EXECUTION COPY
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PREEM HOLDINGS AB (PUBL)
as Issuer,
and
BANKERS TRUST COMPANY
as Trustee, Registrar and
Paying Agent,
and
DEUTSCHE BANK AG LONDON,
as Principal Paying Agent and Transfer Agent
----------------------------
INDENTURE
Dated as of April 10, 2001
----------------------------
10-5/8% Senior Secured Notes due 2011
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............................................................1
SECTION 1.1 Definitions........................................................................1
SECTION 1.2 Incorporation by Reference of TIA.................................................29
SECTION 1.3 Rules of Construction.............................................................30
ARTICLE II THE NOTES.............................................................................................30
SECTION 2.1 Form and Dating...................................................................30
SECTION 2.2 Execution and Authentication......................................................31
SECTION 2.3 Registrar and Paying Agent........................................................33
SECTION 2.4 Paying Agent To Hold Assets in Trust..............................................34
SECTION 2.5 List of Holders...................................................................34
SECTION 2.6 Book-Entry Provisions for Global Notes............................................34
SECTION 2.7 Registration of Transfer and Exchange.............................................35
SECTION 2.8 Replacement Notes.................................................................40
SECTION 2.9 Outstanding Notes.................................................................40
SECTION 2.10 Treasury Notes....................................................................41
SECTION 2.11 Temporary Notes...................................................................41
SECTION 2.12 Cancellation......................................................................41
SECTION 2.13 Defaulted Interest................................................................42
SECTION 2.14 CUSIP, ISIN and Common Code Numbers...............................................42
SECTION 2.15 Deposit of Moneys.................................................................42
SECTION 2.16 Certain Matters Relating to Global Notes..........................................43
ARTICLE III REDEMPTION...........................................................................................43
SECTION 3.1 Optional Redemption...............................................................43
SECTION 3.2 Notices to Trustee................................................................43
SECTION 3.3 Selection of Notes to Be Redeemed.................................................43
SECTION 3.4 Notice of Redemption..............................................................44
SECTION 3.5 Effect of Notice of Redemption....................................................45
SECTION 3.6 Deposit of Redemption Price.......................................................45
SECTION 3.7 Notes Redeemed in Part............................................................46
ARTICLE IV COVENANTS.............................................................................................46
SECTION 4.1 Payment of Notes..................................................................46
SECTION 4.2 Maintenance of Office or Agency...................................................46
SECTION 4.3 Limitation on Indebtedness........................................................47
SECTION 4.4 Limitation on Restricted Payments.................................................49
SECTION 4.5 Corporate Existence...............................................................53
SECTION 4.6 Payment of Taxes and Other Claims.................................................53
SECTION 4.7 Maintenance of Properties and Insurance...........................................53
SECTION 4.8 Limitation on Shareholder Loans...................................................54
SECTION 4.9 Compliance with Laws..............................................................54
SECTION 4.10 Limitation on Liens...............................................................54
SECTION 4.11 Waiver of Stay; Extension or Usury Laws...........................................54
SECTION 4.12 Limitation on Sale/Leaseback Transactions.........................................55
SECTION 4.13 Limitation on Restrictions on Distributions from Restricted Subsidiaries..........55
SECTION 4.14 Limitation on Sales of Assets and Subsidiary Stock................................57
SECTION 4.15 Limitation on Affiliate Transactions..............................................60
SECTION 4.16 Limitation on Sales of Capital Stock of Restricted Subsidiaries...................61
SECTION 4.17 SEC Reports.......................................................................61
SECTION 4.18 Limitation on Lines of Business...................................................62
SECTION 4.19 Change of Control.................................................................62
SECTION 4.20 Additional Amounts................................................................64
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges...................................64
SECTION 4.22 Compliance Certificate; Notice of Default.........................................65
SECTION 4.23 Impairment of Security Interest...................................................65
SECTION 4.24 Security Interest.................................................................66
SECTION 4.25 Limitations on the Issuer and Preem...............................................66
SECTION 4.26 Limitation on Investment Company Activities.......................................66
ARTICLE V SUCCESSOR CORPORATION..................................................................................66
SECTION 5.1 Consolidation, Merger, and Sale of Assets.........................................66
SECTION 5.2 Successor Corporation Substituted.................................................66
ARTICLE VI DEFAULT AND REMEDIES..................................................................................67
SECTION 6.1 Events of Default.................................................................67
SECTION 6.2 Acceleration......................................................................71
SECTION 6.3 Other Remedies....................................................................71
SECTION 6.4 The Trustee May Enforce Claims Without Possession of Securities...................71
SECTION 6.5 Rights and Remedies Cumulative....................................................71
SECTION 6.6 Delay or Omission Not Waiver......................................................72
SECTION 6.7 Waiver of Past Defaults...........................................................72
SECTION 6.8 Control by Majority...............................................................72
SECTION 6.9 Limitation on Suits...............................................................72
SECTION 6.10 Rights of Holders to Receive Payment..............................................73
SECTION 6.11 Collection Suit by Trustee........................................................73
SECTION 6.12 Trustee May File Proofs of Claim..................................................73
SECTION 6.13 Priorities........................................................................74
SECTION 6.14 Restoration of Rights and Remedies................................................74
SECTION 6.15 Undertaking for Costs.............................................................74
SECTION 6.16 Compliance Certificate; Notices of Default........................................74
ARTICLE VII TRUSTEE..............................................................................................75
SECTION 7.1 Duties of Trustee.................................................................75
SECTION 7.2 Rights of Trustee.................................................................76
SECTION 7.3 Individual Rights of Trustee......................................................77
SECTION 7.4 Trustee's Disclaimer..............................................................77
SECTION 7.5 Notice of Default.................................................................77
SECTION 7.6 Report by Trustee to Holders......................................................78
SECTION 7.7 Compensation and Indemnity........................................................78
SECTION 7.8 Replacement of Trustee............................................................79
SECTION 7.9 Successor Trustee by Merger, ETC..................................................80
SECTION 7.10 Corporate Trustee Required; Eligibility...........................................80
SECTION 7.11 Disqualification; Conflicting Interests...........................................81
SECTION 7.12 Preferential Collection of Claims Against Company.................................81
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE.............................................................81
SECTION 8.1 Option to Effect Legal Defeasance or Covenant Defeasance..........................81
SECTION 8.2 Legal Defeasance and Discharge....................................................81
SECTION 8.3 Covenant Defeasance...............................................................81
SECTION 8.4 Conditions to Legal or Covenant Defeasance........................................82
SECTION 8.5 Satisfaction and Discharge of Indenture...........................................84
SECTION 8.6 Survival of Certain Obligations...................................................84
SECTION 8.7 Acknowledgment of Discharge by Trustee............................................84
SECTION 8.8 Application of Trust Moneys.......................................................84
SECTION 8.9 Repayment to the Company; Unclaimed Money.........................................85
SECTION 8.10 Reinstatement.....................................................................85
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS...................................................................86
SECTION 9.1 Without Consent of Holders of Notes...............................................86
SECTION 9.2 With Consent of Holders of Notes..................................................87
SECTION 9.3 Compliance with TIA...............................................................88
SECTION 9.4 Revocation and Effect of Consents.................................................88
SECTION 9.5 Notation on or Exchange of Notes..................................................88
SECTION 9.6 Trustee to Sign Amendments, etc...................................................89
ARTICLE X SECURITY...............................................................................................89
SECTION 10.1 Security..........................................................................89
SECTION 10.2 Recording and Opinions............................................................89
SECTION 10.3 Release of Collateral.............................................................90
SECTION 10.4 Certificates of the Company.......................................................91
SECTION 10.5 Authorization of Actions To Be Taken by the Trustee...............................91
SECTION 10.6 Authorization of Receipt of Funds by the Trustee Under the Security Documents.....91
SECTION 10.7 Termination of Security Interest..................................................92
ARTICLE XI MISCELLANEOUS.........................................................................................92
SECTION 11.1 TIA Controls......................................................................92
SECTION 11.2 Notices...........................................................................92
SECTION 11.3 Communications by Holders with Other Holders......................................94
SECTION 11.4 Certificate and Opinion as to Conditions Precedent................................94
SECTION 11.5 Statements Required in Certificate or Opinion.....................................95
SECTION 11.6 Rules by Trustee, Paying Agent (Including Principal Paying Agent), Registrar......95
SECTION 11.7 Legal Holidays....................................................................95
SECTION 11.8 Governing Law.....................................................................95
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent for Service......................95
SECTION 11.10 No Adverse Interpretation of Other Agreements.....................................96
SECTION 11.11 No Personal Liability of Directors, Officers, Employees, Incorporators or
Stockholders....................................................................96
SECTION 11.12 Currency Indemnity................................................................96
SECTION 11.13 Successors........................................................................97
SECTION 11.14 Counterpart Originals.............................................................97
SECTION 11.15 Severability......................................................................97
SECTION 11.16 Table of Contents, Headings, etc..................................................97
EXHIBITS
Exhibit A - Form of Initial Global Note
Exhibit B - Form of Initial Definitive Note
Exhibit C - Form of Exchange Global Note
Exhibit D - Form of Exchange Definitive Note
Exhibit E - Form of Transfer Certificate for Transfer from Rule 144A Global
Note to Regulation S Global Note
Exhibit F - Form of Transfer Certificate for Transfer from Regulation S
Global Note to Rule 144A Global Note
NOTE: This Table of Contents shall not, for any purpose, be deemed to be part
of this Indenture.
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310 (a)(1)................................................................................. 7.10
(a)(2)................................................................................. 7.10
(a)(3)................................................................................. NA
(a)(4)................................................................................. NA
(a)(5)................................................................................. 7.8; 7.11
(b).................................................................................... 7.8; 7.11
(c).................................................................................... NA
311 (a).................................................................................... 7.12
(b).................................................................................... 7.12
(c).................................................................................... NA
312 (a).................................................................................... 2.5
(b).................................................................................... 11.3
(c).................................................................................... 11.3
313 (a).................................................................................... 7.6
(b)(1)................................................................................. 11.3
(b)(2)................................................................................. 7.6
(c).................................................................................... 7.6; 11.2
(d).................................................................................... 7.6
314 (a).................................................................................... 4.17; 4.23;
11.2; 11.4
(b).................................................................................... 11.2
(c)(1)................................................................................. 7.2; 11.4
(c)(2)................................................................................. 7.2; 11.4
(c)(3)................................................................................. NA
(d).................................................................................... 11.3;11.4; 11.5
(e).................................................................................... 11.5
(f).................................................................................... NA
315 (a).................................................................................... 7.1(c)
(b).................................................................................... 7.5; 11.2
(c).................................................................................... 7.1(a)
(d).................................................................................... 6.8; 7.1(c)
(e).................................................................................... 6.15
316 (a)(last sentence)..................................................................... 2.9
(a)(1)(A).............................................................................. 6.8
(a)(1)(B).............................................................................. 6.7
(a)(2)................................................................................. NA
(b).................................................................................... 6.10
317 (a)(1)................................................................................. 6.11
(a)(2)................................................................................. 6.12
(b).................................................................................... 2.4
318 (a).................................................................................... 11.1
(c).................................................................................... 11.1
------------------------
NA means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
1
INDENTURE, dated as of April 10, 2001, between PREEM HOLDINGS AB
(PUBL), a company organized under the laws of The Kingdom of Sweden, and having
its corporate seat in Stockholm, Sweden (the "COMPANY"), Bankers Trust Company,
a banking corporation organized under the laws of the State of
New York, as
Trustee, Registrar and Paying Agent, and Deutsche Bank AG London as Principal
Paying Agent and transfer agent.
The Company has duly authorized the creation and issuance of its (i)
10-5/8% Senior Secured Notes due 2011 issued on the date hereof (the "ORIGINAL
NOTES"), (ii) Additional Notes (as defined herein) that may be issued on any
Issue Date (all such notes referred to in clauses (i) and (ii) being referred to
as the "Initial Notes") and (iii) 10-5/8% Senior Secured Notes due 2011 to be
issued in exchange for Initial Notes pursuant to a Registration Rights Agreement
(the "EXCHANGE NOTES" and, together with the Initial Notes, the "NOTES"); and,
to provide therefor, the Company has duly authorized the execution and delivery
of this Indenture. Except as otherwise provided herein, E 250,000,000 in
aggregate principal amount of Notes shall be initially issued on the date
hereof.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS. For purposes of this Indenture, unless
otherwise specifically indicated herein, the term "consolidated" with respect
to any Person refers to such Person consolidated with its Restricted
Subsidiaries, and excludes from such consolidation any Unrestricted
Subsidiary as if such Unrestricted Subsidiary were not an Affiliate of such
Person. In addition, for purposes of the following definitions and this
Indenture generally, all calculations and determinations shall be made in
accordance with Swedish GAAP and shall be based upon the consolidated
financial statements of the Company and its subsidiaries prepared in
accordance with Swedish GAAP. As used in this Indenture, the following terms
shall have the following meanings:
"Acquired Debt" means, with respect to any specified Person: (1)
Indebtedness of any other Person existing at the time such other Person is
merged, consolidated, amalgamated or otherwise combined with or into, or becomes
a Subsidiary of such specified Person, whether or not such Indebtedness is
incurred in connection with, or in contemplation of, such other Person merging,
consolidating, amalgamating or combining with or into, or becoming a Subsidiary
of, such specified Person; and (2) Indebtedness secured by a Lien encumbering
any asset acquired by such specified Person.
"Additional Amounts" shall have the meaning set forth in Section 4.20
hereof.
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"Additional Assets" means:
(1) any property or assets (other than Indebtedness and Capital
Stock) to be used by the Company or a Restricted Subsidiary in a
Related Business;
(2) 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 a Restricted Subsidiary of the Company; or
(3) Capital Stock constituting a minority interest in any Person
that at such time is a Restricted Subsidiary of the Company;
PROVIDED, HOWEVER, that, in the case of clauses (2) and (3), such Restricted
Subsidiary is primarily engaged in a Related Business.
"Additional Notes" means additional principal amounts of 10-5/8% Senior
Secured Notes due 2011 issued under the terms of this Indenture after the
Closing Date.
"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;
PROVIDED that beneficial ownership of 10% or more of the Voting Stock of a
Person shall be deemed to be control.
"Affiliate Transaction" shall have the meaning set forth in Section
4.15.
"Agent" means the Principal Paying Agent, any Registrar, Paying Agent,
Authenticating Agent or co-Registrar.
"Agent Members" shall have the meaning set forth in Section 2.16.
