Taxes;
(iii) except in the case of the winding up of the Company, any
Security presented for payment (where presentation is required) in the
United Kingdom (unless by reason of the Company's actions presentment
could not have been made elsewhere); or
(iv) any Security presented for payment (where Securities are in the
form of Definitive Securities and presentation is required) more than 30
days after the relevant payment is first made available for payment to the
Holder (except to the extent that the Holder would have been entitled to
Additional Amounts had the Security been presented on the last day of such
30 day period).
Such Additional Amounts shall also not be payable where, had the
beneficial owner of the Security been the Holder of the Security, he would not
have been entitled to payment of Additional Amounts by reason of clauses (i) to
(iv) inclusive above.
Upon request, the Company shall provide the Trustee with
documentation satisfactory to the Trustee evidencing the payment of Additional
Amounts. Copies of such documentation shall be made available to the Holders
upon request.
3. Method of Payment.
[IF GLOBAL SECURITY--The Company will pay interest on the Securities
(except defaulted interest, which shall be paid as provided in the Indenture) to
the bearer hereof. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the Federal Republic of Germany that at the time of payment is legal tender
for payment of public and private debts. Immediately available funds for the
payment of the principal of (and premium, if any), interest and Additional
Amounts, if any, on this Security due on any Interest Payment Date, Maturity
Date, Redemption Date or other repurchase date will be made available to the
Paying Agent to permit the Paying Agent to pay such funds to the Holders on such
respective dates.[IF REGULATION S SECURITY--Holders of Book-Entry Interests in
this Security (including Euroclear and Cedel on behalf of all their account
holders) must provide instructions to the DTC for receipt of payments in
Deutsche Marks.]]
[IF RULE 144A OR IAI GLOBAL SECURITY--Amounts payable on the Rule 144A
Global Note and the Institutional Accredited Investor Global Note shall be made
in U.S. dollars (or in such other coin or currency of the United States of
America as at the time of payment is legal tender for the payment therein of
public and private debts) except to the extent any holder of Book-Entry
Interests in either such Global Note (a "U.S. Book-Entry Holder") elects to
receive payments in Deutsche Marks in accordance with the procedures set forth
below. To the extent that any U.S. Book-Entry Holder has not made such election
in respect of any payment of principal or interest, the aggregate amount
designated for all such U.S. Book-Entry Holders in
Exh. T3C-B-3
respect of such payment (the "DM Conversion Amount") will be converted by the
Paying Agent into U.S. dollars and paid to or as directed by the Book-Entry
Depositary for payment through DTC's settlement system to its relevant
participants. All costs of any such conversion and any wire transfers will be
deducted from such payments. Any such conversion shall be based on The Bank of
New York's bid quotation, at or prior to 11:00 a.m. New York time, on the second
New York Business Day (as defined below) preceding the relevant payment date,
for the purchase by the Paying Agent of the DM Conversion Amount of U.S. dollars
for settlement on such payment date. If such bid quotation is not available for
any reason, the Paying Agent will endeavor to obtain a bid quotation from a
leading foreign exchange bank in New York City selected by the Paying Agent for
such purpose. If no bid quotation from a leading foreign exchange bank is
available, payment of the DM Conversion Amount will be made in Deutsche Marks to
or as directed by the Book-Entry Depositary for distribution to the account or
accounts specified by DTC to the Book-Entry Depositary.
A U.S. Book-Entry Holder may elect to receive payment of principal and
interest with respect to the Notes in Deutsche Marks by causing DTC through its
relevant participant to notify the Book-Entry Depositary by the time specified
below of (i) such U.S. Book-Entry Holder's election to receive all or a portion
of such payment in Deutsche Marks and (ii) wire transfer instructions to a
Deutsche Mark account in the Federal Republic of Germany. Such election in
respect of any payment must be made by the U.S. Book-Entry Holder at the time
and in the manner required by DTC's procedures applicable from time to time and
shall, in accordance with such procedures, be irrevocable and shall relate only
to such payment. DTC notifications of such election, wire transfer instructions
and the amount payable in Deutsche Marks must be received by the Book-Entry
Depositary prior to 5:00 p.m. New York time on the tenth day prior to the
payment date for the payment of principal. Any payments in Deutsche Marks shall
be made by or as directed by the Book-Entry Depositary by wire transfer of same-
day funds to Deutsche Mark accounts designated by DTC. The term "New York
Business Day" means any day other than a Saturday or Sunday or a day on which
banking institutions in New York City are authorized or required by law or
executive order to close.]
[IF DEFINITIVE SECURITY--The Company will pay interest (except defaulted
interest) on the Securities to the Persons who are registered holders of
Securities at the close of business on the January 15 or July 15 next preceding
the interest payment date even if the Securities are canceled after the record
date and on or before the interest payment date. Holders must surrender
Securities to a Paying Agent at an office of the Paying Agent maintained for
such purpose to collect principal payments. The Company will pay principal and
interest in Deutsche Marks or such other coin or currency of the Federal
Republic of Germany that at the time of payment is legal tender for payment of
public and private debts; provided, however, that with respect to any payment of
principal or interest on Definitive Securities with an aggregate principal
amount in excess of DM1,000,000 held by any Holder or group of Holders, such
payment will be made, at the written request of such Holder or Holders (which
shall be a single request with appropriate wire transfer instructions), by wire
transfer of immediately available funds to the Paying Agent, who in turn will
wire such funds to such single account as such Holder or Holders may in writing
to the Paying Agent direct; provided further that the Paying Agent has received
written wire transfer instructions at least fifteen days prior to the date of
any such payment.]
Exh. T3C-B-4
4. Paying Agent and Registrar.
Initially, The Bank of New York, a New York banking corporation
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-registrar without notice. The Company
or any of its Subsidiaries may act as Paying Agent, Registrar or co- registrar.
The Company shall at all times ensure that (i) at least one Paying Agent is
located outside the United Kingdom, (ii) if and as long as the Securities are
listed on the Luxembourg Stock Exchange, a Paying Agent is located in Luxembourg
or such other place as the Luxembourg Stock Exchange may approve and (iii) if
and so long as the Securities are listed on any other securities exchange, any
requirements of such securities exchange as to Paying Agents are satisfied.
5. Indenture.
The Company issued the Securities under an Indenture dated as of January
30, 1998 ("Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured obligations of the Company limited to
DM245.0 million aggregate principal amount at any one time outstanding (subject
to Section 2.07 of the Indenture). This Security is one of the Initial
Securities referred to in the Indenture. The Securities include the Initial
Securities and any Exchange Securities issued in exchange for the Initial
Securities pursuant to the Indenture. The Initial Securities and the Exchange
Securities are treated as a single class of securities under the Indenture. The
Indenture imposes certain limitations on the issuance of debt by the Company,
the payment of dividends and other distributions and acquisitions or retirements
of the Company's Capital Stock and Subordinated Obligations, the incurrence by
the Company and its Subsidiaries of Liens on its property and assets which do
not equally and ratably secure the Securities, the sale or transfer of assets
and Subsidiary Stock, investments by the Company, the lines of business in which
the Company may operate, consolidations, mergers and transfers of all or
substantially all of the Company's assets, sale and leaseback transactions and
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and its Subsidiaries to restrict distributions and dividends from
Subsidiaries. The limitations are subject to a number of important
qualifications and exceptions.
