EXECUTION COPY
SUPPLEMENTAL INDENTURE
dated as of May 25, 2006
with respect to the
INDENTURE
dated as of May 1, 1998
among
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., INC., as Issuer,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
as Guarantor, and
WILMINGTON TRUST COMPANY
(as successor to The Chase Manhattan Bank)
as Trustee
SUPPLEMENTAL INDENTURE dated as of May 25, 2006 (this "Supplemental
Indenture") among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., INC., a Delaware corporation (the
"Company"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION, a company incorporated under the laws
of the British Virgin Islands, as guarantor (the "Guarantor"), and Wilmington
Trust Company (as successor to The Chase Manhattan Bank), as trustee (the
"Trustee") for the securities issued under the Indenture dated as of May 1,
1998 among the Company, the Guarantor and the Trustee (as amended, supplemented
or otherwise modified from time to time, the "Indenture").
RECITALS
A. Pursuant to and in accordance with the terms of the Indenture, the
Company established and issued its 9.0% Senior Bonds due 2031 (the "2031 Senior
Bonds").
B. In accordance with Section 902 of the Indenture, the Company has
obtained the consent of the holders of a majority in aggregate principal amount
of the 2031 Senior Bonds outstanding to the amendments to the Indenture set
forth in this Supplemental Indenture.
NOW, THEREFORE, in consideration of the premises herein contained and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, it is mutually covenanted and agreed as follows:
AGREEMENTS
SECTION 1. Defined Terms. Terms defined in the Indenture and not
otherwise defined herein are used herein as therein defined.
SECTION 2. Amendments to Indentures. The following amendments to the
Indenture shall be effective solely with respect to the 2031 Senior Bonds as
specified herein:
(a) Effective as of the General Amendment Effective Time (as
defined in Section 12 below), the following Sections of the Indenture,
and any corresponding provisions in the Securities, hereby are deleted
in their entirety and replaced with "Intentionally Omitted.":
Existing Section Number Caption
----------------------- -------
Section 1005............................. Maintenance of Properties
Section 1006............................. Payment of Taxes and Other Claims
Section 1007............................. Limitation upon Liens
Section 1008............................. Limitation upon Sale and Leaseback Transactions
Section 1009............................. Restriction on Indebtedness of Restricted Subsidiaries
Section 1010............................. Defeasance of Certain Obligations
Section 1011............................. Statements by Officers as to Default
Section 501(4), 501(5), 501(6), 501(7)... Events of Default
(b) Effective as of the General Amendment Effective Time,
Section 704 of the Indenture is hereby amended and restated in its
entirety to read as follows: "The Guarantor shall at all times comply
with TIA ss.314(a)."
(c) Effective as of the General Amendment Effective Time,
Section 801 of the Indenture is hereby amended and restated in its
entirety to read as follows: "The Company shall not consolidate with
or merge into any other corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, and
the Company shall not permit any Person to consolidate with or merge
into the Company or convey, transfer or lease its properties and
assets substantially as an entirety to the Company, unless in case the
Company shall consolidate with or merge into another corporation or
convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties
and assets of the Company substantially as an entirety shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed."
(d) Effective as of the General Amendment Effective Time,
Section 1004 of the Indenture is hereby amended and restated in its
entirety to read as follows: "Subject to Article Eight, each of the
Company and the Guarantor will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate
existence."
(e) Effective as of the Special Amendment Effective Time (as
defined in Section 12 below), the Indenture is hereby amended to add
the following new Section 1502:
Section 1502. Use of Cash for Offers
Notwithstanding anything to the contrary set forth in this
Indenture, the Company and its Affiliates shall be permitted
to (i) use any cash, or any distribution, loan or other
payment of cash by the Guarantor or any of its Subsidiaries,
to pay all amounts payable for Securities accepted for
payment pursuant to the cash tender offers made for
Securities in accordance with Section 5.15 of that certain
Agreement and Plan of Merger dated December 23, 2005, among
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation, Elmira 2 B.V. (f/k/a BMD Venture
Capital B.V.) and Elmira (BVI) Unlimited (including but not
limited to accrued and unpaid interest from the last interest
payment date of the applicable Securities to, but not
including, the early settlement date or the final settlement
date, as applicable, of the applicable tender offer and all
fees and expenses payable in connection with such tender
offers) and (ii) in connection with clause (i), make any
distribution, loan or other payment.