"Asset Disposition" means any direct or indirect sale, lease (other
than an operating lease entered into in the ordinary course of business),
transfer, issuance or other disposition, or a series of related sales, leases,
transfers, issuances or dispositions that are part of a common plan, of shares
of Capital Stock of a 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. Notwithstanding the preceding, the following items shall not be
deemed to be Asset Dispositions:
(1) a disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Wholly-Owned Subsidiary of
either thereof;
(2) the sale of Cash Equivalents in the ordinary course of
business;
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(3) a disposition of inventory in the ordinary course of business;
(4) a disposition of obsolete or worn out equipment or equipment
that is no longer useful in the conduct of the business of the Company
and its Restricted Subsidiaries and that is disposed of in each case in
the ordinary course of business;
(5) consolidations, mergers, conveyances, transfers or leases
that do not constitute a Default under Section 6.1(3) hereof;
(6) for purposes of Section 4.14 hereof only, the making of a
Permitted Investment or a disposition subject to Section 4.4 hereof;
(7) an issuance of Capital Stock by a Restricted Subsidiary of
the Company to the Company or a Wholly-Owned Subsidiary;
(8) dispositions of assets with an aggregate fair market value since
the Closing Date of less than E10.0 million; and
(9) dispositions in connection with Permitted Liens.
"Asset Sale Offer" shall have the meaning set forth in Section 4.14.
"Asset Sale Offer Amount" shall have the meaning set forth in Section
4.14.
"Asset Sale Offer Period" shall have the meaning set forth in Section
4.14.
"Attributable Indebtedness" 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 Notes, compounded semi-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).
"Authenticating Agent" shall have the meaning set forth in Section 2.2.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing:
(1) 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 or Indebtedness multiplied by the
amount of such payment, by
(2) the sum of all such payments.
"Bankruptcy Law" means (i) for purposes of the Company, any bankruptcy,
insolvency or other similar statute (including, without limitation, the Swedish
Bankruptcy Act ("SW. KONKURSLAGEN"), the Swedish Corporate Reorganization Act
("FORETAGSREKONSTRUKTION ENLIGT LAGEN OM FORETAGSREKONSTRUKTION") and any
similar statute), regulation or provision of any
4
jurisdiction in which the Company is organized or conducting business and
(ii) for purposes of the Trustee and the Holders, Title 11, U.S. Code or any
similar United States Federal, state or foreign law for the relief of
creditors.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof or any equivalent governing
body charged under the laws of the jurisdiction of such Person with equivalent
powers and responsibilities to supervise and direct the affairs of such person.
"Board Resolution" means a duly authorized resolution of the Board of
Directors certified by an Officer and delivered to the Trustee.
"Borrowing Base" means, as of the date of determination, an amount
equal to:
(1) 90% of the book value of all accounts receivable owned by the
Company and its Restricted Subsidiaries that are not more than 90 days
past due; plus
(2) 90% of the book value of all inventory owned by the Company and its
Restricted Subsidiaries, or scheduled for delivery against letters of
credit issued under Credit Facilities,
in each case determined in accordance with Swedish GAAP, consistent with past
practice (except to the extent of changes in Swedish GAAP). To the extent that
information is not available as to the amount of accounts receivable or
inventory as of a specific date, the Company may rely on the most recent
available management accounts (unless the Company has reason to believe that
such management accounts overstate the amount of accounts receivable or
inventory as of the date of determination, in which case the amounts shall be
such lesser amounts as the Company determines do not overstate such items).
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banking institutions are authorized or required by law to
close in
New York City, Stockholm or London.
"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 Obligations" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with Swedish GAAP, and the amount of Indebtedness
represented by such obligation will be the capitalized amount of such obligation
at the time any determination thereof is to be made determined in accordance
with Swedish GAAP, and the Stated Maturity thereof will be the date of the last
payment of rent or any other amount due under such lease prior to the first date
such lease may be terminated without penalty.
"Cash Equivalents" means:
5
(1) securities issued or directly and fully guaranteed or insured by
the United States Government or The Kingdom of Sweden or any agency or
instrumentality thereof, having maturities of not more than one year
from the date of acquisition;
(2) marketable general obligations issued by any state of the United
States of America or province of The Kingdom of Sweden 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 Group or Xxxxx'x Investors
Service, Inc.;
(3) certificates of deposit, time deposits, Eurocurrency 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 having combined capital and surplus in excess of
$560.0 million;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (1), (2) and
(3) entered into with any bank meeting the qualifications specified in
clause (3), above;
(5) commercial paper rated at the time of acquisition thereof at least
"A-1" or the equivalent thereof by Standard & Poor's Ratings Group or
"P-1" or the equivalent thereof by Xxxxx'x Investors Service, Inc., or
carrying an equivalent rating by a nationally recognized rating agency
in the United States, if both of the two named rating agencies cease
publishing ratings of investments, and in either case maturing within
one year after the date of acquisition thereof; and
(6) interests in any money market fund that invests solely in
instruments of the type specified in clauses (1) through (5), above.
"Change of Control" " means:
(1) 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 Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of the Company (or its successor
by merger, consolidation or purchase of all or substantially all of its
assets); and (B) the Permitted Holders "beneficially own" (for purposes
of Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of the Company (or its successor by merger,
consolidation or purchase of all or substantially all of its assets)
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 of the Company or such successor, as
the case may be (for the purposes of this clause, a person shall be
deemed to beneficially own any voting Capital Stock of a specified
entity held by an entity, if such other person beneficially owns (for
purposes of Rules
6
13d-3 and 13d-5 under the Exchange Act), directly or indirectly,
more than 35% of the voting power of the voting Capital Stock of
such entity and no other person beneficially owns (for purposes of
Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate a greater percentage of the voting
power of the voting Capital Stock of such entity or has 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
entity); PROVIDED that, a Change of Control shall not be deemed to have
occurred hereunder if, upon and after the death of Xxxxxxxx Xxxxxxx
Al-Amoudi, (A) beneficial ownership of his Voting Stock of the Company
is transferred to his spouse or any of his descendants (including any
trust controlled by and maintained for the sole benefit of such
spouse or descendant) or the estate of any of the foregoing and (B)
individuals who at the time of his death constituted the Board of
Directors of the Company continue to constitute a majority thereof,
and individuals who at the time of his death constituted the Board
of Directors of Corral continue to constitute a majority thereof,
subject to clause (a) and not clause (b) of the parenthetical set
forth in paragraph (2) below; or
(2) 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 (a) whose election by
such Board of Directors or whose nomination for election by the
shareholders of the Company, as the case may be, was approved by a
vote of at least a majority of 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
and (b) who are designees of the Permitted Holders or were nominated
or elected by such Permitted Holders or any of their designees) cease
for any reason to constitute a majority of the Board of Directors of
the Company then in office; or
(3) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company
and its Restricted Subsidiaries taken as a whole to any "person" (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act)
other than a Permitted Holder; or
(4) the adoption by the stockholders or Board of Directors of the
Company, as the case may be, of a plan or proposal for the liquidation
or dissolution of the Company.
"Change of Control Offer" shall have the meaning set forth in Section
4.19.
"Change of Control Payment" shall have the meaning set forth in Section
4.19.
"Change of Control Payment Date" shall have the meaning set forth in
Section 4.19.
"Clearing Agency" means one or more of Euroclear, Clearstream Banking,
or the successor of either of them, in each case acting directly, or through a
custodian, nominee or depository, as registered Holder of a Global Note.
"Clearstream Banking" means Clearstream Banking, SOCIETE ANONYME.
"Closing Date" means the date of this Indenture.
7
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Collateral" means the collateral that secures the obligations under
the Notes pursuant to the Security Documents.
"Commission" means the United States Securities and Exchange
Commission, or any successor entity thereof from time to time.
"Common Depositary" means the common depositary for Euroclear and
Clearstream Banking, or its nominee.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Order" means a written order or request signed in the name of
the Company by two Officers of the Company, one of whom must be the President,
the Chief Financial Officer or the Finance Director of the Company or any other
Officer so authorized and delivered to the Trustee.
"Consolidated Coverage Ratio" means as of any date of determination
with respect to any Person, the ratio of (i) the aggregate amount of
Consolidated EBITDA of such Person for the period of the most recent four
consecutive fiscal quarters ending prior to the date of such determination for
which internal financial statements are in existence to (ii) Consolidated
Interest Expense for such four fiscal quarters (it being agreed and understood
that until the fiscal quarter ending on March 31, 2002, such ratio shall be
calculated on a PRO FORMA basis, to the extent necessary, as if the Company had
acquired the Capital Stock of Preem on the first day of the first quarter
necessary for making such calculation); PROVIDED, HOWEVER, that:
(1) if the Company or any Restricted Subsidiary:
(a) 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,
Consolidated EBITDA and Consolidated Interest Expense for such
period will 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 (except that in
making such computation, the amount of Indebtedness under any
revolving credit facility outstanding on the date of such
calculation will be computed based on (x) the average daily
balance of such Indebtedness during such four fiscal quarters
or such shorter period for which such facility was outstanding
or (y) if such facility was created after the end of such four
fiscal quarters, the average daily balance of such
Indebtedness during the period from the date of creation of
such facility to the date of such calculation) 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; or
8
(b) has repaid, repurchased, defeased or otherwise discharged
any Indebtedness since the beginning of the period or if the
transaction giving rise to the need to calculate the
Consolidated Coverage Ratio involves a discharge of
Indebtedness (in each case other than Indebtedness incurred
under any revolving credit facility unless such Indebtedness
has been permanently repaid and the related commitment
terminated), Consolidated EBITDA and Consolidated Interest
Expense for such period will be calculated after giving effect
on a PRO FORMA basis to such discharge of such Indebtedness,
including with the proceeds of such new Indebtedness, as if
such discharge had occurred on the first day of such period;
(2) if since the beginning of such period the Company or any Restricted
Subsidiary has made any Asset Disposition or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an
Asset Disposition, the Consolidated EBITDA for such period will be
reduced by an amount equal to the Consolidated EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset
Disposition for such period or increased by an amount equal to the
Consolidated EBITDA (if negative) directly attributable thereto for
such period and Consolidated Interest Expense for such period will 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 (including the assumption of such Indebtedness by the
transferee) 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);
(3) if since the beginning of such period the Company or any Restricted
Subsidiary (by merger or otherwise) will have made an Investment in any
Restricted Subsidiary (or any Person which becomes a Restricted
Subsidiary or is merged with or into the Company) 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, division or
line of business, Consolidated EBITDA and Consolidated Interest Expense
for such period will be calculated after giving PRO FORMA effect
thereto (including the Incurrence of any Indebtedness and including PRO
FORMA expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Securities Act) as if such Investment or
acquisition occurred on the first day of such period; and
(4) 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 will
have made any Asset Disposition or any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (2) or
(3), above, if made by the Company or a Restricted Subsidiary during
such period, Consolidated EBITDA and Consolidated Interest Expense for
such period
9
will be calculated after giving PRO FORMA effect thereto as if such
Asset Disposition or Investment occurred on the first day of such
period.
For purposes of this definition, whenever PRO FORMA effect is to be given to an
Investment or acquisition of assets and the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with
any Indebtedness Incurred in connection therewith, the PRO FORMA calculations
will be determined in good faith by a responsible financial or accounting
officer of the Company (including giving PRO FORMA effect to cost reductions
that would be permitted by the Commission to be reflected in PRO FORMA financial
statements included in a registration statement filed with the Commission). If
any Indebtedness bears a floating rate of interest and is being given PRO FORMA
effect, the interest expense on such Indebtedness will 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 in excess
of 12 months).
"Consolidated EBITDA" for any period means, without duplication, the
Consolidated Net Income for such period, plus the following, to the extent
deducted in calculating such Consolidated Net Income:
(1) Consolidated Income Taxes;
(2) Consolidated Interest Expense;
(3) consolidated depreciation expense;
(4) consolidated amortization of intangibles; and
(5) other non-cash charges reducing Consolidated Net Income, including,
without limitation, non-cash charges arising from (A) period end
remeasurement of the Indebtedness evidenced by the Notes and (B)
minority interests (but excluding any non-cash charge to the extent it
represents an accrual of or reserve for cash charges in any future
period or amortization of a prepaid cash expense that was paid in a
prior period not included in the calculation).
Notwithstanding the foregoing, clause (1) and clauses (3) through (5) relating
to amounts of a Restricted Subsidiary of a Person will be added to Consolidated
Net Income to compute Consolidated EBITDA of such Person only to the extent (and
in the same proportion) that the net income of such Subsidiary was included in
calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to that Restricted Subsidiary or its
stockholders.
"Consolidated Income Taxes" means, with respect to any Person for any
period, taxes imposed upon such Person or other payments required to be made by
such Person by any governmental authority which taxes or other payments are
calculated by reference to the income or profits of such Person or such Person
and its Restricted Subsidiaries (to the extent such
10
income or profits were included in computing Consolidated Net Income for such
period), regardless of whether such taxes or payments are required to be
remitted to any governmental authority.
"Consolidated Interest Expense" means, for any period, without
duplication, the total interest expense of the Company and its consolidated
Restricted Subsidiaries, whether paid or accrued plus, to the extent not
included in such interest expense:
(1) interest expense attributable to Capitalized Lease Obligations and
the interest portion of rent expense associated with Attributable
Indebtedness in respect of the relevant lease giving rise thereto,
determined as if such lease were a capitalized lease in accordance with
Swedish GAAP and the interest component of any deferred payment
obligations;
(2) amortization of debt discount;
(3) accrued interest;
(4) non-cash interest expense;
(5) commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers' acceptance financing;
(6) interest paid on any Indebtedness of any other Person as a result
of such Indebtedness being Guaranteed by the Company or any Restricted
Subsidiary;
(7) net costs associated with Hedging Obligations (including
amortization of fees);
(8) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
(9) all dividend payments, whether or not in cash (other than any such
non-cash dividend in the form of Capital Stock which does not provide
for the payment of cash dividends prior to any stated maturity of the
principal of the Notes), on any series of Disqualified Stock of such
Person or on Preferred Stock of its Restricted Subsidiaries payable to
a party other than the Company or a Wholly-Owned Subsidiary; and
(10) the cash 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 will 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.
For purposes of the foregoing, total interest expense will be determined after
giving effect to any net payments made or received by the Company and its
Subsidiaries with respect to Interest Rate Agreements. Notwithstanding the
foregoing, for as long as interest on the Shareholder Loans is
11
subordinated to the prior payment in full of all amounts payable with respect
to the Notes, the amount of such interest shall not be included in
Consolidated Interest Expense.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its consolidated Restricted Subsidiaries, determined in
accordance with Swedish GAAP; PROVIDED, HOWEVER, that there will not be included
in such Consolidated Net Income:
(1) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that:
(a) subject to the limitations contained in (4), (5) and (6),
below, the Company's equity in the net income of any such
Person for such period will 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
(3), below); and
(b) the Company's equity in a net loss of any such Person
(other than an Unrestricted Subsidiary) for such period will
be included in determining such Consolidated Net Income to the
extent such loss has been funded with cash from the Company or
a Restricted Subsidiary;
(2) 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;
(3) any net income of any Restricted Subsidiary if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Restricted Subsidiary,
directly or indirectly, to the Company, except that:
(a) subject to the limitations contained in (4), (5) and (6),
below, the Company's equity in the net income of any such
Restricted Subsidiary for such period will 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 (subject, in the case of a dividend
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 will be included in determining
such Consolidated Net Income;
(4) any gain (loss) realized upon the sale or other disposition of any
property, plant or equipment of the Company or its consolidated
Restricted Subsidiaries (including pursuant to any Sale/Leaseback
Transaction) which is not sold or otherwise disposed of in the ordinary
course of business and any gain (loss) realized upon the sale or other
disposition of any Capital Stock of any Person;
12
(5) any extraordinary gain or loss;
(6) the cumulative effect of a change in accounting principles;
(7) the tax effect of any of the items described in clauses (1)
through (6), above; and
(8) any non-cash amount attributable to income tax which is deducted
from such net income on the Company's consolidated statement of
operations in accordance with Swedish GAAP (other than amounts
attributable to deferred taxes) and which does not reflect taxes
imposed on and legally payable by the Company; PROVIDED that such
deduction shall not exceed the product of (A) the Company's taxable
income and (B) the applicable Swedish tax rate.