6. Optional Redemption.
The Securities will be redeemable, at the Company's option, in whole or in
part, at any time on or after February 1, 2003, and prior to maturity. On and
after that date, the Company may redeem the Securities in whole at any time or
in part from time to time at the following redemption prices (expressed in
percentages of principal amount), plus accrued interest and Additional Amounts,
if any, to the redemption date (and in the case of Definitive Securities,
subject to the right of Holders of record on the relevant record date to receive
interest due on the related interest payment date and Additional Amounts, if
any, in respect thereof), if redeemed during the 12-month period commencing
February 1 of the years set forth below:
Exh. T3C-B-5
YEAR REDEMPTION PRICE
------------------------------------------------ ----------------
2003 ........................................... 105.000%
2004 ........................................... 103.333%
2005 ........................................... 101.667%
2006 and thereafter ............................ 100.000%
In addition, at any time and from time to time prior to February 1, 2001,
the Company may redeem in the aggregate up to 33 1/3% of the original aggregate
principal amount of the Securities with the proceeds of one or more Equity
Offerings by the Company, at a redemption price (expressed as a percentage of
principal amount thereof of 110% plus accrued interest and Additional Amounts,
if any, to the redemption date (and in the case of Definitive Securities,
subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date and Additional Amounts, if
any, in respect thereof); provided, however, that at least 66 2/3% of the
original aggregate principal amount of the Securities must remain outstanding
after each such redemption; and provided, further, that such redemption shall
occur within 90 days of the date of the closing of any such Equity Offering.
7. Optional Tax Redemption.
The Securities may also be redeemed, at the option of the Company, in
whole but not in part, at any time upon giving not less than 30 nor more than 60
days' notice to the Holders (which notice shall be irrevocable), at a redemption
price equal to the principal amount thereof, together with accrued and unpaid
interest, if any, to the date fixed by the Company for redemption (a "Tax
Redemption Date") and all Additional Amounts, if any, then due and which will
become due on the Tax Redemption Date as a result of the redemption or
otherwise, if the Company determines that, as a result of (i) any change in, or
amendment to, the laws or treaties (or any regulations, protocols or rulings
promulgated thereunder) of the United Kingdom (or any political subdivision or
taxing authority of the United Kingdom) affecting taxation, which change or
amendment becomes effective on or after the Issue Date, (ii) any change in
position regarding the application, administration or interpretation of such
laws, treaties, regulations or rulings (including a holding, judgment or order
by a court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the Issue Date or (iii) the
issuance of Definitive Securities due to (A) DTC being at any time unwilling or
unable to continue as or ceasing to be a clearing agency registered under the
Exchange Act, and a successor to DTC registered as a clearing agency under the
Exchange Act is not able to be appointed by the Company within 90 days or (B)
the Depositary being at any time unwilling or unable to continue as a Depositary
and a successor Depositary is not able to be appointed by the Company within 90
days, the Company is, or on the next interest payment date would be, required to
pay Additional Amounts, and the Company determines that such payment obligation
cannot be avoided by the Company taking reasonable measures. Notwithstanding the
foregoing, no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obligated to make such
payment or withholding if a payment in respect of the Securities were then due.
Prior to the publication or, where relevant, mailing of any notice of redemption
of the Securities pursuant to the foregoing, the Company will deliver to the
Trustee an opinion of a tax counsel reasonably satisfactory to the Trustee to
the effect that the circumstances referred to above exist. The Trustee shall
accept such opinion as
Exh. T3C-B-6
sufficient evidence of the satisfaction of the conditions precedent described
above, in which event it shall be conclusive and binding on the Holders.
8. Notice of Redemption.
Notice of redemption will be given at least 30 days but not more than 60
days before the Redemption Date by publishing in a leading newspaper having a
general circulation in New York (which is expected to be the Wall Street
Journal) (and, if and so long as the Securities are listed on the Luxembourg
Stock Exchange and the rules of such Stock Exchange shall so require, a
newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or, in the case of Definitive Securities, mailing notice
to each Holder of Securities to be redeemed at such ▇▇▇▇▇▇'s registered address.
Such notice shall also be given in accordance with any applicable requirements
of any other securities exchange on which the Securities are listed. Securities
in denominations larger than DM1,000 may be redeemed in part but only in whole
multiples of DM1,000. If money sufficient to pay the redemption price of and
accrued interest and Additional Amounts, if any, on all Securities (or portions
thereof) to be redeemed on the redemption date is deposited with the Paying
Agent on or before the redemption date and certain other conditions are
satisfied, on and after such date interest and Additional Amounts, if any, will
cease to accrue on such Securities (or such portions thereof) called for
redemption.
9. Change of Control Offer.
Upon a Change of Control, the Company will be required to make an offer to
purchase, subject to certain conditions specified in the Indenture, all
outstanding Securities at a purchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid interest and Additional
Amounts, if any, to the date of repurchase (and in the case of Definitive
Securities subject to the right of holders of record on the relevant record date
to receive interest due on the related interest payment date and Additional
Amounts, if any, in respect thereof) as provided in, and subject to the terms
of, the Indenture. Holders of Securities that are subject to an offer to
purchase will receive such an offer from the Company and may elect to have such
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
10. Limitation on Sale of Assets.
When the aggregate amount of Net Available Cash (after application in
accordance with Section 4.06(a)(iii) of the Indenture) from any particular Asset
Disposition exceeds (Pounds)3.0 million (which amount shall be calculated as set
forth in Section 4.06(b) of the Indenture), the Company will be obligated to
make an offer to purchase the maximum principal amount of Securities, that is an
integral multiple of DM1,000, that may be purchased with the Net Available Cash
allotted to such offer at a purchase price of 100% of the principal amount
thereof, plus accrued and unpaid interest and Additional Amounts, if any, to the
date fixed for the closing of such offer. If the aggregate principal amount of
Securities surrendered by Holders thereof exceeds the amount of Net Available
Cash allotted to such offer, subject to applicable law, the Trustee shall select
the Securities to be redeemed in accordance with the Indenture; provided,
however, that no Securities of DM1,000 or less shall be purchased in part.
Holders of Securities that are the subject of an offer to purchase will receive
such an offer from the Company in the
Exh. T3C-B-7
manner provided in the Indenture (which may be by publication) prior to any
related purchase date and may elect to have such Securities purchased by
completing the form entitled "Option of Holders to Elect Purchase" appearing
below.
11. Denominations; Transfer; Exchange.
[IF GLOBAL SECURITY-- The Securities are in bearer form without coupons in
denominations of DM1,000 and whole multiples of DM1,000.]
[IF DEFINITIVE SECURITY-- The Securities are in registered form without
coupons in denominations of DM1,000 and whole multiples of DM1,000.]