(f) Effective as of the General Amendment Effective Time,
Section 101 of the Indenture is hereby amended to delete in their
entirety all terms and their respective definitions for which all
references are eliminated in the Indenture as a result of the
amendments set forth in this Supplemental Indenture.
SECTION 3. Indenture Ratified. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed, and all the terms,
provisions and conditions thereof shall be and remain in full force and effect.
SECTION 4. 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 but one and the same instrument.
SECTION 5. Supplemental Indenture is a Supplement to Indenture. This
Supplemental Indenture is executed as and shall constitute an Indenture
supplemental to the Indenture solely with respect to the 2031 Senior Bonds and
shall be construed in connection with and as part of the Indenture for all
purposes with respect to the 2031 Senior Bonds, and every Holder of 2031 Senior
Bonds heretofore or hereafter authenticated and delivered under the Indenture
shall be bound by the Indenture as amended by this Supplemental Indenture.
SECTION 6. Governing Law. This Supplemental Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York.
SECTION 7. References to Supplemental Indenture. Any and all notices,
requests, certificates and other instruments executed and delivered with
respect to the 2031 Senior Bonds after the execution and delivery of this
Supplemental Indenture may refer to the Indenture without making specific
reference to this Supplemental Indenture, but nevertheless all such references
shall include this Supplemental Indenture unless the context otherwise
requires.
SECTION 8. Effect of This Supplemental Indenture. Upon execution
hereof, the Indenture shall be deemed to be modified as herein provided with
respect to the 2031 Senior Bonds, but except as modified hereby, the Indenture
shall continue in full force and effect. The Indenture as modified hereby shall
be read, taken and construed as one and the same instrument with respect to the
2031 Senior Bonds. Nothing in this Supplemental Indenture shall be deemed to
amend or modify any provision of the Indenture as it relates to the 6.85% Notes
due 2008 that were issued under the Indenture.
SECTION 9. Severability. In the event that any provisions of this
Supplemental Indenture shall be invalid, illegal or unenforceable, in any
respect or for any reason, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby, it
being intended that all of the provisions hereof shall be enforceable to the
full extent permitted by law.
SECTION 10. Trust Indenture Act. If any provisions hereof limit,
qualify or conflict with any provisions of the Trust Indenture Act of 1939
required under the Trust Indenture Act of 1939 to be a part of and govern this
Supplemental Indenture, the provisions of the Trust Indenture Act of 1939 shall
control. If any provision hereof modifies or excludes any provision of the
Trust Indenture Act of 1939 that pursuant to the Trust Indenture Act of 1939
may be so modified or excluded, the provisions of the Trust Indenture Act of
1939 as so modified or excluded hereby shall apply.
SECTION 11. Trustee Not Responsible for Recitals. The recitals
contained herein shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Supplemental
Indenture.
SECTION 12. Effectiveness. This Supplemental Indenture shall become
effective upon execution by the Company, the Guarantor and the Trustee. As used
herein, (i) the "General Amendment Effective Time" shall mean the time and date
that the Company shall have accepted for payment the 2031 Senior Bonds tendered
and not validly withdrawn pursuant to the Company's Offer to Purchase and
Consent Solicitation Statement dated April 7, 2006, as amended (the "Offer to
Purchase"), and (ii) the "Special Amendment Effective Time" shall mean 9 a.m.
London (U.K.) time on the date that the Company shall have accepted for payment
the 2031 Senior Bonds tendered and not validly withdrawn pursuant to the Offer
to Purchase. If the Merger Agreement is terminated pursuant to the terms
thereof prior to the General Amendment Effective Time, then the terms of this
Supplemental Indenture shall be null and void on the date that is 90 days
following the date of such termination.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Supplemental Indenture to be duly executed on its behalf by its duly authorized
officer as of the day and year first above written.
THE COMPANY:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., INC.
By: /s/ ▇▇▇▇▇▇ Scirocco
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Name: ▇▇▇▇▇▇ Scirocco
Title: Chief Financial Officer,
Executive Vice President
and Treasurer
THE GUARANTOR:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇. ▇▇▇▇▇▇▇
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Name: Matthijs ▇▇▇▇▇▇▇
Title: Managing Director
THE TRUSTEE:
WILMINGTON TRUST COMPANY, as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President