"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 and in accordance with Swedish GAAP, 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.
"Corral" means Corral Petroleum Holdings AB (publ).
"Corporate Trust Office" means the address of the Trustee specified in
Section 11.2, or such other address as to which the Trustee may, from time to
time, give written notice to the Company.
"Covenant Defeasance" shall have the meaning set forth in Section 8.3.
"Credit Facility" means one or more credit facilities, including
Existing Credit Facilities, with one or more banks, providing for revolving
credit loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow from
such lenders against such receivables) or letters of credit, in each case, as
amended, restated, modified, renewed, refunded, replaced or refinanced in whole
or in part from time to time (and whether or not with the original
administrative agent and lenders or another administrative agent or agents or
other lenders).
"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.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestration or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
13
"Default Interest Payment Date" shall have the meaning set forth in
Section 2.13.
"Definitive Notes" means Notes in definitive registered form
substantially in the form of Exhibits B and D.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable) or upon the happening
of any event:
(1) matures or is mandatorily redeemable pursuant to a sinking
fund obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock which is convertible or exchangeable
solely at the option of the Company or a Restricted Subsidiary); or
(3) is redeemable at the option of the holder thereof, in whole
or in part, in each case on or prior to the Stated Maturity of the
Notes;
in each case on or prior to the date that is 91 days after the date (a) on which
the Notes mature or (b) on which there are no Notes outstanding; PROVIDED, that
only the portion of Capital Stock that so matures or is mandatorily redeemable,
is so convertible or exchangeable or is so redeemable at the option of the
holder thereof prior to such Stated Maturity will be deemed to be Disqualified
Stock; and PROVIDED, FURTHER, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a change of
control or asset sale (each defined in a substantially identical manner to the
corresponding definitions in this Indenture) shall not constitute Disqualified
Stock if the terms of such Capital Stock (and all such securities into which it
is convertible or for which it is ratable or exchangeable) provide that the
Company may not repurchase or redeem any such Capital Stock (and all such
securities into which it is convertible or for which it is ratable or
exchangeable) pursuant to such provision prior to compliance by the Company with
the provisions of Sections 4.14 and 4.19 hereof and such repurchase or
redemption complies with Section 4.4 hereof.
"Euroclear" means Euroclear Bank S.A./N.V.
"Event of Default" shall have the meaning set forth in Section 6.1.
"Excess Proceeds" shall have the meaning set forth in Section 4.14.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Exchange Global Notes" means one or more Global Notes that do not and
are not required to bear the Private Placement Legend.
"Exchange Notes" have the meaning provided in the preamble to this
Indenture.
14
"Exchange Offer" means an offer by the Company, pursuant to a
Registration Rights Agreement, to Holders of Initial Notes, to issue and deliver
to such Holders, in exchange for their Initial Notes, a like aggregate principal
amount of Exchange Notes registered under the Securities Act.
"Existing Affiliate Agreements" means the following agreements:
(1) the payment of a fee to Capital Trust SA or one of its wholly-
owned subsidiaries equal to 1.5% of the gross proceeds of the offering
of the Notes;
(2) the Framework Co-Operation Agreement between Preem Raffinaderi AB
Preemraff and Midroc Engineering AB, dated October 5, 2000 and October
16, 2000, and the existing agreements thereunder in effect on the
Closing Date;
(3) the Framework Co-Operation Agreement between Preem Raffinaderi AB
Preemraff and Metalock Engineering AB, dated November 30, 2000, and the
existing agreements thereunder in effect on the Closing Date;
(4) the Framework Co-Operation Agreement between Preem Raffinaderi AB
Preemraff and Midroc Electro AB, dated January 23, 2001 and January 26,
2001, and the existing agreements thereunder in effect on the Closing
Date;
(5) the Prolongation Agreement between Skandinaviska Raffinaderi AB
Scanraff and Rodoverken AB, related to Agreement No. I-260, dated
February 18, 2000, and the existing agreements thereunder in effect on
the Closing Date;
(6) the Framework Agreement, No. 276 between Skandinaviska
Raffinaderi AB Scanraff and GP Stallningar AB, dated June 13, 2000 and
June 19, 2000, and the existing agreements thereunder in effect on the
Closing Date;
(7) the Framework Agreement, No. 253 between Skandinaviska
Raffinaderi AB Scanraff and Midroc Engineering AB, dated September 3,
2000 and September 14, 2000, and the existing agreements thereunder in
effect on the Closing Date;
(8) the Short-Term Credit Facility Agreement between Preem Petroleum AB
and Svenska Petroleum Exploration AB, dated August 29, 1997; and
(9) the Short-Term Credit Facility Agreement between Preem Petroleum AB
and Svenska Petroleum Exploration AB, dated October 1, 2000.
"Existing Credit Facility" means one or more Credit Facilities of Preem
in existence on the date of this Indenture, as the same may be amended from time
to time on terms that are not, taken as a whole, adverse to the Holders of the
Notes.
"Global Note" shall mean one or more Regulation S Global Notes, Rule
144A Global Notes or Exchange Global Notes.
15
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness 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
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness 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" will 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, Currency Agreement or Oil
Commodities Contract.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Incur" means issue, create, assume, Guarantee, incur or otherwise
become, contingently or otherwise, liable for; PROVIDED, HOWEVER, that any
Indebtedness of a Person existing at the time such Person becomes a Restricted
Subsidiary (whether by merger, consolidation, acquisition or otherwise) will be
deemed to be incurred by such Restricted Subsidiary at the time it becomes a
Restricted Subsidiary; and the terms "Incurred" and "Incurrence" have meanings
correlative to the foregoing. Indebtedness Incurred by the Company or a
Restricted Subsidiary and a Guarantee in respect thereof, in each case otherwise
permitted by this Indenture to be Incurred by the Company or a Restricted
Subsidiary, shall not constitute separate Incurrences of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium (if any) in respect of
indebtedness of such Person for borrowed money;
(2) the principal of and premium (if any) in respect of obligations of
such Person evidenced by bonds, debentures, notes or other similar
instruments (excluding trade payables);
(3) the principal component of all obligations of such Person in
respect of letters of credit, bankers' acceptances or other similar
instruments (including reimbursement obligations with respect thereto),
excluding letters of credit or similar instruments supporting trade
payables in the ordinary course of business that are not overdue by 90
days or more or are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted;
16
(4) the principal component of 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;
(5) all Capitalized Lease Obligations and all Attributable
Indebtedness of such Person;
(6) 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, any Preferred Stock (but excluding, in
each case, any accrued dividends);
(7) the principal component of 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 such Indebtedness will 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;
(8) the principal component of all Indebtedness of other Persons
to the extent Guaranteed by such Person; and
(9) to the extent not otherwise included in this definition, net
obligations of such Person under Currency Agreements, Interest Rate
Agreements and Oil Commodities Contracts (the amount of any such
obligations to be equal at any time to the termination value of such
agreement or arrangement giving rise to such obligation that would be
payable by such Person at such time).
The amount of Indebtedness of any Person at any date will 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. For purposes of the
preceding sentence, the maximum fixed repurchase price of any redeemable stock
or Preferred Stock of a Subsidiary that does not have a fixed repurchase price
shall be calculated in accordance with the terms of such redeemable stock or
Preferred Stock as if such redeemable stock or Preferred Stock were repurchased
on any date on which Indebtedness shall be required to be determined hereunder.
In addition, "Indebtedness" of any Person shall include Indebtedness described
in the foregoing paragraph that would not appear as a liability on the balance
sheet of such Person if:
(1) such Indebtedness is the obligation of a partnership or joint
venture that is not a Restricted Subsidiary (a "Joint Venture");
(2) such Person or a Restricted Subsidiary is a general partner
of the Joint Venture (a "General Partner"); and
(3) there is recourse, by contract or operation of law, with respect to
the payment of such Indebtedness to property or assets of such Person
or a Restricted Subsidiary of such Person; and such Indebtedness shall
be included in an amount not to exceed (a) the greater of (x) the net
assets of the General Partner and (y) the amount of such obligations
17
to the extent that there is recourse, by contract or operation of law,
to the property or assets of such Person or a Restricted Subsidiary of
such Person (other than the General Partner) or (b) if less than the
amount determined pursuant to clause (a) immediately above, the actual
amount of such Indebtedness that is recourse to such Person, if the
Indebtedness is evidenced by a writing and is for a determinable amount
and the related interest expense shall be included in Consolidated
Interest Expense to the extent paid by the Company or its Restricted
Subsidiaries.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time in accordance with the terms hereof.
"Initial Global Notes" means the Regulation S Global Note and the Rule
144A Global Note.
"Initial Notes" shall have the meaning set forth in the preamble to
this Indenture.
"Initial Purchasers" means Deutsche Bank AG and UBS Warburg Ltd.
"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" means, with respect to any Person, all investments by such
Person in other Persons (including Affiliates) in the form of any direct or
indirect advance, loan (other than advances to customers in the ordinary course
of business) or other extension of credit (including by way of Guarantee or
similar arrangement, but excluding any debt or extension of credit represented
by a bank deposit other than a time deposit), 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 and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with Swedish GAAP;
PROVIDED that the following shall not be deemed to be an Investment:
(1) Hedging Obligations entered into in the ordinary course of
business and in compliance with this Indenture;
(2) endorsements of negotiable instruments and documents in the
ordinary course of business; and
(3) an acquisition of assets, Capital Stock or other securities by the
Company for consideration consisting exclusively of common equity
securities of the Company.
For purposes of Section 4.4 hereof:
(1) "Investment" will include the portion (proportionate to the
Company's equity interest in a Restricted Subsidiary to be designated
as an Unrestricted Subsidiary) of the
18
fair market value of the net assets of such Restricted Subsidiary of
the Company at the time that such Restricted Subsidiary is
designated an Unrestricted Subsidiary; PROVIDED, HOWEVER, that upon
a redesignation of such Subsidiary as a Restricted Subsidiary, the
Company will be deemed to continue to have a permanent "Investment"
in an Unrestricted Subsidiary in an amount (if positive) equal to
(a) the Company's "Investment" in such Subsidiary at the time of
such redesignation less (b) 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 that such
Subsidiary is so re-designated a Restricted Subsidiary; and
(2) any property transferred to or from an Unrestricted Subsidiary will
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 of the
Company. If the Company or any Restricted Subsidiary of the Company
sells or otherwise disposes of any Capital Stock of any Restricted
Subsidiary of the Company such that, after giving effect to any such
sale or disposition, such entity is no longer a Subsidiary of the
Company, the Company shall be deemed to have made an Investment on the
date of any such sale or disposition equal to the fair market value of
the Capital Stock of such Subsidiary not sold or disposed of.
"Issue Date" means the date on which Notes are originally issued under
this Indenture.
"Legal Defeasance" shall have the meaning set forth in Section 8.2.
"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).
"Liquidated Damages" has the meaning set forth in the Registration
Rights Agreement.
"Loan Assignment" shall mean a first priority security assignment of
the Preem Pledged Loan.
"Maturity Date" means March 31, 2011.
"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 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:
(1) all legal, accounting, investment banking, 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 Swedish GAAP (after taking into account
any available tax credits or deductions and any tax sharing
arrangements), as a consequence of such Asset Disposition;
19
(2) all payments made with respect to 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;
(3) 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
(4) appropriate amounts to be provided by the seller as a reserve, in
accordance with Swedish 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.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds 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 actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result of such issuance or sale (after taking into account any available tax
credits or deductions and any tax sharing arrangements).
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any Restricted Subsidiary (a)
provides any guarantee or credit support of any kind (including any
undertaking, guarantee, indemnity, agreement or instrument that would
constitute Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise);
(2) no default with respect to which (including any rights that the
holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default under such other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and
(3) the explicit terms of which provide there is no recourse against
any of the assets of the Company or its Restricted Subsidiaries.
"Notes" shall have the meaning set forth in the preamble of this
Indenture.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Vice Chairman, the Chief Financial Officer or the Finance
Director of the Company.
"Officers' Certificate" means a certificate signed by two Officers or
by an Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company.
"Oil Commodities Contract" means, in respect of a Person, any option,
futures or forward hedging contract, derivative instrument or other similar
agreement designed to protect such
20
Person against fluctuations in the price of crude oil, other feedstocks and
refined petroleum products, as the case may be.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be outside counsel to the Company.
"Original Notes" shall have the meaning set forth in the preamble to
this Indenture.
"Paying Agent" shall have the meaning set forth in Section 2.3.
"Permitted Holders" means Xxxxxxxx Xxxxxxx Al-Amoudi or any Related
Party thereof.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(1) the Company, a Restricted Subsidiary or a Person that will, upon
the making of such Investment, become a Restricted Subsidiary;
PROVIDED, HOWEVER, that the primary business of such Restricted
Subsidiary is a Related Business;
(2) another Person if as a result of such 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;
(3) cash and Cash Equivalents;
(4) receivables owing to the Company or any Restricted Subsidiary
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(5) 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;
(6) loans or advances to employees made in the ordinary course of
business, consistent with past practices of the Company or such
Restricted Subsidiary and in an aggregate amount not to exceed
E 5.0 million at any time outstanding;
(7) loans or advances to employees the proceeds of which are used to
purchase Capital Stock of the Company, in an aggregate amount not in
excess of E 2.0 million at any one time outstanding;
(8) 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 or pursuant
to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of a debtor or upon foreclosure actions in
favor of the Company or a Restricted Subsidiary;
21
(9) Investments made as a result of the receipt of non-cash
consideration from an Asset Disposition that was made pursuant to and
in compliance with Section 4.14 hereof
(10) Investments in existence on the Closing Date;
(11) Investments by the Company or any of its Restricted Subsidiaries
in an aggregate amount not to exceed E 20.0 million outstanding at
any one time (plus, to the extent not previously reinvested, any return
of capital not previously realized made pursuant to this clause (11));
(12) Currency Agreements, Interest Rate Agreements, Oil Commodities
Contracts and related Hedging Obligations, which transactions or
obligations are Incurred in compliance with Section 4.3 hereof; and
(13) prepaid expenses, negotiable instruments held for collection, and
lease, utility, workers' compensation, performance and similar
deposits, in each case, in the ordinary course of business.