A Holder may transfer or exchange Securities in accordance with the
Indenture. The Trustee or the Depositary may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and other
certifications (including certifications to ensure compliance with applicable
securities laws) and to pay any taxes and fees required by law or permitted by
the Indenture. The Company shall not be required to make, and the Registrar need
not register transfers or exchanges of, Definitive Securities selected for
redemption (except, in the case of Definitive Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Definitive Securities for a
period of 15 days before a selection of Definitive Securities to be redeemed.
12. Persons Deemed Owners.
[IF GLOBAL SECURITY--The bearer of this Security shall be treated as the
owner of it for all purposes, subject to the terms of the Indenture.] [IF
DEFINITIVE SECURITY--The registered Holder of this Security shall be treated as
the owner of it for all purposes, subject to the terms of the Indenture.]
13. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
14. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate some
or all of its obligations under the Securities and the Indenture if the Company
deposits with the Trustee cash in Deutsche Marks or Federal Republic of Germany
Obligations for the payment of principal of and interest on the Securities to
redemption or maturity, as the case may be.
15. Amendment, Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
(including consents obtained in connection with a tender offer or exchange offer
for the Securities) and (ii) any default or noncompliance with any
Exh. T3C-B-8
provision may be waived with the written consent of the Holders of a majority in
principal amount outstanding of the Securities (including consents obtained in
connection with a tender offer or exchange offer for the Securities). Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 of the Indenture, or to provide for uncertificated
Securities in addition to or in place of certificated Securities, or to secure
the Securities, or to add additional covenants or surrender rights and powers
conferred on the Company, or to comply with any request of the SEC in connection
with qualifying the Indenture under the Act, or to make any other change that
does not adversely affect the rights of any Securityholder, or to provide for
the issuance and authorization of the Exchange Securities.
16. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for 30 days in
payment of interest on the Securities; (ii) default in payment of principal on
the Securities at maturity, upon redemption pursuant to paragraph 6 or 7 of the
Securities, upon acceleration or other wise; (iii) failure by the Company to
comply with other agreements in the Indenture or the Securities, in certain
cases subject to notice and lapse of time; (iv) certain accelerations (including
failure to pay within any grace period after final maturity) of other
Indebtedness of the Company or any Subsidiary if the amount accelerated (or so
unpaid) exceeds (Pounds)7,500,000 or its foreign currency equivalent; (v)
certain events of bankruptcy or insolvency with respect to the Company and its
Subsidiaries; and (vi) certain judgments or decrees for the payment of money in
excess of (Pounds)7,500,000 or its foreign currency equivalent against the
Company or a Subsidiary. If an Event of Default (other than a Default relating
to certain events of bankruptcy, insolvency or reorganization of the Company)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the outstanding Securities may declare the principal of and
accrued but unpaid interest on all the Securities to be due and payable
immediately. Certain events of bankruptcy, insolvency, or reorganization are
Events of Default which will result in the Securities being due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
with hold from Securityholders notice of any continuing Default (except a
Default in payment of principal or interest) if and so long as a committee of
its Trust Officers in good faith determines that withholding notice is in the
interest of the Holders.
17. Successors.
Subject to certain exceptions set forth in the Indenture, when a successor
assumes all the obligations of its predecessor under the Securities and the
Indenture in accordance with the terms of the Indenture, the predecessor will be
released from those obligations.
Exh. T3C-B-9
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may other wise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Securityholder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM ("tenants in common"), TEN ENT ("tenants by the
entireties"), JT TEN ("joint tenants with rights of survivorship and not as
tenants in common"), CUST ("custodian"), and U/G/M/A ("Uniform Gift to Minors
Act").
22. CUSIP [and CINS] Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP [and CINS]
numbers to be printed on the Securities and has directed the Trustee to use
CUSIP [and CINS] numbers in notices of redemption as a convenience to
Securityholders. No representation is made as to the accuracy of such numbers
either as printed on the Securities or as contained in any notice of redemption
and reliance may be placed only on the other identification numbers placed
thereon.
23. Governing Law.
The laws of the State of New York shall govern the Indenture and the
Securities without regard to conflict of law provisions thereof to the extent
that the application of the laws of another jurisdiction would be required
thereby.
Exh. T3C-B-10
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST AND
WITHOUT CHARGE TO THE SECURITY HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
TEXON INTERNATIONAL PLC
ATTENTION: SECRETARY
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. LE4 5BX
Exh. T3C-B-11
[For Global Securities]
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Security shall be DM[__].
The following decreases/increases in the principal amount at maturity of this
Security have been made:
Total Principal
Decrease in Amount at Maturity
Date of Decrease/ Principal Amount at Increase in Principal Following such Notation Made by or
Increase Maturity Amount at Maturity Decrease/ Increase on Behalf of Trustee
----------------- ------------------- --------------------- ------------------ --------------------
Exh. T3C-B-12
[For Definitive Securities]
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint __________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
________________________________________________________________________________
Date: ______________________________ Your Signature: ________________________
Signature Guarantee: ___________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
_________________________________________
(Sign exactly as your name appears on the
other side of the Security)
Exh. T3C-B-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to
Section 4.06 or 4.08 of the Indenture, check the box:
[__]
If you want to elect to have only part of this Security purchased by the Company
pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
DM
Date: ______________________________ Your Signature:_________________________
(Sign exactly as your name appears on the other side of the Security)
Signature Guarantee: ___________________________________________________
(Signature must be guaranteed by a participant in a
recognized signature guarantee medallion program)
Exh. T3C-B-14
EXHIBIT C
FORM OF TRANSFER CERTIFICATE - *
U.S. GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
DURING THE RESTRICTED PERIOD
(Transfers pursuant to Section 2.06(a)(i)(1)
of the Indenture)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the [Rule 144A Global Securities (CUSIP No.
▇▇▇▇▇▇▇▇▇)] [IAI Global Securities (CUSIP No. ▇▇▇▇▇▇▇▇▇)] and held by you on
behalf of The Depository Trust Company who in turn is holding an interest
therein on behalf of the undersigned (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who, during the Restricted Period, will take delivery thereof in the form of an
equal aggregate principal amount of Securities evidenced by the Regulation S
Global Security (CINS No. ▇▇▇▇▇▇▇▇▇), which amount, immediately after such
transfer, is to be held through the Euroclear Operator or Cedel or both.
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 or Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act") and accordingly the Transferor
does hereby further certify that:
(1) the offer of the Securities was not made to a person in the
United States or to or for the account or benefit of a U.S. person;
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States, or
Exh. T3C-C-1
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903 or 904 of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described above will be held through the Euroclear
Operator or Cedel or both.
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title to
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
Exh. T3C-C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE -*
U.S. GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
AFTER THE RESTRICTED PERIOD
(TRANSFERS PURSUANT TO SECTION 2.06(A)(I)(2)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the [Rule 144A Global Securities (CUSIP No.
▇▇▇▇▇▇▇▇▇)] [IAI Global Securities (CUSIP No. ▇▇▇▇▇▇▇▇▇)] and held by you on
behalf of The Depository Trust Company who in turn is holding an interest
therein on behalf of the undersigned (the "Transferor"). The Transferor has
requested a transfer of such beneficial interest in the Securities to a Person
who will take delivery thereof in the form of an equal aggregate principal
amount of Securities evidenced by the Regulation S Global Security (CINS No.
▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 903 and Rule 904 under the United States Securities
Act of 1933, as amended (the "Securities Act") and accordingly the Transferor
does hereby certify that:
(1) the offer of the Securities was not made to a person in the
United States or to or for the account or benefit of a U.S. person;
(2) either:
(A) at the time the buy order was originated, the transferee was
outside the United States or the Transferor and any person acting on
its behalf reasonably believed that the transferee was outside the
United States, or
Exh. T3C-D-1
(B) the transaction was executed in, on or through the facilities of
a designated offshore securities market and neither the Transferor
nor any person acting on its behalf knows that the transaction was
pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903 or 904 of Regulation
S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title to
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
Exh. T3C-D-2
EXHIBIT E
FORM OF TRANSFER CERTIFICATE - *
REGULATION S GLOBAL SECURITY TO
U.S. GLOBAL SECURITY
DURING THE RESTRICTED PERIOD
(TRANSFERS PURSUANT TO SECTION 2.06(A)(I)(3)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the Regulation S Global Security (CINS No.
▇▇▇▇▇▇▇▇▇) and held by you on behalf of the Depository Trust Company who in turn
is holding an interest therein on behalf of [insert name of transferor] (the
"Transferor") through the Euroclear Operator or Cedel or both. The Transferor
has requested a transfer of such beneficial interest in the Securities to a
Person who, and during the Restricted Period, will take delivery thereof in the
form of an equal principal amount of Securities evidenced by the [Rule 144A
Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)] [IAI Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇)].
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been [effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Transferor and any person acting on its behalf reasonably believes (i) the
transferee of such Securities is purchasing the Securities for its own account,
or for one or more accounts with respect to which such transferee exercises sole
investment discretion, (ii) such transferee and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, and (iii) such
transferee is purchasing the Securities in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities laws
of any state of the United States.]** [(i) made to an Institutional Accredited
Investor purchasing for its own account, or for the account of an Institutional
Accredited Investor, in a principal amount of Notes of DM500,000 or greater,
that has furnished to the
Exh. T3C-E-1
Depositary a signed letter in substantially the form set forth in Annex A hereto
and (ii) effected in accordance with any applicable securities laws of any state
of the United States.]***
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser.
Dated:
[Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
** Include if transfer is to the Rule 144A Global Security.
*** Include if transfer is to the IAI Global Security.
Exh. T3C-E-2
EXHIBIT F
FORM OF TRANSFER CERTIFICATE - *
IAI SECURITY TO
RULE 144A GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 2.06(A)(I)(4)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the IAI Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)
and held by you on behalf of the Depository Trust Company who in turn is holding
an interest therein on behalf of [insert name of transferor] (the "Transferor").
The Transferor has requested a transfer of such beneficial interest in the
Securities to a Person who will take delivery thereof in the form of an equal
principal amount of Securities evidenced by the Rule 144A Global Security (CUSIP
No. ▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been effected pursuant to
and in accordance with Rule 144A under the United States Securities Act of 1933,
as amended, and accordingly the Transferor does hereby further certify that the
Transferor and any person acting on its behalf reasonably believes (i) the
transferee of such Securities is purchasing the Securities for its own account,
or for one or more accounts with respect to which such transferee exercises sole
investment discretion, (ii) such transferee and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A, and (iii) such
transferee is purchasing the Securities in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities laws
of any state of the United States.
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser.
Exh. T3C-F-1
Dated: [Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
Exh. T3C-F-2
EXHIBIT G
FORM OF TRANSFER CERTIFICATE - *
RULE 144A SECURITY TO
IAI GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 2.06(A)(I)(5)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the Rule 144A Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇) and held by you on behalf of the Depository Trust Company who in turn
is holding an interest therein on behalf of [insert name of transferor] (the
"Transferor"). The Transferor has requested a transfer of such beneficial
interest in the Securities to a Person who will take delivery thereof in the
form of an equal principal amount of Securities evidenced by the IAI Global
Security (CUSIP No. ▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such Securities, the
Transferor does hereby certify that such transfer has been (i) made to an
Institutional Accredited Investor purchasing for its own account, or for the
account of an Institutional Accredited Investor, in a principal amount of Notes
of DM500,000 or greater, that has furnished to the Depositary a signed letter
substantially in the form set forth in Annex A hereto and (ii) effected in
accordance with any applicable securities laws of any state of the United
States.
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser.
Exh. T3C-G-1
Dated: [Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title of
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
EXHIBIT H
FORM OF EXCHANGE CERTIFICATE - *
EXCHANGES OF U.S. GLOBAL SECURITY
FOR REGULATION S GLOBAL SECURITY
(EXCHANGE PURSUANT TO SECTION 2.06(A)(I)(6)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the [Rule 144A Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇)] [IAI Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)] and held by you on
behalf of The Depository Trust Company who in turn is holding an interest
therein on behalf of the undersigned (the "Beneficial Owner"). The Beneficial
Owner has requested that its beneficial interest in such Securities be exchanged
for a beneficial interest in an equal aggregate principal amount of Securities
evidenced by the Regulation S Global Security (CINS No. ▇▇▇▇▇▇▇▇▇).
In connection with such request and in respect of such Securities, the
Beneficial Owner does hereby certify that (a) upon such exchange, it will be the
beneficial owner of such Securities, (b) it is [not a U.S. person (as defined in
Regulation S under the Securities Act) and is]** located outside the United
States (within the meaning of Regulation S) and acquired, or has agreed to
acquire and upon such exchange will have acquired, such Securities in an
offshore transaction (within the meaning of Regulation S) outside the United
States and otherwise in compliance with Regulation S[, (c) it is not an
"affiliate" (as defined in Rule 144 under the Securities Act) of the Company or
a person acting on behalf of such an affiliate and (d) it is not in the business
of buying and selling securities or, if it is in such business, it did not
acquire such Securities from the Company or any affiliate thereof in the initial
distribution of the Securities].** [In addition, the Beneficial Owner hereby
agrees that it will not, on or before the 40th day after the Issue Date, offer,
sell, pledge or otherwise transfer the Securities issued in such exchange except
(a) to a Person who it reasonably believes (or it and anyone acting on its
behalf reasonably believes) is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act in a transaction meeting the
requirements of Rule 144A and in
Exh. T3C-H-1
accordance with any applicable securities laws of any state of the United
States, (b) in an offshore transaction meeting the requirements of Rule 903 or
Rule 904 under the Securities Act or (c) to an Institutional Accredited Investor
purchasing for its own account or for the account of such an Institutional
Accredited Investor, in each case in a minimum principal amount of Notes of
DM500,000, that has delivered to the Depositary a transfer letter in the form
required by the Indenture which provides among other things, that the transferee
is acquiring such Notes not for distribution in violation of the Securities Act,
and, in each case, in accordance with any applicable securities laws of any
state of the United States.]**
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser.
Dated: [Insert Name of Beneficial Owner]
By: ____________________________________
Name:
Title:
(If the Beneficial Owner is a
corporation, partnership or fiduciary,
the title of the Person signing on
behalf of such transferor must be
stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of exchange certificate.