"Permitted Liens" means, with respect to any Person:
(1) pledges or deposits by such Person under workmen's compensation
laws, unemployment insurance laws or similar legislation, or in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or to secure
public or statutory obligations of such Person or deposits or cash or
United States or Swedish government bonds to secure bid, surety or
appeal bonds to which such Person is a party, or for contested taxes or
import or custom duties or for the payment of rent, in each case
Incurred in the ordinary course of business;
(2) Liens imposed by law, including carriers', warehousemen's,
mechanics' suppliers', materialmen and repairmen Liens and Liens in
favor of customs authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods,
in each case for sums not yet due or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision,
if any, as shall be required by Swedish GAAP shall have been made in
respect thereof;
(3) Liens for taxes, assessments or other governmental charges not yet
subject to penalties for non-payment or which are being contested in
good faith by appropriate proceedings provided reserves required
pursuant to Swedish GAAP have been taken on the books of the Company or
its Restricted Subsidiaries;
(4) Liens in favor of issuers of bid, surety or performance bonds or
bankers' acceptances or letters of credit issued pursuant to the
request of and for the account of such Person in the ordinary course of
its business; PROVIDED, HOWEVER, that such letters of credit do not
constitute Indebtedness;
(5) 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
22
to the conduct of the business of such Person or to the ownership of
its properties that were not Incurred in connection with Indebtedness
and that 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;
(6) Liens securing a Hedging Obligation, so long as the related
Indebtedness is, and is permitted to be under this Indenture, secured
by a Lien on the same property securing the Interest Rate Protection
Agreement, Currency Agreement or Oil Commodities Contract, as the case
may be;
(7) leases and subleases of real property and equipment appurtenant
thereto which do not materially interfere with the ordinary conduct of
the business of the Company or any of its Restricted Subsidiaries;
(8) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment have
not been finally terminated or the period within which such proceedings
may be initiated has not expired;
(9) Liens for the purpose of securing the payment (or the refinancing
of the payment) of all or a part of the purchase price of, or
Capitalized Lease Obligations with respect to, assets or property
acquired or constructed in the ordinary course of business provided
that (x) the aggregate principal amount of Indebtedness secured by such
Liens is otherwise permitted to be Incurred under this Indenture and
does not exceed the cost of the assets or property so acquired or
constructed and (y) such Liens are created within 90 days of
construction or acquisition of such assets or property and do not
encumber any other assets or property of the Company or any Restricted
Subsidiary other than such assets or property and assets affixed or
appurtenant thereto;
(10) Liens arising solely by virtue of any statutory or common law
provision relating to banker's Liens, rights of set-off or similar
rights and remedies as to deposit accounts or other funds maintained
with a depository institution; PROVIDED that (x) such deposit account
is not a pledged cash collateral account and (y) such deposit account
is not intended by the Company or any Restricted Subsidiary to provide
collateral to the depository institution;
(11) Liens arising from filings or other methods of protection of
interests regarding operating leases entered into by the Company and
its Restricted Subsidiaries in the ordinary course of business;
(12) Liens existing on the Closing Date;
(13) Liens on property or shares of stock of a Person at the time such
Person becomes a Subsidiary; PROVIDED, HOWEVER, that such Liens are not
created, incurred or assumed in connection with, or in contemplation
of, such other Person becoming a Subsidiary; PROVIDED FURTHER, HOWEVER,
that any such Lien may not extend to any other property owned by the
Company or any Restricted Subsidiary;
23
(14) Liens on property at the time the Company or a 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 may not extend to any other
property owned by the Company or any Restricted Subsidiary;
(15) Liens securing Indebtedness or other obligations of a
Subsidiary owing to the Company or a Restricted Subsidiary;
(16) Liens securing the Notes;
(17) Liens securing Refinancing Indebtedness permitted under this
Indenture incurred to Refinance Indebtedness that was previously so
secured, PROVIDED that (a) such Liens are not more restrictive than the
Liens in respect of the Indebtedness being Refinanced and (b) any such
Lien is limited to all or part of the same property or assets (plus
improvements, accessions, proceeds or dividends or distributions in
respect thereof) that secured (or, under the written arrangements under
which the original Lien arose, could secure) the obligations to which
such Liens relate;
(18) To the extent that the principal amount of any Sale/Leaseback
Indebtedness is permanently repaid and the Liens securing such
Indebtedness are released, then new Liens may be incurred on assets of
a Restricted Subsidiary to secure Indebtedness of the Company or a
Restricted Subsidiary under Credit Facilities, PROVIDED that the
principal amount of such Indebtedness does not exceed the amount of
Sale/Leaseback Indebtedness so permanently repaid, and PROVIDED FURTHER
that such Indebtedness is permitted to be Incurred under Section 4.3
hereof;
(19) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by the Company or any Restricted Subsidiary
in the ordinary course of business;
(20) Liens on accounts receivable, inventory and related working
capital assets of the Company or any Restricted Subsidiary, in each
case securing Indebtedness Incurred under Credit Facilities pursuant to
clause (1) in paragraph (b) of Section 4.3 hereof; or
(21) Liens securing Indebtedness, when taken together with all other
Liens made pursuant to this clause (21) that are at the time
outstanding, not in excess of E 2.0 million.
"Permitted Preem Loan Payment" means the payment or payments made to
Corral not to exceed in the aggregate E 236 million, PROVIDED, HOWEVER, that
unless the Company furnishes the Trustee with an Officers' Certificate
confirming that the Company has, and on the first interest payment date will
have, funds available to satisfy the payments due on the Notes on such date,
together with an Opinion of Counsel confirming the Company's ability to pay such
amount to Holders out of legally available funds on such date, then prior to
making such payment, the Company may only make a Permitted Preem Loan Payment up
to E 223 million.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, government or any agency or political subdivision hereof or
any other entity.
24
"Pledges" means the Stock Pledge and the Loan Assignment, collectively.
"Preem" means Preem Petroleum AB, a Subsidiary of the Company.
"Preem Pledged Loan" means that certain Shareholder Loan Agreement No.
1A, dated the date hereof, between the Company, as lender, and Preem, as
borrower, representing subordinated shareholder debt owed to the Company by
Preem in a principal amount equal to the Swedish Krona equivalent of the
aggregate gross proceeds of the Notes offered on the date hereof.
"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 dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Private Placement Legend" means the legend set forth in
Section 2.7(g).
"Public Equity Offering" means an underwritten primary public offering
of ordinary shares of either of the Company or Corral pursuant to (i) an
effective registration statement under the Securities Act (other than public
offerings on Forms S-4, F-4 or S-8) or (ii) a placement outside the United
States and/or pursuant to Rule 144A under the Securities Act involving the
distribution of an offering circular to at least 100 BONA FIDE prospective
purchasers and listing of such ordinary shares on a Recognized Stock Exchange.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Recognized Stock Exchange" means the Stockholm Stock Exchange, EASDAQ,
the Luxembourg Stock Exchange or a national securities exchange in the United
States.
"Record Date" means the Record Dates specified in the Notes.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and
Paragraph 8 of the Initial Notes and Paragraphs 7 of the Exchange Notes.
"Redemption Price" when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and
Paragraphs 8 and 9 of the Initial Notes and Paragraphs 7 and 8 of the Exchange
Notes.
"Refinancing Indebtedness" means Indebtedness that is Incurred to
refund, refinance, replace, renew or repay (including pursuant to any defeasance
or discharge mechanism) (collectively, "refinance", "refinances", and
"refinanced" shall have a correlative meaning) any Indebtedness Incurred in
compliance with this Indenture (including Indebtedness of the Company that
refinances Indebtedness of any Restricted Subsidiary) including Indebtedness
that refinances Refinancing Indebtedness, PROVIDED, HOWEVER, that:
25
(1) the Refinancing Indebtedness has a Stated Maturity no
earlier than the Stated Maturity of the Indebtedness being refinanced;
(2) 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;
(3) 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 sum of the aggregate principal
amount (or if issued with original issue discount, the aggregate
accreted value) then outstanding (plus accrued interest, fees and
expenses, including the costs of refinancing and any premium and
defeasance costs) of the Indebtedness being refinanced;
(4) if the Indebtedness being extended, refinanced, replaced, defeased
or refunded is subordinated in right of payment to the Notes, such
Refinancing Indebtedness is subordinated in right of payment to the
Notes to at least the same extent, and in the same manner, as the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and
(5) in no case shall Refinancing Indebtedness include any Indebtedness
that is Incurred to refinance a Shareholder Loan.
"Registrar" shall have the meaning set forth in Section 2.3.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement among the Company and the Initial Purchasers, relating to the Original
Notes and dated as of April 10, 2001, as the same may be amended, supplemented
or modified from time to time in accordance with the terms thereof and (ii) any
similar registration rights agreement relating to Additional Notes, as the same
may be amended, supplemented or modified from time to time in accordance with
the terms thereof.
"Regulation S" means Regulation S (including any successor regulation
thereto) under the Securities Act, as it may be amended from time to time.
"Regulation S Global Note" shall have the meaning set forth in Section
2.1.
"Regulation S Note" shall have the meaning set forth in Section 2.1.
"Related Business" means, with respect to the Company and its
Restricted Subsidiaries, (i) the business of the acquisition, processing,
marketing, refining, storage and/or transportation of hydrocarbons and royalty
or other interests in crude oil or associated products, (ii) the acquisition,
operation, improvement, leasing and other use of retail service stations and
attached or appurtenant convenience stores and other similar retail sales
operations in connection therewith and (iii) any business that is the same as or
reasonably related to any of the businesses of the Company and its Restricted
Subsidiaries on the date of this Indenture or reasonable extensions,
developments or expansions thereof except such extensions, developments or
expansions of businesses other than those described in clauses (i) and (ii),
above; PROVIDED that,
26
it is expressly agreed and understood that the term "Related Business" shall
include an expansion into other areas of the energy sector such as the
generation, transmission, marketing and sale of electricity; and, PROVIDED,
FURTHER, that the term "Related Business" shall not include "upstream"
exploration and production of crude oil or associated products except to the
extent, and only to the extent, that the Company or one of its Restricted
Subsidiaries engages in such exploration and production on the Closing Date
without any extension, development or expansion thereof.
"Related Business Assets" means assets used or useful in a Related
Business.
"Related Party" with respect to any Permitted Holder means (A) any
Subsidiary of such Permitted Holder or (B) any trust, corporation, partnership
or other entity, the beneficiaries, stockholders, partners, owners or Persons
beneficially holding a majority controlling interest of which consist of such
Permitted Holder and/or such other Persons referred to in the immediately
preceding clause (A).
"Restricted Dividends and Distributions" shall have the meaning set
forth in Section 6.1(11) hereof.
"Restricted Investment" means any Investment that is not a Permitted
Investment.
"Restricted Period" shall have the meaning set forth in Section 2.7(b)
hereof.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
"Rule 144" means Rule 144 (including any successor regulation thereto)
under the Securities Act, as it may be amended from time to time.
"Rule 144A" means Rule 144A (including any successor regulation
thereto) under the Securities Act, as it may be amended from time to time.
"Rule 144A Global Note" shall have the meaning set forth in Section 2.1
hereof.
"Rule 144A Notes" shall have the meaning set forth in Section 2.1
hereof.
"S&P" means Standard & Poor's Ratings Group and its successors.
"Sale/Leaseback Indebtedness" means Indebtedness in an amount not to
exceed SEK1,200,000,000 under the Term Loan Facility for Syrhola Handelsbolag
arranged by Enskilda Debt Capital Markets, dated February 3, 1998, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time (and whether or not with the original agent, arranger and
lenders or other agents, arrangers or lenders).
"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 Subsidiary leases it
from such Person.
"SEC" means the Securities and Exchange Commission.
27
"Securities Act" means the United States Securities Act of 1933, as
amended, or any similar federal statute then in effect, and a reference to a
particular section thereof shall be deemed to include a reference to the
comparable section, if any, of any such similar federal statute.
"Security Documents" means, collectively, (i) this Indenture, (ii) the
Share Pledge Agreement, dated the date hereof, between the Company, as pledgor,
and the Trustee, in its capacity as Trustee for the Holders (including the
intercreditor arrangements in favor of the Trustee in respect thereof), (iii)
the Security Assignment Agreement, dated the date hereof, between the Company,
as assignor, and the Trustee, in its capacity as Trustee for the Holders
(including the intercreditor arrangements in favor of the Trustee in respect
thereof) and (iv) all security agreements, mortgages, deeds of trust, collateral
assignments and other instruments evidencing or creating any security interest
in favor of the Trustee in all or any portion of the Collateral, in each case,
as amended, supplemented or modified from time to time in accordance with their
terms and the terms of this Indenture.
"Senior Indebtedness" means all Indebtedness other than Subordinated
Obligations.
"Shareholder Loan" means the Loan Agreement, dated as of October 31,
2000, between Preem and Corral, as restructured in connection with issuance of
the Notes as Shareholder Loan No. 2 dated as of the date of this Indenture, and
providing for obligations from the Company to Corral, and any future similar
agreement (including any shareholder loan made pursuant to and in accordance
with clause (b)(8) of Section 4.4 hereof or any amendment to any of the
foregoing).
"Significant Subsidiary" means any 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, not taking into account any contingent
obligations to repay, redeem, or repurchase any such principal prior to the date
originally scheduled for the payment thereof.
"Stock Pledge" shall mean a first priority pledge of all of the Capital
Stock of Preem.
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the Issue Date or thereafter Incurred) which is
subordinate or junior in right of payment to the Notes 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 (1) such Person, (2) such Person
and one or more Subsidiaries of such Person or (3) one or more Subsidiaries of
such Person; PROVIDED that, Skandinaviska Kracker AB Scancracker and Goteborgs
Smorjmedelsfabrik (Scanlube) AB shall
28
each be deemed a "Subsidiary" of the Company for purposes of the Notes.
Unless otherwise specified herein, each reference to a Subsidiary will refer
to a Subsidiary of the Company.
"Successor Company" shall have the meaning set forth in Section
6.1(3)(a).
"Swedish GAAP" means generally accepted accounting principles in The
Kingdom of Sweden as in effect as of the date hereof; PROVIDED, HOWEVER, that
all reports and other financial information provided by the Company to the
Holders, the Trustee and/or the Commission shall be prepared in accordance with
Swedish GAAP, as in effect on the date of such report or other financial
information. All ratios and computations based on Swedish GAAP contained in this
Indenture will be computed in conformity with Swedish GAAP.
"Tax Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraph 9 of the Initial Notes and Paragraphs 8 of the Exchange Notes.
"Taxes" shall have the meaning set forth in Section 4.20.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as it may be amended from time to time.