** Insert these bracketed provisions only if the exchange will occur during
the Restricted Period.
Exh. T3C-H-2
EXHIBIT I
FORM OF EXCHANGE CERTIFICATE -*
EXCHANGES OF REGULATION S GLOBAL SECURITY
FOR U.S. GLOBAL SECURITY
(EXCHANGE PURSUANT TO SECTION 2.06(A)(I)(5)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the Regulation S Global Security (CINS No.
▇▇▇▇▇▇▇▇▇) and held by you on behalf of The Depository Trust Company who in turn
is holding an interest therein on behalf of the undersigned (the "Beneficial
Owner"). The Beneficial Owner has requested that its beneficial interest in such
Securities be exchanged for a beneficial interest in an equal aggregate
principal amount of Securities evidenced by the [Rule 144A Global Security
(CUSIP No. ▇▇▇▇▇▇▇▇▇)] [IAI Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)].
In connection with such request and in respect of such Securities, as the
Beneficial Owner we acknowledge (or if we are acting for the account of another
Person, such Person has confirmed to us in writing that it acknowledges) that
the Securities have not been and will not be registered under the Securities Act
of 1933, as amended (the "Act").
We certify that we are (or it is) the beneficial owner of the Securities
and that we are (or it is) [a "qualified institutional buyer": (as defined in
Rule 144A under the Act) acting for our own account or for the account of one or
more qualified institutional buyers, and, accordingly, we agree (or if we were
acting for the account of one or more qualified institutional buyers, each such
qualified institutional buyer]** [an Institutional Accredited Investor acting
for our own account or on the account of an Institutional Accredited Investor,
exchanging beneficial interests in an aggregate principal amount of Notes of
DM500,000 or greater, have (or it has) furnished the Depositary a signed letter
substantially in the form set forth in Annex A hereto, and accordingly, we agree
(or if we are acting on behalf of an Institutional Accredited Investor, such
Institutional Accredited Investor]*** has confirmed to us that it agrees) that
we (or it) will not
Exh. T3C-I-1
offer, sell, pledge or otherwise transfer the Securities except in accordance
with the Private Placement Legend set forth in the Securities which limits
sales, among other things, (i) (A) to a Person whom we and anyone acting on our
behalf reasonably believe (or it and anyone acting on its behalf reasonably
believes) is a qualified institutional buyer in a transaction meeting the
requirements of Rule 144A, (B) pursuant to the exemption from registration under
the Act provided by Rule 144 (if available) or (C) to an Institutional
Accredited Investor purchasing for its own account or for the account of an
Institutional Accredited Investor, in a minimum principal amount of Notes of
DM500,000 that delivers a letter to the Depositary in the form required by the
Indenture, in each case in accordance with any applicable securities laws of the
states of the United States or (ii) in an offshore transaction meeting the
requirements of Rule 903 or Rule 904 of Regulation S, in each case subject to
the requirements of the Indenture.
If we are a broker-dealer, we further certify that we are acting for the
account of our customer and that our customer has confirmed the accuracy of the
representations contained herein that are applicable to it (including the
representations with respect to beneficial ownership).
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title to
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
** For exchange into Rule 144A Global Security.
*** For exchange into IAI Global Security.
Exh. T3C-I-2
EXHIBIT J
FORM OF EXCHANGE CERTIFICATE -*
EXCHANGES OF U.S. GLOBAL SECURITY
FOR ANOTHER U.S. GLOBAL SECURITY
(EXCHANGE PURSUANT TO SECTION 2.06(A)(I)(6)
OF THE INDENTURE)
The Bank of New York, as Depositary
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Trustee Administration
Re: Texon International plc
10% Senior Notes
due 2008 (the "Securities")
Reference is hereby made to the Indenture dated as of January 30, 1998
(the "Indenture"), between Texon International plc (the "Company") and The Bank
of New York, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
This letter relates to DM245.0 million aggregate principal amount of
Securities which are evidenced by the [Rule 144A Global Security (CUSIP No.
▇▇▇▇▇▇▇▇▇)] [IAI Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)] and held by you on
behalf of The Depository Trust Company who in turn is holding an interest
therein on behalf of the undersigned (the "Beneficial Owner"). The Beneficial
Owner has requested that its beneficial interest in such Securities be exchanged
for a beneficial interest in an equal aggregate principal amount of Securities
evidenced by the [Rule 144A Global Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)] [IAI Global
Security (CUSIP No. ▇▇▇▇▇▇▇▇▇)].
In connection with such request and in respect of such Securities, as the
Beneficial Owner we acknowledge (or if we are acting for the account of another
Person, such Person has confirmed to us in writing that it acknowledges) that
the Securities have not been and will not be registered under the Securities Act
of 1933, as amended (the "Act").
We certify that we are (or it is) the beneficial owner of the Securities
and that we are (or it is) [a "qualified institutional buyer": (as defined in
Rule 144A under the Act) acting for our own account or for the account of one or
more qualified institutional buyers, and, accordingly, we agree (or if we were
acting for the account of one or more qualified institutional buyers, each such
qualified institutional buyer]** [an Institutional Accredited Investor acting
for our own account or the account of an Institutional Accredited Investor,
exchanging beneficial interests in an aggregate principal amount of Notes of
DM500,000 or greater, and have (or it has) furnished the Depositary a signed
letter substantially in the form set forth in Annex A hereto, and accordingly,
we agree (or if we are acting on behalf of an Institutional Accredited
Investors, such
Exh. T3C-J-1
Institutional Accredited Investor]*** has confirmed to us that it agrees) that
we (or it) will not offer, sell, pledge or otherwise transfer the Securities
except (i) (A) to a Person whom we and anyone acting on our behalf reasonably
believe (or it and anyone acting on its behalf reasonably believes) is a
qualified institutional buyer in a transaction meeting the requirements of Rule
144A, (B) pursuant to the exemption from registration under the Act provided by
Rule 144 (if available) or (C) to an Institutional Accredited Investor
purchasing for its own account or for the account of such an Institutional
Accredited Investor, in a minimum principal amount of Notes of DM500,000, that
delivers a letter to the Depositary in the form required by the Indenture, in
each case in accordance with any applicable securities laws of the states of the
United States or (ii) in an offshore transaction meeting the requirements of
Rule 903 or Rule 904 of Regulation S.
If we are a broker-dealer, we further certify that we are acting for the
account of our customer and that our customer has confirmed the accuracy of the
representations contained herein that are applicable to it (including the
representations with respect to beneficial ownership).
This certificate and the statements contained herein are made for the
benefit of the Company, the Note Guarantors and the Initial Purchaser. Terms
used in this certificate and not otherwise defined in the Indenture have the
meanings set forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By: ____________________________________
Name:
Title:
(If the transferor is a corporation,
partnership or fiduciary, the title to
the Person signing on behalf of such
transferor must be stated.)
----------
* If the Security is a Definitive Security, appropriate changes need to be
made to this form of transfer certificate.