"Trust Officer" means any officer within Corporate Trust and Agency
Services (or any successor group of the Trustee), including any director,
managing director, vice president, assistant vice president, corporate trust
officer, assistant corporate trust officer associate or any other officer or
assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such trust matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" " means:
(1) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of
Directors of the Company in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of the
Company (including any newly acquired or newly formed Subsidiary or a Person
becoming a Subsidiary through merger or consolidation or Investment therein) to
be an Unrestricted Subsidiary only if:
(1) such Subsidiary does not own any Capital Stock of, or own or hold
any Lien on any property of, any other Subsidiary of the Company which
is not a Subsidiary of the Subsidiary to be so designated or otherwise
an Unrestricted Subsidiary;
29
(2) all the Indebtedness of such Subsidiary and its Subsidiaries shall,
at the date of designation, and will at all times thereafter, consist
of Non-Recourse Debt;
(3) the Company certifies that such designation complies with the
limitations of Section 4.4 hereof;
(4) such Subsidiary, either alone or in the aggregate with all other
Unrestricted Subsidiaries, does not operate, directly or indirectly,
all or substantially all of the business of the Company and its
Subsidiaries;
(5) such Subsidiary does not, directly or indirectly, own any
Indebtedness of or Capital Stock of, and has no investments in, the
Company or any Restricted Subsidiary; and
(6) such Subsidiary is a Person with respect to which neither the
Company nor any of its Restricted Subsidiaries has any direct or
indirect obligation (a) to subscribe for additional Capital Stock of
such Person or (b) to maintain or preserve such Person's financial
condition or to cause such Person to achieve any specified levels of
operating results.
Any such designation by the Board of Directors of the Company shall be evidenced
to the Trustee by filing with the Trustee a Board Resolution of the Company
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions. If, at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes hereof and any Indebtedness of such Subsidiary shall be
deemed to be Incurred as of such date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; PROVIDED
that immediately after giving effect to such designation, no Default or Event of
Default shall have occurred and be continuing or would occur as a consequence
thereof and the Company could incur at least E 1.00 of additional Indebtedness
under paragraph (a) of Section 4.3 hereof on a PRO FORMA basis taking into
account such designation.
"U.S. Person" means a "U.S. person" as defined in Rule 902 under the
Securities Act or any successor rule.
"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.
"Wholly-Owned Subsidiary" means a Restricted Subsidiary of the Company,
all of the Capital Stock of which (other than directors' qualifying shares) is
owned by the Company or another Wholly-Owned Subsidiary.
SECTION 1.2 INCORPORATION BY REFERENCE OF TIA. This Indenture is
subject to the mandatory provisions of the TIA which as of the date hereof
and thereafter as in effect are incorporated by reference in, and made a part
of, this Indenture. The following TIA terms used in this Indenture have the
following meanings:
30
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
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 and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.3 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with Swedish GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
THE NOTES
SECTION 2.1 FORM AND DATING. The Initial Notes and the notation
relating to the Trustee's certificate of authentication thereof, shall be
substantially in the form of Exhibits A or B, as applicable. The Exchange
Notes, and the notation relating to the Trustee's certificate of
authentication thereof, shall be substantially in the form of Exhibits C or D,
as applicable. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. The Company and the Trustee shall
approve the form of the Notes and any notation, legend or endorsement on
them. Each Note shall be dated the date of its issuance and shall show the
date of its authentication.
The terms and provisions contained in the Notes, annexed hereto as
Exhibits A, B, C, D shall constitute, and are hereby expressly made, a part of
this Indenture and, to the extent
31
applicable, the Company, the Trustee and the Principal Paying Agent, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. The Notes will initially be represented
by the Initial Global Notes.
As long as the Notes are in global form, the Principal Paying Agent (in
lieu of the Trustee) shall be responsible for:
(i) paying sums due on the Global Notes; and
(ii) arranging on behalf of and at the expense of the Company for
notices to be communicated to Holders in accordance with the terms of this
Indenture.
Each reference in this Indenture to the performance of duties set forth in
clauses (i) and (ii), above, by the Trustee includes performance of such duties
by the Principal Paying Agent.
Notes offered and sold in their initial distribution in reliance on
Regulation S shall be initially issued as one or more global notes, in
registered global form without interest coupons, substantially in the form of
Exhibit A hereto, with such applicable legends as are provided in Exhibit A
hereto, except as otherwise permitted herein. Such Initial Global Notes shall be
referred to collectively herein as the "REGULATION S GLOBAL NOTE." The aggregate
principal amount of the Regulation S Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
hereinafter provided (or by the issue of a further Regulation S Global Note), in
connection with a corresponding decrease or increase in the aggregate principal
amount of the Rule 144A Global Note or in consequence of the issue of Definitive
Notes or additional Regulation S Notes, as hereinafter provided. The Regulation
S Global Note and all other Initial Notes that are not Rule 144A Global Notes
shall collectively be referred to herein as the "REGULATION S NOTES."
Notes offered and sold in their initial distribution in reliance on
Rule 144A shall be initially issued as one or more global notes in registered,
global form without interest coupons, substantially in the form of Exhibit A
hereto, with such applicable legends as are provided in Exhibit A, except as
otherwise permitted herein. Such Initial Global Notes shall be referred to
collectively herein as the "RULE 144A GLOBAL NOTE." The aggregate principal
amount of the Rule 144A Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as hereinafter
provided (or by the issue of a further Rule 144A Global Note), in connection
with a corresponding decrease or increase in the aggregate principal amount of
the Regulation S Global Note or in consequence of the issue of Definitive Notes
or additional Rule 144A Notes, as hereinafter provided. The Rule 144A Global
Note and all other Initial Notes, if any, evidencing the debt, or any portion of
the debt, initially evidenced by such Rule 144A Global Note, shall collectively
be referred to herein as the "RULE 144A NOTES."
SECTION 2.2 EXECUTION AND AUTHENTICATION. Two Officers shall sign,
or one Officer and one member of the Board of Directors shall sign, or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
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If an Officer or Director whose signature is on a Note was an Officer
or Director at the time of such execution but no longer holds that office or
position at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
Except as otherwise provided herein, the aggregate principal amount of
Notes which may be outstanding at any time under this Indenture is not limited
in amount. The Trustee shall authenticate such Notes which shall consist of (i)
Original Notes for original issue on the Closing Date in an aggregate principal
amount not to exceed E 250,000,000, (ii) Additional Notes from time to time
for issuance after the Closing Date to the extent otherwise permitted hereunder
(including, without limitation, under Section 4.3 hereof) and (iii) Exchange
Notes from time to time for issue in principal amount for issuance in exchange
for a like principal amount of Initial Notes pursuant to an exchange offer
registration statement under the Securities Act, in each case upon receipt of a
Company Order in the form of an Officers' Certificate. Exchange Notes may have
such distinctive series designation, and such changes in the form thereof, as
are specified in the written order referred to in the preceding sentence.
Additional Notes will be treated as the same series of Notes as the Original
Notes for all purposes under this Indenture, including, without limitation, for
purposes of waivers, amendments, redemptions and offers to purchase. Such
Company Order shall specify the aggregate principal amount of Notes to be
authenticated, the series and type of Notes, the date on which the Notes are to
be authenticated, the issue price and the date from which interest on such Notes
shall accrue, whether the Notes are to be Original Notes, Additional Notes or
Exchange Notes, whether the Notes are to be issued as Definitive Notes or Global
Notes and whether or not the Notes shall bear the Private Placement Legend, or
such other information as the Trustee may reasonably request. In authenticating
the Notes and accepting the responsibilities under this Indenture in relation to
the Notes, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the form and terms
thereof have been established in conformity with the provisions of this
Indenture. Upon receipt of a Company Order, the Trustee shall authenticate Notes
in substitution of Notes originally issued to reflect any name change of the
Company.
The Trustee may appoint an authenticating agent ("AUTHENTICATING
AGENT") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Notes shall be issuable only in denominations of E 1,000 and any
integral multiple thereof.
SECTION 2.3 REGISTRAR AND PAYING AGENT. The Company shall maintain
an office or agency in the Borough of Manhattan, The City of
New York where
Global Notes may be registered ("REGISTRAR"). The Company shall maintain an
office or agency in London, England, where (i) Global Notes may be presented
or surrendered for payment ("PAYING AGENT") and
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(iii) notices and demands in respect of such Global Notes and this Indenture
may be served. In the event that Definitive Notes are issued, (x) Definitive
Notes may be presented or surrendered for registration of transfer or for
exchange, (y) Definitive Notes may be presented or surrendered for payment
and (z) notices and demands in respect of the Definitive Notes and this
Indenture may be served at an office of the Registrar or the Paying Agent, as
applicable, in the Borough of Manhattan, The City of
New York, and, if and so
long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such stock exchange so require, the Company shall appoint Deutsche Bank
Luxembourg S.A., or such other Person located in Luxembourg and reasonably
acceptable to the Trustee, as an additional Paying Agent. The Registrar shall
keep a register of the Notes 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 Bankers Trust
Company as Registrar and Paying Agent until such time as Bankers Trust
Company has resigned or a successor has been appointed. In the event that a
Paying Agent or transfer agent is replaced, the Company will provide notice
thereof (so long as the Notes are Global Notes) published in a leading
newspaper having general circulation in
New York City (which is expected to
be THE WALL STREET JOURNAL) 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) and (in the case of Definitive
Notes), in addition to such publication, mailed by first-class mail to each
Holder's registered address. The Company may change any Registrar without
notice to the Holders. Payment of principal will be made upon the surrender
of Definitive Notes at the office of the Paying Agent, including, if any, the
Paying Agent in Luxembourg. In the case of a transfer of a Definitive Note in
part, upon surrender of the Definitive Note to be transferred, a Definitive
Note shall be issued to the transferee in respect of the principal amount
transferred and a Definitive Note shall be issued to the transferor in
respect of the balance of the principal amount of the transferred Definitive
Note at the office of any transfer agent, including, if any, the transfer
agent in Luxembourg.
If the Notes are listed on the Luxembourg Stock Exchange and the rules
of such stock exchange so require, the Company will appoint Deutsche Bank
Luxembourg S.A., or such other Person located in Luxembourg and reasonably
acceptable to the Trustee, as an additional Paying Agent and transfer agent. For
the avoidance of doubt, upon the issuance of Definitive Notes, Holders will be
able to receive principal and interest on the Notes and will be able to transfer
Definitive Notes at the Luxembourg office of such paying and transfer agent,
subject to the right of the Company to mail payments in accordance with the
terms of this Indenture.
Claims against the Company for payment of principal, interest,
Additional Amounts, if any, and Liquidated Damages, if any, on the Notes will
become void unless presentment for payment is made (where so required herein)
within, in the case of principal, Additional Amounts, if any, and Liquidated
Damages, if any, a period of ten years or, in the case of interest, a period of
five years, in each case from the applicable original payment date therefor.
SECTION 2.4 PAYING AGENT TO HOLD ASSETS IN TRUST. The Company
shall require each Paying Agent other than the Trustee and the Principal
Paying Agent to agree in writing that each Paying Agent shall hold in trust
for the benefit of Holders or the Trustee all assets held by
34
the Paying Agent for the payment of principal of, Additional Amounts, if any,
Liquidated Damages, if any, premium, if any, or interest on, the Notes, and
shall notify the Trustee of any Default by the Company in making any such
payment. The Company at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute
all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
SECTION 2.5 LIST OF HOLDERS. 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 Holders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee before each Record Date
and at such other times as the Trustee may request in writing a list as of
such date and in such form as the Trustee may reasonably require of the names
and addresses of Holders, which list may be conclusively relied upon by the
Trustee.
SECTION 2.6 BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. (a) The Global
Notes initially shall (i) be registered in the name of the Clearing Agency or
its nominee, (ii) be delivered to the Clearing Agency or its custodian and
(iii) bear legends as set forth in Section 2.7(g) hereto.
(b) Notwithstanding any other provisions of this Indenture, a Global
Note may not be transferred as a whole except by the Clearing Agency to a
nominee of the Clearing Agency or by a nominee of the Clearing Agency to the
Clearing Agency or another successor of the Clearing Agency or a nominee of such
successor. Interests of beneficial owners in the Global Notes may be transferred
or exchanged for Definitive Notes in accordance with the rules and procedures of
the Clearing Agency and the provisions of Section 2.7. All Global Notes shall be
exchanged by the Company (with authentication by the Trustee) for one or more
Definitive Notes, if (a) any Clearing Agency (i) has notified the Company that
it is unwilling or unable to continue as a clearing agency and (ii) a successor
to the Clearing Agency is not able to be appointed by the Company within 120
days of such notification, (b) any Clearing Agency so requests following an
Event of Default hereunder or (c) in whole (but not in part) at any time if the
Company in its sole discretion determines. If an Event of Default occurs and is
continuing, the Company shall, at the written request delivered through a
Clearing Agency of the Holder thereof or of the holder of an interest therein,
exchange all or part of a Global Note for one or more Definitive Notes (with
authentication by the Trustee); PROVIDED, HOWEVER, that the principal amount at
maturity of such Definitive Notes and such Global Note after such exchange shall
be EURO 1,000 or integral multiples thereof. Whenever all of a Global Note is
exchanged for one or more Definitive Notes, it shall be surrendered by the
Holder thereof to the Trustee for cancellation. Whenever a part of a Global Note
is exchanged for one or more Definitive Notes, the Global Note shall be
surrendered by the Holder thereof to the Trustee who shall cause an adjustment
to be made to Schedule A of such Global Note such that the principal amount of
such Global Note will be equal to the portion of such Global Note not exchanged
and shall thereafter return such Global Note to such Holder. A Global Note may
not be exchanged for a Definitive Note other than as provided in this Section
2.6(b).
35
(c) In connection with the transfer of Global Notes as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.6, the Global
Notes shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall upon written instructions from the
Company authenticate and make available for delivery, to each beneficial owner
in exchange for its beneficial interest in the Global Notes, an equal aggregate
principal amount of Definitive Notes of authorized denominations.
(d) Any Definitive Note constituting a Rule 144A Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) of this
Section 2.6 shall, except as otherwise provided by Section 2.8, bear the Private
Placement Legend.
SECTION REGISTRATION OF TRANSFER AND EXCHANGE. (a) Notwithstanding any
provision to the contrary herein, so long as a Note remains outstanding,
transfers of beneficial interests in Global Notes or transfers of Definitive
Notes, in whole or in part, shall be made only in accordance with this Section
2.7.
(b) If a holder of a beneficial interest in the Rule 144A Global Note
wishes at any time to exchange its interest in such Rule 144A Global Note for an
interest in the Regulation S Global Note, or to transfer its interest in such
Rule 144A Global Note to a Person who wishes to take delivery thereof in the
form of an interest in such Regulation S Global Note, such holder may, subject
to the rules and procedures of the Clearing Agency, to the extent applicable,
and to the requirements set forth in the following sentence, exchange or cause
the exchange or transfer or cause the transfer of such interest for an
equivalent beneficial interest in such Regulation S Global Note. Upon receipt by
the Principal Paying Agent, as transfer agent, at its office in London, England
of (1) written instructions given in accordance with the procedures of the
Clearing Agency, to the extent applicable, from or on behalf of a holder of a
beneficial interest in the Rule 144A Global Note, directing the Trustee, as
transfer agent, to credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial interest in the
Rule 144A Global Note to be exchanged or transferred, (2) a written order given
in accordance with the procedures of the Clearing Agency, to the extent
applicable, containing information regarding the account to be credited with
such increase and the name of such account, and (3) a certificate in the form of
Exhibit E given by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made pursuant to and in
accordance with Rule 903 or Rule 904 of Regulation S or Rule 144 under the
Securities Act, the Trustee, as transfer agent, shall promptly deliver
appropriate instructions to the Clearing Agency, to reduce or reflect on its
records a reduction of the Rule 144A Global Note by the aggregate principal
amount of the beneficial interest in such Rule 144A Global Note to be so
exchanged or transferred from the relevant participant, and the Trustee, as
transfer agent, shall promptly deliver appropriate instructions to the Clearing
Agency concurrently with such reduction, to increase or reflect on its records
an increase of the principal amount of such Regulation S Global Note by the
aggregate principal amount of the beneficial interest in such Rule 144A Global
Note to be so exchanged or transferred, and to credit or cause to be credited to
the account of the Person specified in such instructions of a beneficial
interest in such Regulation S Global Note equal to the reduction in the
principal amount of such Rule 144A Global Note.
(c) If a holder of a beneficial interest in the Regulation S Global
Note wishes at any time to exchange its interest in such Regulation S Global
Note for an interest in the Rule 144A Global
36
Note, or to transfer its interest in such Regulation S Global Note to a
Person who wishes to take delivery thereof in the form of an interest in such
Rule 144A Global Note, such holder may, subject to the rules and procedures
of the Clearing Agency, to the extent applicable, and to the requirements set
forth in the following sentence, exchange or cause the exchange or transfer
or cause the transfer of such interest for an equivalent beneficial interest
in such Rule 144A Global Note. Upon receipt by the Principal Paying Agent, as
transfer agent, at its Corporate Trust Office in London, England of (l)
instructions given in accordance with the procedures of the Clearing Agency,
to the extent applicable, from or on behalf of a beneficial owner of an
interest in the Regulation S Global Note directing the Trustee, as transfer
agent, to credit or cause to be credited a beneficial interest in the Rule
144A Global Note in an amount equal to the beneficial interest in the
Regulation S Global Note to be exchanged or transferred, (2) a written order
given in accordance with the procedures of the Clearing Agency, to the extent
applicable, containing information regarding the account to be credited with
such increase and the name of such account, and (3) prior to or on the 40th
day after the later of the commencement of the offering of the Notes and the
relevant Issue Date (the "RESTRICTED PERIOD"), a certificate in the form of
Exhibit F given by the holder of such beneficial interest and stating that
the Person transferring such interest in such Regulation S Global Note
reasonably believes that the Person acquiring such interest in such Rule 144A
Global Note is a Qualified Institutional Buyer (as defined in Rule 144A) and
is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable securities laws of any state of
the United States or any other jurisdiction, the Trustee, as transfer agent,
shall promptly deliver appropriate instructions to the Clearing Agency to
reduce or reflect on its records a reduction of the Regulation S Global Note
by the aggregate principal amount of the beneficial interest in such
Regulation S Global Note to be exchanged or transferred, and the Trustee, as
transfer agent, shall promptly deliver appropriate instructions to the
Clearing Agency concurrently with such reduction, to increase or reflect on
its records an increase of the principal amount of such Rule 144A Global Note
by the aggregate principal amount of the beneficial interest in such
Regulation S Global Note to be so exchanged or transferred, and to credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in such Rule 144A Global Note equal to the
reduction in the principal amount of such Regulation S Global Note. After the
expiration of the Restricted Period, the certification requirement set forth
in clause (3) of the second sentence of this Section 2.7(c) will no longer
apply to such transfers.
(d) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(e) In the event that a Global Note is exchanged for Definitive Notes
in registered form without interest coupons, pursuant to Section 2.6(b), or a
Definitive Note in registered form without interest coupons is exchanged for
another such Definitive Note in registered form without interest coupons, or a
Definitive Note is exchanged for a beneficial interest in a Global Note, such
Notes may be exchanged or transferred for one another only in accordance with
such procedures as are substantially consistent with the provisions of Sections
2.7(b) and (c) above (including the certification requirements intended to
ensure that such exchanges or transfers
37
comply with Rule 144, Rule 144A or Regulation S, as the case may be) and as
may be from time to time adopted by the Company and the Trustee.
(f) Prior to the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Note may only be exchanged or transferred
in accordance with the certification requirements hereof.
(g) Each Note issued hereunder shall, upon issuance, bear the legend
set forth herein and such legend shall not be removed from such Note except as
provided in the next sentence. The legend required for a Rule 144A Note may be
removed from a Rule 144A Note if there is delivered to the Company and the
Trustee 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 and the Trustee, that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
of such Note will 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
Note another Note or Notes having an equal aggregate principal amount that does
not bear such legend. If such a legend required for a Rule 144A Note has been
removed from a Rule 144A Note as provided above, no other Note issued in
exchange for all or any part of such Note shall bear such legend, unless the
Company has reasonable cause to believe that such other Note is a "restricted
Security" within the meaning of Rule 144 and instructs the Trustee to cause a
legend to appear thereon.
38
The Initial Notes shall bear the following legend (the
"PRIVATE PLACEMENT LEGEND") on the face thereof:
THIS SECURITY OF PREEM HOLDINGS AB (PUBL) (THE "ISSUER") HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR ANY OTHER
JURISDICTION. 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 THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE BY THE
U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES 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) PURSUANT
TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO
THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND PRIOR TO
ANY OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (A) THROUGH (E) TO REQUIRE THE
TRANSFER CERTIFICATIONS REQUIRED PURSUANT TO THE INDENTURE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
(h) By its acceptance of any Note bearing the Private Placement Legend,
each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Indenture and in the Private Placement Legend and agrees
that it will transfer such Note only as provided in this Indenture.
39
Neither the Trustee nor the Principal Paying Agent shall have any
obligation or duty to monitor, determine or inquire as to compliance with any
restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any
transfers between or among Agent Members or beneficial owners of interest in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.6 or this Section 2.7. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(i) Any Initial Notes which are presented to the Registrar for exchange
pursuant to the Exchange Offer shall be exchanged for Exchange Notes of equal
principal amount upon surrender to the Registrar of the Initial Notes to be
exchanged; PROVIDED, HOWEVER, that the Initial Notes so surrendered for exchange
shall be duly endorsed and accompanied by a letter of transmittal or 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 Notes are
so surrendered for exchange, the Company shall execute, and upon receipt of the
Company Order provided for in Section 2.2, the Trustee shall authenticate and
deliver to the Holder the same aggregate principal amount of Exchange Notes as
those Initial Notes that have been surrendered.
(j) Definitive Notes shall be transferable only upon the surrender of a
Definitive Note for registration of transfer. When a Definitive Note 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 Definitive Notes are presented to
the Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Definitive Notes 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 Notes at the Registrar's or co-registrar's
request.
(k) The Company shall not be required to make, and the Registrar need
not register transfers or exchanges of, Definitive Notes (i) that has been
selected for redemption (except, in the case of Definitive Notes to be redeemed
in part, the portion thereof not to be redeemed), (ii) for a period of 15 days
prior to any date fixed for the redemption of the Notes, (iii) for a period of
15 days prior to the date fixed for selection of Notes to be redeemed in part,
(iv) for a period of 15 days prior to the Record Date with respect to any
interest payment date or (v) that the Holder of such Notes has tendered (and not
withdrawn) for repurchase in connection with a Change of Control Offer or an
Asset Sale Offer.
(l) Prior to the due presentation for registration of transfer of any
Definitive Note, the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the Person in whose name a Definitive Note
is registered as the absolute owner of such
40
Definitive Note for the purpose of receiving payment of principal, interest,
Additional Amounts, if any, or Liquidated Damages, if any, on such Definitive
Note and for all other purposes whatsoever, whether or not such Definitive
Note 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.
(m) 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 2.7 (other than in respect of an Exchange
Offer, except as otherwise provided in a Registration Rights Agreement).
(n) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Notes surrendered upon such transfer
or exchange.
(o) Holders of Initial Notes (or holders of interests therein) and
prospective purchasers designated by such Holders (or holders of interests
therein) will 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 is 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 Notes.
SECTION 2.8 REPLACEMENT NOTES. If a mutilated Definitive Note is
surrendered to the Registrar, if a mutilated Global Note is surrendered to
the Company or if the Holder of a Note claims that such Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note in such form as the Note being replaced if
the requirements of the Trustee, the Registrar and the Company are met. If
required by the Trustee, the Registrar or the Company, such Holder must
provide an indemnity bond or other indemnity, sufficient in the judgment of
the Company, the Registrar and the Trustee, to protect the Company, the
Registrar, the Trustee and any Agent from any loss which any of them may
suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note is an additional
obligation of the Company. The provisions of this Section 2.8 are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of mutilated, destroyed, lost, stolen or taken
Notes.
SECTION 2.9 OUTSTANDING NOTES. Notes outstanding at any time are
all the Notes that have been authenticated by the Trustee except those
canceled by it, those delivered to it for cancellation, those reductions in
the Global Note effected in accordance with the provisions hereof and those
described in this Section as not outstanding. Subject to Section 2.10, a Note
does not cease to be outstanding because the Company or any of its Affiliates
holds the Note.
If a Note is replaced pursuant to Section 2.8 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
BONA FIDE purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.8.
41
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest, Additional Amounts, if any
and Liquidated Damages, if any, on it cease to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent holds
cash in Euros sufficient to pay all of the principal and interest due on the
Notes payable on that date, then on and after that date such Notes cease to be
outstanding and interest, Additional Amounts, if any, and Liquidated Damages, if
any, on such Notes cease to accrue.
SECTION 2.10 TREASURY NOTES. In determining whether the Holders of
the required principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company or its Affiliates shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Notes that a Trust Officer of the Trustee actually knows are so owned shall
be disregarded.
The Company shall notify the Trustee, in writing, when it or any of its
Affiliates repurchases or otherwise acquires Notes of the aggregate principal
amount of such Notes so repurchased or otherwise acquired. The Trustee may
require an Officers' Certificate listing Notes owned by the Company, a
Subsidiary of the Company or an Affiliate of the Company.
SECTION 2.11 TEMPORARY NOTES. Until permanent Definitive Notes are
ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Definitive Notes upon receipt of a Company Order in
the form of an Officers' Certificate. The Officers' Certificate shall specify
the amount of temporary Definitive Notes to be authenticated and the date on
which the temporary Definitive Notes are to be authenticated. Temporary
Definitive Notes shall be substantially in the form of permanent Definitive
Notes but may have variations that the Company considers appropriate for
temporary Definitive Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate upon receipt of a Company Order
pursuant to Section 2.2 permanent Definitive Notes in exchange for temporary
Definitive Notes.
SECTION 2.12 CANCELLATION. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Notes surrendered to them for transfer,
exchange or payment. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent, and no one else, shall cancel and, at the
written direction of the Company, shall dispose of (subject to the record
retention requirements of the Exchange Act) all Notes surrendered for
transfer, exchange, payment or cancellation; PROVIDED, HOWEVER, that the
Trustee may, but shall not be required to, destroy such canceled Notes.
Subject to Section 2.7, the Company may not issue new Notes to replace Notes
that it has paid or delivered to the Trustee for cancellation. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Notes
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.12.
SECTION 2.13 DEFAULTED INTEREST. If the Company defaults in a
payment of interest on the Notes, it shall pay the defaulted interest, plus
(to the extent lawful) any interest
42
payable on the defaulted interest, to the Holder thereof on a subsequent
special Record 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 Note 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 2.13; PROVIDED,
HOWEVER, that in no event shall the Company deposit monies proposed to be
paid in respect of defaulted interest later than 11:00 a.m.
New York City
time on the proposed Default Interest Payment Date with respect to defaulted
interest to be paid on the Note. At least 15 days before the subsequent
special Record Date, the Company shall mail to each Holder, 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.
SECTION 2.14 CUSIP, ISIN AND COMMON CODE NUMBERS. The Company in
issuing the Notes may use a "CUSIP", "ISIN" or "COMMON CODE" number, and if
so, the Trustee shall use the CUSIP, ISIN and Common Code number in notices
of redemption or exchange as a convenience to Holders; PROVIDED, HOWEVER,
that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP, ISIN and Common Code number printed in
the notice or on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly
notify the Trustee of any change in any CUSIP, ISIN or Common Code number.
SECTION 2.15 DEPOSIT OF MONEYS. Prior to 10:00 a.m. London time on
the Business Day immediately preceding each interest payment date and
Maturity Date, the Company shall have deposited with the Trustee or its
designated Paying Agent (which shall be the Principal Paying Agent unless
otherwise notified to the Company by the Trustee) in immediately available
funds money sufficient to make cash payments, if any, due on such interest
payment date or Maturity Date, as the case may be, on all Notes then
outstanding. Such payments shall be made by the Company in a timely manner
which permits the Paying Agent to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The Company
shall, prior to 10:00 a.m. London time on the second Business Day prior to
the date on which the Principal Paying Agent receives payment, procure that
the bank effecting payment for it confirms by tested telex or SWIFT MT100
message to the Principal Paying Agent that an irrevocable payment instruction
has been given.
SECTION 2.16 CERTAIN MATTERS RELATING TO GLOBAL NOTES. (a) Members
of or participants in a Clearing Agency ("Agent Members") shall have no
rights under this Indenture with respect to any Global Note held on their
behalf by the Clearing Agency or under the Global Note, and the Clearing
Agency or its nominee may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. 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 Clearing Agency or impair, as
43
between the Clearing Agency and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any Note.
(b) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including Euroclear and Clearstream Banking and their
Agent Members and persons that may hold interests through Agent Members, to take
any action which a Holder is entitled to take under this Indenture or the Notes.
ARTICLE III
REDEMPTION
SECTION 3.1 OPTIONAL REDEMPTION. The Company may redeem all or any
portion of the Notes, upon the terms and at the redemption prices set forth
in each of the Notes. Any redemption pursuant to this Section 3.1 shall be
made pursuant to the provisions of this Article III.
SECTION 3.2 NOTICES TO TRUSTEE. If the Company elects to redeem
Initial Notes pursuant to Paragraphs 8 or 9 of such Notes or Exchange Notes
pursuant to Paragraphs 7 or 8 thereof, it shall notify the Trustee and the
Principal Paying Agent in writing of the Redemption Date and the principal
amount of Notes to be redeemed at least 15 days prior to the giving of the
notice contemplated by Section 3.4 (or such shorter period as the Trustee in
its sole discretion shall determine). The Company shall give notice of
redemption as required under the relevant paragraph of the Notes pursuant to
which such Notes are being redeemed.
SECTION 3.3 SELECTION OF NOTES TO BE REDEEMED. If less than all of
the Notes are to be redeemed at any time, selection of such Notes for
redemption will be made by the Trustee in compliance with the requirements of
the principal securities exchange, if any, on which such Notes are listed,
and/or in compliance with the requirements of each Clearing Agency, or if
such Notes are not so listed or such exchange prescribes no method of
selection and the Notes are not held through a Clearing Agency or such
Clearing Agency prescribes no method of selection, on a PRO RATA basis, by
lot or by such other method as the Trustee in its sole discretion shall deem
fair and appropriate (and in such manner as complies with applicable legal
and exchange requirements); PROVIDED, HOWEVER, that no Note of E 1,000 in
aggregate principal amount or less shall be redeemed in part. In the event of
partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes
not previously called for redemption.