** For exchanges into Rule 144A Global Security.
*** For exchanges into IAI Global Security.
Exh. T3C-J-2
ANNEX A
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
Texon International plc
c/o The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
This certificate is delivered to request a transfer of DM __________
principal amount of the 10% Senior Notes due 2008 (the "Notes") of Texon
International plc (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name: _____________________________
Address: __________________________
Taxpayer ID Number: _______________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least DM500,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes and invest in
or purchase securities similar to the Notes in the normal course of our
business. We, and any accounts for which we are acting, are each able to bear
the economic risk of our or its investment.
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (a)(1) to the Company, (2) pursuant to a
registration statement which has been declared effective and remains effective
under the Securities Act, (3) for so long as the Notes are eligible for resale
pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a person we
reasonably believe is a qualified institutional buyer under Rule 144A (a "QIB")
that is purchasing for its own account or for the account of a QIB and to whom
notice is given that the
Exh. T3C - Annex A-1
transfer is being made in reliance on Rule 144A, (4) in an offshore transaction
within the meaning of, and in compliance with, Regulation S under the Securities
Act, (5) to an "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act that is an institutional investor (an
"Institutional Accredited Investor") purchasing for its own account or for the
account of such an Institutional Accredited Investor, in each case in a minimum
principal amount of Notes of DM500,000, or (6) pursuant to any other available
exemption from the registration requirements of the Securities Act and (b) in
accordance with all applicable securities laws of the states of the U.S.,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resale will not
apply subsequent to the Resale Restriction Termination Date. If any resale or
other transfer of the Notes is proposed to be made pursuant to clause (5) above
prior to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Book-Entry Depositary, which shall provide, among other things, that the
transferee is an Institutional Accredited Investor within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Notes not for distribution in violation of the Securities Act. We
acknowledge that the Company reserves the right prior to any offer, sale or
other transfer prior to the Resale Termination Date of the Notes (including
beneficial interests in the Global Notes) pursuant to clause (a)(4), (a)(5) or
(a)(6) above to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to the Company and, prior to any offer,
sale or other transfer pursuant to clause (a)(1) through (a)(6) above, to
require the transfer certifications required pursuant to the Indenture and the
Note Depositary Agreement.
TRANSFEREE: ___________________________
By: ___________________________________
Exh. T3C - Annex A-2
---------------------------
TEXON INTERNATIONAL LIMITED
(formerly Texon International PLC)
10% Senior Notes due 2010
DM 61,250,000
---------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 22, 2002
to the
INDENTURE
In respect of Texon International Limited's DM 245,000,000
10% Senior Notes due 2008
Dated as of January 30, 1998
---------------------------
THE BANK OF NEW YORK,
Trustee
Exh. T3C - Supp.-1
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
November 22, 2002, to the indenture dated as of January 30, 1998 (the
"Indenture") between TEXON INTERNATIONAL LIMITED (formerly Texon International
plc), a limited company incorporated in England and Wales (the "Company") and
THE BANK OF NEW YORK, a New York banking corporation, as Trustee (the
"Trustee").
WHEREAS:
(A) Pursuant to the Indenture between the Company and the Trustee, the
Company authorised the issue of DM 245,000,000 10% Senior Notes due 2008 (the
"Securities");
(B) Pursuant to an order (the "Order") of the High Court of Justice of
England and Wales (the "High Court") dated November 7, 2002, the High Court has
sanctioned a scheme of arrangement pursuant to section 425 of the Companies Act
1985 (the "Scheme of Arrangement") between the Company and the scheme creditors
named therein which is binding on all scheme creditors (whether or not such
scheme creditors have voted in favour of the scheme), the terms of which
provide, inter alia, that:
(i) 75% of the outstanding principal amount of each of the
Securities (totalling (euro)93, 949,883) be redeemed, and 75% of the
accrued but unpaid interest on the Securities from 1 August 2002 up to and
including the effective date of the Scheme of Arrangement, 50% of the
interest due on the Securities on 1 August 2002 (totalling
(euro)3,131,663) and all interest upon overdue interest for late payment
of the interest due on 1 August 2002, be satisfied and discharged, all by
way of the issue of the ordinary shares and preference shares referred to
in sub-paragraph (iii) below to the beneficial holders of the Securities;
(ii) certain of the terms and conditions of the remaining Securities
as set out in the Indenture be amended, including amendments extending the
maturity date by two years to 1 February 2010 and making the Securities
redeemable by the Company at any time; and
(iii) the beneficial holders of the Securities referred to in the
Scheme of Arrangement receive ordinary shares and preference shares
representing 90% of the issued share capital of the Company.
(C) Pursuant to the terms of the Scheme of Arrangement and the Order, (i)
the Company and the Trustee have been directed to enter into this Supplemental
Indenture; and (ii) upon the amendments referred to above and more fully
described herein taking effect in accordance with the Order, the respective
rights and obligations of the Company and the Holders of the Securities will be
governed, subject and without prejudice to the terms of the Scheme of
Arrangement, solely by the Indenture as amended and supplemented by this
Supplemental Indenture in accordance with the Scheme of Arrangement;
(E) Pursuant to an order dated November 15, 2002, the United States
Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court")
has granted a permanent injunction and other relief (the "Injunction") under
Section 304 of the U.S. Bankruptcy Code, enforcing the terms of the Scheme of
Arrangement in the United States against all scheme creditors and providing,
inter alia, that the Trustee is authorized and directed to execute and deliver
this Supplemental Indenture in accordance with the Scheme of Arrangement; and
(F) Based on the Scheme of Arrangement, the Order and the Injunction, and
solely in order to reflect the changes to the terms of the Indenture and the
Securities required under the Scheme of Arrangement, the Order and the
Injunction, the Trustee has agreed to enter into this Supplemental Indenture.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSES:
The Company covenants and agrees with the Trustee, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
Exh. T3C - Supp.-2
ARTICLE ONE
AUTHORITY OF TRUSTEE; INDEMNITY
Section 1.1. Authority of Trustee.
(a) The Trustee is entering into this Supplemental Indenture in reliance
on:
(i) the Scheme of Arrangement, the Order and the Injunction, and in
particular on the respective directions to the Trustee to enter into this
Supplemental Indenture contained in the Scheme of Arrangement, as
sanctioned by the Order, and in the Injunction, being in full force and
effect and legally binding on the Trustee;
(ii) each of the High Court and the Bankruptcy Court having the
requisite jurisdiction over the Holders and the Trustee to give such
authority and direction to the Trustee to enter into this Supplemental
Indenture;
(iii) the Order and the Injunction conferring on the Trustee the
requisite authority to enter into this Supplemental Indenture; and
(iv) the accuracy of the statements made in the foregoing recitals
and of the representations and warranties of the Company contained in
Article Three hereof.
The Company acknowledges and agrees that the Trustee has based such reliance
solely on an assumption that the foregoing matters are true and that the Trustee
has not independently verified the validity of such assumption.
(b) The Trustee has agreed to execute this Supplemental Indenture to
evidence the modifications to the terms of the Indenture and the Securities, as
hereinafter set forth, which are required to be made to the Indenture and the
Securities pursuant to the terms of the Scheme of Arrangement and in order to
comply with the Order and the Injunction.