SECTION 3.4 NOTICE OF REDEMPTION. At least 30 days but not more
than 60 days before a Redemption Date, the Company shall, so long as the
Notes are in global form, 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 Notes 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 Notes, in addition to such publication,
mail to Holders by first-class mail, postage prepaid, at their respective
addresses as they appear on the registration books of the Registrar. At the
Company's
44
request made at least 45 days before the Redemption Date (or such shorter
period as the Trustee in its sole discretion shall determine), the Trustee
shall give the notice of redemption in the Company's name and at the
Company's expense; PROVIDED, HOWEVER, that the Company shall deliver to the
Trustee an Officers' Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in
the following items. Each notice for redemption shall identify the Notes to
be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Prices and the amount of accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages, if any, to
be paid (subject to the right of Holders of record on the relevant Record Date
to receive interest, Additional Amounts, if any, and Liquidated Damages, if any,
due on the relevant interest payment date);
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued and unpaid interest, if any,
Additional Amounts, if any, and Liquidated Damages, if any;
(e) that, unless the Company defaults in making the redemption payment,
interest, Additional Amounts, if any, and Liquidated Damages, if any, on Notes
called for redemption cease to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Notes is to receive payment of the
Redemption Price upon surrender to the Paying Agent of the Notes redeemed;
(f) (i) if any Global Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the Redemption
Date, interest, Additional Amounts, if any, and Liquidated Damages, if any,
shall cease to accrue on the portion called for redemption, and upon surrender
of such Global Note, the Global Note with a notation on Schedule A thereof
adjusting the principal amount thereof to be equal to the unredeemed portion,
will be returned and (ii) if any Definitive Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed, and that, after the
Redemption Date, upon surrender of such Definitive Note, a new Definitive Note
or Notes in aggregate principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof, upon cancellation of the
original Note;
(g) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate principal
amount of Notes to be outstanding after such partial redemption;
(h) the paragraph of the Notes pursuant to which the Notes are to be
redeemed; and
(i) the CUSIP, ISIN or Common Code number, and that no representation
is made as to the correctness or accuracy of the CUSIP, ISIN or Common Code
number, if any, listed in such notice or printed on the Notes.
45
SECTION 3.5 EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is given in accordance with Section 3.4, Notes called for
redemption become due and payable on the Redemption Date and at the
Redemption Price plus accrued and unpaid interest, if any, Additional
Amounts, if any, and Liquidated Damages, if any. Upon surrender to the
Trustee or Paying Agent, such Notes called for redemption shall be paid at
the Redemption Price (which shall include accrued and unpaid interest
thereon, if any, Additional Amounts, if any, and Liquidated Damages, if any,
to the Redemption Date), but installments of interest, the maturity of which
is on or prior to the Redemption Date, shall be payable to Holders of record
at the close of business on the relevant Record Dates.
SECTION 3.6 DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m.
London time on the Business Day immediately preceding the Redemption Date,
the Company shall deposit with the Trustee or its designated Paying Agent
(which shall be the Principal Paying Agent unless otherwise notified to the
Company by the Trustee) cash in Euros sufficient to pay the Redemption Price
plus accrued and unpaid interest, if any, Additional Amounts, if any, and
Liquidated Damages, if any, of all Notes to be redeemed on that date. The
Paying Agent (including the Principal Paying Agent) shall promptly return to
the Company any cash in Euros so deposited which is not required for that
purpose upon the written request of the Company. The Company shall, prior to
10:00 a.m. London time on the second Business Day prior to the date on which
the Principal Paying Agent receives payment, procure that the bank effecting
payment for it confirms by tested telex or SWIFT MT100 message to the
Principal Paying Agent that an irrevocable payment instruction has been given.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages, if any,
interest, Additional Amounts and Liquidated Damages on the Notes to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or not
such Notes are presented for payment. With respect to Definitive Notes, if a
Definitive Note is redeemed on or after an interest Record Date but on or prior
to the related interest payment date, then any accrued and unpaid interest,
Additional Amounts, if any, and Liquidated Damages, if any, shall be paid to the
Person in whose name such Note was registered at the close of business on such
Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest, Additional Amounts, if any, and Liquidated
Damages, if any, shall be paid on the unpaid principal, from the Redemption Date
until such principal is paid, and to the extent lawful on any interest not paid
on such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1.
SECTION 3.7 NOTES REDEEMED IN PART. Upon surrender and
cancellation of a Definitive Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder (at the Company's
expense) a new Definitive Note equal in principal amount to the unredeemed
portion of the Definitive Note surrendered and canceled; PROVIDED, HOWEVER,
that each such Definitive Note shall be in a principal amount at maturity of
E 1,000 or an integral multiple thereof. Upon surrender of a Global Note that
is redeemed in part, the Paying Agent shall forward such Global Note to the
Trustee who shall make a notation on Schedule A thereof to reduce the
principal amount of such Global Note to an amount equal to the
46
unredeemed portion of the Global Note surrendered; PROVIDED, HOWEVER, that
each such Global Note shall be in a principal amount at maturity of
E 1,000 or an integral multiple thereof.
ARTICLE IV
COVENANTS
SECTION 4.1 PAYMENT OF NOTES. (a) The Company shall pay the
principal, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, on the Notes in the manner provided in such Notes
and this Indenture. An installment of principal of or interest on the Notes
shall be considered paid on the date it is due if the Trustee or Paying Agent
(including the Principal Paying Agent) holds prior to 10:00 a.m. London time
on that date money deposited by the Company in immediately available funds
and designated for, and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders pursuant to the terms of
this Indenture.
(b) The Company shall pay, to the extent such payments are lawful,
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and on overdue installments of interest
(without regard to any applicable grace periods), on any Additional Amounts, and
on any Liquidated Damages, from time to time on demand at the rate borne by the
Notes plus 1.5% per annum. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 4.2 MAINTENANCE OF OFFICE OR AGENCY. 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 2.3 where Notes may be surrendered for registration of transfer or
for exchange and where notices and demands to or upon the Company in respect
of the Notes 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 11.2. The Company hereby initially designates the office of CT
Corporation System, located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as
its office or agency outside The Kingdom of Sweden as required under Section
2.3 hereof. If the Notes are listed on the Luxembourg Stock Exchange and the
rules of such exchange so require, the Company will appoint Deutsche Bank
Luxembourg S.A., or such other Person located in Luxembourg and reasonably
acceptable to the Trustee, as an additional paying and transfer agent. The
Company hereby designates the Corporate Trust Office of the Trustee as one
such office or agency of the Company.
SECTION 4.3 LIMITATION ON INDEBTEDNESS. (a) The Company will not,
and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness; PROVIDED, HOWEVER, that the Company or a Restricted Subsidiary
may Incur Indebtedness if on the date thereof:
(1) the Consolidated Coverage Ratio for the Company for the Company's
most recently ended four full fiscal quarters for which internal
financial statements are
47
available immediately preceding the date on which such Indebtedness is
Incurred is at least 2.25 to 1.00; and
(2) no Default or Event of Default will have occurred and be continuing
or would occur as a consequence thereof.
(b) The first paragraph of this covenant will not prohibit the
Incurrence of the following Indebtedness:
(1) The Incurrence under one or more Credit Facilities (including
Credit Facilities constituting Acquired Debt) by the Company and any of
its Restricted Subsidiaries of Indebtedness and letters of credit;
PROVIDED that the aggregate principal amount outstanding at the time of
Incurrence under all such Credit Facilities under this clause (b)(1)
(with letters of credit being deemed to have a principal amount equal
to the maximum potential liability of the Company and its Restricted
Subsidiaries thereunder) does not exceed the Borrowing Base;
(2) Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held
by the Company or another Restricted Subsidiary; PROVIDED, HOWEVER,
that (a) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all obligations with respect to the Notes and (b) (x) any
subsequent issuance or transfer of Capital Stock or any other event
that results in any such Indebtedness being beneficially held by a
Person other than the Company or a Restricted Subsidiary of the Company
and (y) any sale or other transfer of any such Indebtedness to a Person
that is not either the Company or a Restricted Subsidiary of the
Company shall be deemed, in each case, to constitute an Incurrence of
such Indebtedness by the Company or such Subsidiary, as the case may
be;
(3) Indebtedness represented by: (a) the Notes (including notes issued
in exchange for the Notes pursuant to the Exchange Offer but excluding
Additional Notes), (b) any Indebtedness (other than the Indebtedness
described in clause (1) or (2)) outstanding on the Closing Date and (c)
any Refinancing Indebtedness Incurred in respect of any Indebtedness
described in this clause (3), clause (4), Incurred as Additional Notes
or Incurred pursuant to paragraph (a), above;
(4) Indebtedness of a Restricted Subsidiary Incurred and outstanding on
the date on which such Restricted Subsidiary was acquired by the
Company (other than Indebtedness Incurred (a) to provide all or any
portion of the funds 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
or (b) otherwise in connection with, or in contemplation of, such
acquisition); PROVIDED, HOWEVER, that at the time such Restricted
Subsidiary is acquired by the Company, the Company would have been able
to Incur E 1.00 of additional Indebtedness pursuant to Section
4.3(a), above, after giving effect to the Incurrence of such
Indebtedness pursuant to this clause (4);
48
(5) Indebtedness under Currency Agreements, Interest Rate Agreements
and Oil Commodities Contracts; PROVIDED, HOWEVER, that such Currency
Agreements, Interest Rate Agreements and Oil Commodities Contracts (i)
are entered into for BONA FIDE hedging purposes of the Company or its
Restricted Subsidiaries (as determined in good faith by the Board of
Directors or senior management of the Company), (ii) correspond at the
time of Incurrence in terms of notional amount, duration, currencies
and interest rates, as applicable, substantially to Indebtedness of the
Company or its Restricted Subsidiaries Incurred without violation of
this Indenture or to business transactions of the Company or its
Restricted Subsidiaries on customary terms entered into in the ordinary
course of business and (iii) do not increase Indebtedness of the
Company or any Restricted Subsidiary outstanding at any time other than
as a result of fluctuations in foreign currency exchange rates,
interest rates or prices of crude oil, other feedstocks and refined
petroleum products, as the case may be;
(6) Indebtedness represented by Capitalized Lease Obligations, mortgage
financings or purchase money obligations with respect to assets other
than Capital Stock or other Investments, in each case incurred for the
purpose of financing all or any part of the purchase price or cost of
construction or improvements of property used in the business of the
Company or such Restricted Subsidiary, in an aggregate principal amount
not to exceed E 20.0 million at any time outstanding;
(7) Indebtedness Incurred in respect of workers' compensation claims
and self-insurance obligations provided by the Company or a Restricted
Subsidiary in the ordinary course of business;
(8) Indebtedness Incurred in respect of performance, surety, appeal and
similar bonds, bankers' acceptances, letters of credit or bills of
exchange provided by the Company or a Restricted Subsidiary in the
ordinary course of business and that do not secure other Indebtedness
and that, when added to all other Indebtedness Incurred pursuant to
this clause (8) and then outstanding, does not exceed E 10.0 million;
(9) Indebtedness arising from agreements of the Company or a Restricted
Subsidiary providing for indemnification, adjustment of purchase price
or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or Capital Stock of a
Restricted Subsidiary, PROVIDED that the maximum aggregate liability in
respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and its Restricted
Subsidiaries in connection with such disposition;
(10) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except
in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business, PROVIDED, HOWEVER, that such
Indebtedness is extinguished within five business days of Incurrence;
(11) Indebtedness of the Company owing to Corral; PROVIDED, HOWEVER,
that such Indebtedness is expressly subordinated to the prior payment
in full in cash of all obligations with respect to the Notes pursuant
to or on the same terms as the intercreditor
49
arrangements existing on the Closing Date in respect of the existing
Shareholder Loans, is without maturity, and carries no interest; and
(12) Indebtedness of the Company in an aggregate outstanding principal
amount which, when taken together with the principal amount of all
other Indebtedness Incurred pursuant to this clause (12) and then
outstanding, will not exceed E 25.0 million.
(c) The Company will not Incur any Indebtedness under Section 4.3(b),
above, if the proceeds thereof are used, directly or indirectly, to refinance
any Subordinated Obligations of the Company unless such Indebtedness will be
subordinated to the Notes to at least the same extent as such Subordinated
Obligations. No Restricted Subsidiary will incur any Indebtedness if the
proceeds thereof are used to refinance Indebtedness of the Company. The Company
will not permit any Restricted Subsidiary to issue any Preferred Stock to any
Person other than the Company or a Wholly-Owned Subsidiary of the Company.
(d) For purposes of determining compliance with, and the outstanding
principal amount of any particular Indebtedness Incurred pursuant to and in
compliance with, this covenant:
(1) in the event that Indebtedness meets the criteria of more than one
of the types of Indebtedness described in Section 4.3(b), above, the
Company, in its sole discretion, will designate such item of
Indebtedness on the date of Incurrence, and may, from time to time,
redesignate such item of Indebtedness, and only be required to include
the amount and type of such Indebtedness in one of such clauses; and
(2) if Indebtedness is issued at a price less than the principal amount
thereof, the amount of such Indebtedness for purposes of the above
limitations shall equal the amount of the liability as determined in
accordance with Swedish GAAP; accrual of interest, accrual of
dividends, the accretion of accreted value and the payment of interest
in the form of additional Indebtedness and the payment of dividends in
the form of additional shares of Preferred Stock will not be deemed to
be an incurrence of Indebtedness for purposes of this covenant.
SECTION 4.4 LIMITATION ON RESTRICTED PAYMENTS (a) The Company will
not, and will not permit any of its Restricted Subsidiaries, directly
or indirectly, to:
(1) 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, mandatory repurchase or final
maturity, in each case due within one year of the date of purchase,
repurchase or acquisition) or make any payment on the Shareholder
Loans; or
(2) make any Investment (other than a Permitted Investment) in
any Person;
(any such purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment referred to in clauses (1) or (2) being herein referred
to as a "Restricted Payment"), if at the time the Company or such Restricted
Subsidiary makes such Restricted Payment:
50
(a) a Default shall have occurred and be continuing (or
would result therefrom); or
(b) the Company is not able to incur an additional E 1.00
of Indebtedness pursuant to Section 4.3(a) hereof after giving
effect to such Restricted Payment; or
(c) the aggregate amount of such Restricted Payment and all
other Restricted Payments and Restricted Dividends and
Distributions declared or made subsequent to the Closing Date
would exceed the sum of:
(i) 50% of Consolidated Net Income during the period
(treated as one accounting period) from the Closing
Date to the end of the most recent fiscal quarter
ending prior to the date of such Restricted Payment
as to which internal financial statements are
available (or, in case such Consolidated Net Income
is a deficit, minus 100% of such deficit);
(ii) the aggregate Net Cash Proceeds received by the
Company from the issue or sale of its Capital Stock
(other than Disqualified Stock) or other capital
contributions subsequent to the Closing Date (other
than Net Cash Proceeds received from an issuance or
sale of such Capital Stock to a Subsidiary of the
Company or an employee stock ownership plan or
similar trust to the extent such sale to an employee
stock ownership plan or similar trust is financed by
loans from or guaranteed by the Company or any
Restricted Subsidiary unless such loans have been
repaid with cash on or prior to the date of
determination);
(iii) the amount by which Indebtedness of the Company
(other than amounts under the Shareholder Loans) is
reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Subsidiary of
the Company) subsequent to the Closing Date of any
Indebtedness of the Company 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 upon such conversion or exchange);
(iv) the amount equal to the net reduction in
Restricted Investments made by the Company or any of
its Restricted Subsidiaries in any Person resulting
from:
(A) repurchases or redemptions of such
Restricted Investments by such Person,
proceeds realized upon the sale of such
Restricted Investment to unaffiliated
purchasers, repayments of loans or advances
or other transfers of assets (including by
way of dividend or distribution) by such
Person to the Company or any Restricted
Subsidiary of the Company, or
51
(B) 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
in each case under this clause (iv) was
included in the calculation of the amount of
Restricted Payments; PROVIDED, HOWEVER, that
no amount will be included under this clause
(iv) to the extent it is already included in
Consolidated Net Income; and
(v) the sum of E 10.0 million.