Section 1.2. No Representations by Trustee; ▇▇▇▇▇▇▇'s Disclaimer.
(a) The recitals contained herein, and the representations and warranties
of the Company in Article Three hereof, shall be taken solely as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
(b) The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Supplemental Indenture or of the
Indenture or the Securities, in each case as amended and supplemented by this
Supplemental Indenture.
Section 1.3 Indemnity.
The Company hereby agrees to indemnify the Trustee against any and all
loss, liability or expense incurred by the Trustee in connection with actions
taken by it in furtherance of the implementation of the Scheme of Arrangement,
including without limitation in respect of its execution and delivery of this
Supplemental Indenture, in accordance with the provisions of Section 707 of the
Indenture, which provisions shall apply mutatis mutandis as if set out in full
herein.
Section 1.4 Qualification under the Trust Indenture Act.
If and to the extent that this Supplemental Indenture, or the Indenture as
amended and supplemented by this Supplemental Indenture, is required to be
qualified under the Trust Indenture Act of 1939, as amended, for securities to
have been or to be issued hereunder or thereunder, the Company shall so qualify
this Supplemental Indenture or such Indenture, as the case may be, including
without limitation by filing an application with the SEC on Form T-3 pursuant to
and in accordance with Section 307(a) of the Trust Indenture Act.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 2.1. Amendments Effective upon Execution.
(a) Effective as of the date hereof, 75% of the outstanding principal
amount of each of the Securities (totalling (euro)93,949,883) is redeemed, and
75% of the accrued but unpaid interest on the Securities from 1 August 2002 up
to and including the effective date of the Scheme of Arrangement, 50%
Exh. T3C - Supp.-3
of the interest due on the Securities on 1 August 2002 (totalling
(euro)3,131,663) and all interest upon overdue interest for late payment of the
interest due on 1 August 2002, are satisfied and discharged.
(b) Effective as of the date hereof, in accordance with the Scheme of
Arrangement and the Order, the Indenture is amended as set forth in Schedule "A"
to this Supplemental Indenture.
(c) All references in the Indenture to "this Indenture" or words of
similar import shall mean the Indenture as amended and supplemented in
accordance with this Supplemental Indenture.
Section 2.2. Securities.
In exchange for each original Initial Security issued prior to the date
hereof (the "Original Initial Securities"), in accordance with Section 9.05 of
the Indenture the Company hereby agrees to execute a new Initial Security (the
"Amended and Restated Initial Securities"). Each Amended and Restated Initial
Security will be substantially in the form of Exhibit A to the Indenture, with
those changes necessary to reflect the amendments set forth in this Supplemental
Indenture. From the date hereof, all references in the Indenture, as amended, to
the Initial Securities, shall mean the Amended and Restated Initial Securities.
In exchange for each original Exchange Security issued prior to the date
hereof (the "Original Exchange Securities"), in accordance with Section 9.05 of
the Indenture the Company hereby agrees to execute a new Exchange Security (the
"Amended and Restated Exchange Securities"). Each Amended and Restated Exchange
Security will be substantially in the form of Exhibit B to the Indenture, with
those changes necessary to reflect the amendments set forth in this Supplemental
Indenture. From the date hereof, all references in the Indenture, as amended, to
the Exchange Securities, shall mean the Amended and Restated Exchange
Securities.
ARTICLE THREE
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Trustee as follows:
(A) POWER AND AUTHORITY: The Company has the power and authority to enter
into, and perform and comply with its obligations under, this Supplemental
Indenture and to carry out the transactions contemplated by this Supplemental
Indenture; and all conditions precedent for the Trustee to execute and deliver
this Supplemental Indenture have been satisfied;
(B) AUTHORISATION AND OBLIGATIONS BINDING: All actions, conditions,
notices and things required to be taken, fulfilled, given and done by it in
order:
(i) to enable it to enter into, and perform and comply with its
obligations under, this Supplemental Indenture and to carry out the
transactions contemplated by this Supplemental Indenture; and
(ii) to ensure that those obligations are valid, legally binding and
enforceable in accordance with their terms;
have been taken, fulfilled, given and done;
and this Supplemental Indenture constitutes its legal, valid and binding
obligation, enforceable against the Company in accordance with its terms.
(C) NO CONTRAVENTION: The Company's entry into, and performance and
compliance with its obligations under, this Supplemental Indenture and the
carrying out of the transactions contemplated by this Supplemental Indenture:
(i) do not contravene any law, directive, judgment or order to which
it is subject, including, without limitation, the Order and the
Injunction;
(ii) do not contravene its memorandum or articles of association or
other constitutional documents; and
(iii) do not breach in any material respect any agreement or the
terms of any consent to which it is a party or which is binding upon it or
any of its assets;
(D) NO AUTHORISATIONS FOR TRUSTEE: No authorisation, approval or consent
of, and no filing or registration with or application to, any governmental or
regulatory authority, agency or
Exh. T3C - Supp.-4
body of the United States of America or the State of New York is required in
connection with the execution and delivery of this Supplemental Indenture by the
Trustee, or in connection with the authentication by the Trustee of any Amended
and Restated Initial Securities or Amended and Restated Exchange Securities.
(E) COURT SANCTIONS: The Order and the Injunction as originally issued
have not been modified and remain in full force and effect; and the Scheme of
Arrangement, as sanctioned by the Order and by the Injunction, confers authority
upon the Trustee to execute and deliver this Supplemental Indenture in
accordance with the Scheme of Arrangement.
ARTICLE FOUR
MISCELLANEOUS
Section 4.1. Definitions.
Except as otherwise expressly provided or unless the context otherwise
requires, all terms used herein which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Section 4.2. Confirmation of the Indenture.
The Indenture, as supplemented and amended by this Supplemental Indenture,
is in all respects ratified and confirmed by the Company, and the Indenture,
this Supplemental Indenture and all indentures supplemental thereto shall be
read, taken and construed as one and the same instrument.
Section 4.3. Severability.
Wherever possible, each provision of this Supplemental Indenture shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Supplemental Indenture shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Supplemental Indenture.
Section 4.4. Governing Law.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the state of New York but without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
Section 4.5. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original, but such counterparts shall together
constitute one and the same instrument.
Exh. T3C - Supp.-5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed and attested, all as of the day and year first above
written.
TEXON INTERNATIONAL LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name:
Title:
Attest: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name:
Title:
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name:
Title:
Attest: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name:
Title:
Exh. T3C - Supp.-6
SCHEDULE "A"
The Indenture is amended as described below:
1. Global Amendments. The Indenture, including the cover page and all
exhibits thereto, are amended by the deletion in their entirety of all
references to:
(a) "Texon International plc" and the substitution therefor of "Texon
International Limited";
(b) "public limited company" and the substitution therefor of "private
limited company";
(c) "2008" and the substitution therefor of "2010"; and
(d) "DM 245.0 million" and "DM 245,000,000" and the substitution
therefor of "DM 61.25 million ((euro)31,316,627)" and "DM 61,250,000
((euro)31,316,627)", respectively.
2. Amendments to Section 1.01 (Definitions). Section 1.01 of the Indenture is
amended:
(a) by the deletion in their entirety of the definitions of "Euroclear
Operator", "Permitted Holders" and "Securities" and the substitution
therefor of the following definitions, respectively:
""Euroclear Operator" means Euroclear Bank S.A./N.V., as
operator of the Euroclear system."
""Permitted Holders" means MatlinPatterson Global
Opportunities Partners L.P., any of its Affiliates, and any limited
partnership, investment trust or investment fund which is managed or
advised by MatlinPatterson Global Opportunities Partners L.P. or any
of its Affiliates; and any Person acting in the capacity of an
underwriter in connection with a public or private offering of the
Company's Capital Stock."
""Securities" means, collectively, the Initial Securities and,
when and if issued as provided for in the Exchange and Registration
Rights Agreement, the Exchange Securities, in each case comprising
in aggregate the DM 61,250,000 ((euro)31,316,627) Senior Notes due
2010 constituted by this Indenture and for the time being
outstanding."
(b) by the deletion in their entirety of the definitions of "Cedel",
"Credit Agreement" and "Revolving Facilities" (and all references
thereto) and the substitution therefor of the following definitions,
respectively:
""Clearstream" means Clearstream Banking, societe anonyme."
""Facilities Agreement" means the Facilities Agreement dated
on or about the Amendment Date, as amended, waived or otherwise
modified from time to time, by and among the Company, United Texon
Limited and Barclays Bank PLC (except to the extent that any such
amendment, waiver or other modification thereto would be prohibited
by the terms of this Indenture, unless otherwise agreed to by the
Holders of at least a majority in aggregate principal amount of
Securities at the time outstanding)."
""Facilities" means all facilities provided under the
Facilities Agreement."
Exh. T3C - Supp.-7
(c) by the insertion of the following new definition:
""Amendment Date" means the date of the Supplemental Indenture
between the Company and the Trustee, being November 22, 2002."
3. Amendment to Section 2.03 (Registrar and Paying Agent). Section 2.03 of
the Indenture is amended by the insertion at the end of this section of
the following new sentence:
"The Company shall use its reasonable endeavours to procure
that the Securities are and remain listed on the Luxembourg Stock
Exchange."
and the heading to Section 2.03 and all references thereto shall be
deleted and replaced with "Registrar and Paying Agent; Listing of
Securities."
4. Amendment to Section 4.02 (Maintenance of Office or Agency; Reports to
Holders). Paragraph (b) of Section 4.02 of the Indenture is deleted in its
entirety and replaced with:
"(b) Where so required by the rules and regulations of the
Commission, the Company shall furnish to the holders of the
Securities (i) all annual and quarterly financial information
required to be contained in a filing with the Commission (except
that quarterly financial information need not contain any
reconciliation to U.S. generally accepted accounting principles);
provided, however, that (x) such quarterly financial information may
be prepared in accordance with generally accepted accounting
principles in the United Kingdom, shall be furnished within 60 days
following the end of each fiscal quarter of the Company and may be
provided in a report on Form 6-K, and (y) such annual financial
information shall be furnished within 120 days following the end of
the fiscal year of the Company. In addition, where so required by
the rules and regulations of the Commission, the Company shall file
a copy of all such information with the Commission for public
availability (unless the Commission will not accept such a filing).
In addition, the Company shall furnish to the Holders of the
Securities such financial information as the Company is required by
law to deliver to the registrar of companies for England and Wales,
and the Company shall furnish to the Holders of the Securities and
to prospective investors, upon the requests of such Holders, any
information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act so long as the Securities are not freely
transferable under the Act by Persons not "affiliates" under the
Securities Act. The Company shall also comply with the provisions of
TIA Section 314(a).
(c) Whether or not required by any applicable laws, but
provided that any or all of the Securities are outstanding, the
Company shall maintain a website and shall publish on that website,
in a manner which is readily accessible to the Holders of the
Securities, its consolidated financial statements (including its
consolidated balance sheet, consolidated income statement and
consolidated statement of cash flows) prepared in accordance with
generally accepted accounting principles then in effect in the
United Kingdom (i) within 45 days following the end of each fiscal
quarter of the Company, and (ii) within 90 days following the end of
the fiscal year of the Company."
5. Amendment to Section 4.03 (Limitation on Indebtedness). Subparagraph
(b)(i) of Section 4.03 of the Indenture is deleted in its entirety and
replaced with:
Exh. T3C - Supp.-8
"(i) Indebtedness (x) of United Texon Limited and Restricted
Subsidiaries under the Facilities (as the same may be amended from
time to time without increasing the committed amount available or
outstanding, except as otherwise permitted by this Section) and (y)
of the Company and Restricted Subsidiaries under other credit
agreements in an aggregate principal amount at any time outstanding
for both (x) and (y) not to exceed the greater of (A) (Pounds) 15.0
million, less any repayments and commitment reductions made pursuant
to clause (a)(iii)(A) of Section 4.06, and (B) the Borrowing Base at
the time such Indebtedness is Incurred;"
6. Amendments to Exhibit A. The first paragraph of clause 6 (Optional
Redemption) of Exhibit A to the Indenture and each outstanding Security,
including the table thereto, is deleted in its entirety and replaced with:
"The Securities will be redeemable, at the Company's option,
in whole or in part, at any time on or after the Amendment Date and
prior to maturity. On and after that date, the Company may redeem
the Securities in whole at any time or in part from time to time at
the following redemption prices (expressed in percentages of
principal amount), plus accrued interest and Additional Amounts, if
any, to the redemption date (and in the case of Definitive
Securities, subject to the right of Holders of record on the
relevant record date to receive interest due on the related interest
payment date and Additional Amounts, if any, in respect thereof), if
redeemed during the 12-month period commencing February 1 of the
years set forth below:
Redemption
Year Price
----------------------------------------- ----------
2002 ................................... 105.000%
2003 ................................... 105.000%
2004 ................................... 103.333%
2005 ................................... 101.667%
2006 and thereafter ..................... 100.000%"
7. Amendments to Exhibit B. The first paragraph of clause 6 (Optional
Redemption) of Exhibit B to the Indenture and each outstanding Security,
including the table thereto, is deleted in its entirety and replaced with:
"The Securities will be redeemable, at the Company's option, in
whole or in part, at any time on or after Amendment Date and prior to
maturity. On and after that date, the Company may redeem the Securities in
whole at any time or in part from time to time at the following redemption
prices (expressed in percentages of principal amount), plus accrued
interest and Additional Amounts, if any, to the redemption date (and in
the case of Definitive Securities, subject to the right of Holders of
record on the relevant record date to receive interest due on the related
interest payment date and Additional Amounts, if any, in respect thereof),
if redeemed during the 12-month period commencing February 1 of the years
set forth below:
Exh. T3C - Supp.-9
Redemption
Year Price
------------------------------------------ ----------
2002 .................................... 105.000%
2003 .................................... 105.000%
2004 .................................... 103.333%
2005 .................................... 101.667%
2006 and thereafter ...................... 100.000%"
Exh. T3C - Supp.-10