(b) The provisions of Section 4.4(a) will not prohibit:
(1) any purchase or redemption of Capital Stock or Subordinated
Obligations of the Company 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 similar
trust to the extent such sale to an employee stock ownership plan or
similar trust is financed by loans from or guaranteed by the Company or
any Restricted Subsidiary unless such loans have been repaid with cash
on or prior to the date of determination); PROVIDED, HOWEVER, that (i)
such purchase or redemption will be excluded in subsequent calculations
of the amount of Restricted Payments and (ii) the Net Cash Proceeds
from such sale will be excluded from clause (4)(c)(ii) of the preceding
subsection (a);
(2) any purchase or redemption of Subordinated Obligations of the
Company (other than Shareholder Loans) made by exchange for, or out of
the proceeds of, the substantially concurrent sale of, Subordinated
Obligations of the Company that qualifies as Refinancing Indebtedness
permitted to be incurred pursuant to clause (b)(3) of Section 4.3
hereof; PROVIDED, HOWEVER, that such purchase or redemption will be
excluded in subsequent calculations of the amount of Restricted
Payments;
(3) so long as no Default or Event of Default has occurred and is
continuing, any purchase or redemption of Subordinated Obligations
(other than Shareholder Loans) from Net Available Cash to the extent
permitted under Section 4.14 hereof; PROVIDED, HOWEVER, that such
purchase or redemption will be excluded in subsequent calculations of
the amount of Restricted Payments;
(4) dividends paid within 60 days after the date of declaration if at
such date of declaration such dividend would have complied with this
provision and Section 6.1(11) hereof; PROVIDED, HOWEVER, that such
dividends will be included in subsequent calculations of the amount of
Restricted Payments and Restricted Dividends and Distributions except
that, with respect to a cash dividend of SEK1,000 million pursuant to
the group contribution declared on February 20, 2001, such dividend
will not be subject to the preceding 60-day requirement nor will it be
included in subsequent calculations of the amount of Restricted
Payments;
52
(5) so long as no Default or Event of Default has occurred and is
continuing, the purchase, redemption or other acquisition, cancellation
or retirement for value of Capital Stock, or options, warrants, equity
appreciation rights or other rights to purchase or acquire Capital
Stock of the Company or any Restricted Subsidiary of the Company or any
parent of the Company held by any existing or former employees or
management of the Company or any Subsidiary of the Company or their
assigns, estates or heirs, in each case in connection with the
repurchase provisions under employee stock option or stock purchase
agreements or other agreements to compensate management employees;
PROVIDED that such redemptions or repurchases pursuant to this clause
will not exceed E 2.5 million in the aggregate during any calendar
year (with unused amounts in any calendar year being carried over to
succeeding calendar years) and E 5.0 million in the aggregate for
all such redemptions and repurchases; PROVIDED, HOWEVER, that the
amount of any such repurchase or redemption will be included in
subsequent calculations of the amount of Restricted Payments;
(6) repurchases of Capital Stock deemed to occur upon the exercise of
stock options if such Capital Stock represents a portion of the
exercise price thereof or withholding taxes paid thereon; PROVIDED,
HOWEVER, that such repurchases will be excluded from subsequent
calculations of the amount of Restricted Payments;
(7) so long as no Default or Event of Default has occurred and is
continuing, the Permitted Preem Loan Payment; PROVIDED, HOWEVER, that
the Permitted Preem Loan Payment will be excluded from subsequent
calculations of the amount of Restricted Payments; and
(8) so long as no Event of Default has occurred and is continuing, any
non-cash payment recorded in the books of the Company as paid or
payable to Corral or deemed for tax or accounting purposes to be paid
or payable to Corral as a result of the group contribution (which
effects a book-entry transfer to Corral recorded as a "group
contribution") to effect consolidation of accounts for Swedish tax
purposes, consistent with past practice between Corral and Preem, to
the extent, but only to the extent, that Corral simultaneously makes a
shareholder loan in the same amount to the Company on terms similar to
those of the Shareholder Loans (including those in favor of the Trustee
on behalf of the holders of Notes on the Closing Date); PROVIDED,
HOWEVER, that such payment or deemed payment will be excluded in
subsequent calculations of the amount of Restricted Payments.
The amount of all Restricted Payments (other than cash) and in-kind Restricted
Dividends and Distributions shall be the fair market value on the date of such
Restricted Payment of the asset(s) or securities proposed to be paid,
transferred or issued by the Company or such Restricted Subsidiary, as the case
may be, pursuant to such Restricted Payment. The fair market value of any cash
Restricted Payment and in-kind Restricted Dividends and Distributions shall be
its face amount and any non-cash Restricted Payment shall be determined
conclusively by the Board of Directors of the Company acting in good faith whose
resolution with respect thereto shall be delivered to the Trustee. Not later
than the date of making any Restricted Payment or Restricted Dividends and
Distributions, the Company shall deliver to the Trustee an Officers' Certificate
stating that such
53
Restricted Payment or Restricted Dividend or Distribution is permitted and
setting forth the basis upon which the calculations required by Section 4.4
hereof were computed.
SECTION 4.5 CORPORATE EXISTENCE. Except as otherwise permitted by
Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership, limited liability or other existence of each of its
Restricted Subsidiaries in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Restricted
Subsidiary and the rights (charter and statutory) of the Company and each of
its Restricted Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be
required to preserve any such right, or the corporate, partnership, limited
liability or other existence of any Restricted Subsidiary, if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and each of
its Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not, and will not be, adverse in any material respect to the Holders.
SECTION 4.6 PAYMENT OF TAXES AND OTHER CLAIMS. The Company shall
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all material taxes, assessments and governmental
charges levied or imposed upon it or any of its Restricted Subsidiaries or
upon the income, profits or property of it or any of its Restricted
Subsidiaries and (ii) all lawful claims for labor, materials and supplies
which, in each case, if unpaid, might by law become a material liability or
Lien upon the property of it or any of its Restricted Subsidiaries; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which appropriate provision has been made.
SECTION 4.7 MAINTENANCE OF PROPERTIES AND INSURANCE. (a) The
Company shall cause all material properties owned by or leased by it or any
of its Restricted Subsidiaries useful and necessary to the conduct of its
business or the business of any of its Restricted Subsidiaries to be improved
or maintained and kept in normal condition, repair and working order and
shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in its judgment may be
necessary, so that the business carried on in connection therewith may be
properly conducted at all times; PROVIDED, HOWEVER, that nothing in this
Section 4.7 shall prevent the Company or any of its Restricted Subsidiaries
from discontinuing the use, operation or maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal
is, in the judgment of the Board of Directors or of the board of directors of
any Restricted Subsidiary of the Company concerned, or of an officer (or
other agent employed by the Company or of any of its Subsidiaries) of the
Company or any of its Restricted Subsidiaries having managerial
responsibility for any such property, desirable in the conduct of the
business of the Company or any Restricted Subsidiary of the Company, and if
such discontinuance or disposal is not adverse in any material respect to the
Holders.
(b) To the extent available at commercially reasonable rates, the
Company shall maintain, and shall cause its Subsidiaries to maintain, insurance
with responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are customarily carried by similar businesses of similar size.
54
SECTION 4.8 LIMITATION ON SHAREHOLDER LOANS. Except as may be
permitted by Section 4.4 hereof, neither the Company nor any Restricted
Subsidiary will at any time repay any principal amount of the Shareholder
Loans if, as a result thereof, the aggregate amount of such Shareholder Loans
would be less than the sum of such Shareholder Loans on the Closing Date or
any date thereafter, nor will the Company at any time amend any Shareholder
Loan to provide for intercreditor arrangements any less favorable to the
Trustee, on behalf of the Holders of the Notes than those existing on the
Closing Date in respect of the existing Shareholder Loans (including with
respect to maturity and payment of interest).
SECTION 4.9 COMPLIANCE WITH LAWS. The Company shall comply, and
shall cause each of its Subsidiaries to comply, with all applicable statutes,
rules, regulations, orders of the relevant jurisdiction in which they are
incorporated and/or in which they carry on business, all political
subdivisions thereof, and of any relevant governmental regulatory authority,
in respect of the conduct of their respective businesses and the ownership of
their respective properties, except for such noncompliances as would not in
the aggregate have a material adverse effect on the financial condition or
results of operations of the Company and its Subsidiaries taken as a whole.
SECTION 4.10 LIMITATION ON LIENS. The Company will not, and will
not permit any of its Restricted Subsidiaries to, directly or indirectly,
create, Incur or suffer to exist any Lien (other than Permitted Liens) upon
any of its property or assets (including Capital Stock), whether owned on the
date of this Indenture or thereafter acquired, securing any Indebtedness,
unless contemporaneously therewith effective provision is made to secure the
Indebtedness due under this Indenture and the Notes equally and ratably with
(or prior to in the case of Liens with respect to Subordinated Obligations of
the Company) the Indebtedness secured by such Lien for so long as such
Indebtedness is so secured; PROVIDED that in no event may any portion of the
obligations owed under any Shareholder Loan be secured.
SECTION 4.11 WAIVER OF STAY; EXTENSION OR USURY LAWS. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all or any portion
of the principal of and/or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect
the covenants or the performance of this Indenture, and (to the extent that
it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
SECTION 4.12 LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Company
will not, and will not permit any of its Restricted Subsidiaries to, enter into
any Sale/Leaseback Transaction UNLESS:
(1) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Sale/Leaseback Transaction
at least equal to the fair market value (as determined in good faith
by, and evidenced by a resolution of, the Board
55
of Directors of the Company delivered to the Trustee) of the property
subject to such transaction;
(2) the Company or such Restricted Subsidiary with respect thereto
could have Incurred Indebtedness in an amount equal to the Attributable
Indebtedness in respect of such Sale/Leaseback Transaction pursuant to
Section 4.3 hereof;
(3) the Company or such Restricted Subsidiary would be permitted to
create a Lien on the property subject to such Sale/Leaseback
Transaction without securing the Notes by Section 4.10 hereof; and
(4) the Sale/Leaseback Transaction is treated as an Asset Disposition
and all of the conditions herein described in Section 4.14 hereof
(including the provisions concerning the application of Net Available
Cash) are satisfied with respect to such Sale/Leaseback Transaction,
treating all of the consideration received in such Sale/Leaseback
Transaction as Net Available Cash for purposes of such covenant.
SECTION 4.13 LIMITATION ON RESTRICTIONS ON DISTRIBUTIONS FROM
RESTRICTED SUBSIDIARIES. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or permit to exist or
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock
or pay any Indebtedness or other obligations owed to the Company or any
Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted
Subsidiary; or
(3) transfer any of its property or assets to the Company or any
Restricted Subsidiary.
The preceding provisions will not prohibit:
(a) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the date hereof (including,
without limitation, pursuant hereto);
(b) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement relating to any
Indebtedness Incurred by a Restricted Subsidiary on or prior
to the date on which such Restricted Subsidiary was acquired
by the Company (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the
funds utilized to consummate, the transaction or series of
related transactions pursuant to which such Restricted
Subsidiary became a Restricted Subsidiary or was acquired by
the Company or in contemplation thereof) and outstanding on
such date;
(c) any encumbrance or restriction with respect to a
Restricted Subsidiary pursuant to an agreement effecting a
refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (a) or (b) of this paragraph or this
clause (c) or contained in any amendment to an agreement
referred to in clause (a) or (b) of this paragraph or this
clause (c); PROVIDED, HOWEVER, that the
56
encumbrances and restrictions with respect to such Restricted
Subsidiary contained in any such agreement or amendment are no
more restrictive than those encumbrances and restrictions
contained in such agreements referred to in clauses (a) and
(b), above;
(d) in the case of clause (3), above, any encumbrance or
restriction:
(i) that restricts in a customary manner the
subletting, assignment or transfer of any property or
asset that is subject to a lease, license or similar
contract, or the assignment or transfer of any such
lease, license or other contract;
(ii) contained in mortgages, pledges or other
security agreements securing Indebtedness of the
Company or a Restricted Subsidiary to the extent such
encumbrances or restrictions restrict the transfer of
the property subject to such mortgages, pledges or
other security agreements; PROVIDED that such
mortgage, pledge or other security agreement is
permitted under this Indenture; or
(iii) pursuant to customary provisions restricting
dispositions of real property interests set forth in
any reciprocal easement agreements of the Company or
any Restricted Subsidiary;
(e) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the
nature described in clause (3), above, on the property so
acquired;
(f) any restriction with respect to a Restricted Subsidiary
(or any of its property or assets) imposed pursuant to an
agreement entered into for the direct or indirect sale or
disposition of all or substantially all the Capital Stock or
assets of such Restricted Subsidiary (or the property or
assets that are subject to such restriction) pending the
closing of such sale or disposition; and
(g) encumbrances or restrictions arising or existing by reason
of applicable law or any applicable rule, regulation or order.
SECTION 4.14 LIMITATION ON SALES OF ASSETS AND SUBSIDIARY STOCK.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries
to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary receives consideration at
the time of such Asset Disposition at least equal to the fair market
value, as determined in good faith by the Board of Directors of the
Company (including as to the value of all non-cash consideration), of
the shares and assets subject to such Asset Disposition;
(2) at least 75% of the consideration thereof received by the Company
or such Restricted Subsidiary is in the form of cash or Cash
Equivalents; and
57
(3) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied, at the election of the Company, by the Company
or such Restricted Subsidiary, as the case may be:
(i) FIRST, to the extent the Company or any
Restricted Subsidiary, as the case may be, elects (or
is required by the terms of any Senior Indebtedness),
to prepay, repay or purchase Senior Indebtedness or
Indebtedness (other than any Preferred Stock lacking
rights to preferential treatment in the event of a
bankruptcy, insolvency or reorganization) of a
Restricted Subsidiary (in each case other than
Indebtedness owed to the Company or an Affiliate of
the Company) within 360 days from the later of the
date of such Asset Disposition or the receipt of such
Net Available Cash; PROVIDED, HOWEVER, that, in
connection with any prepayment, repayment or purchase
of Indebtedness pursuant to this clause (a), the
Company or such Restricted Subsidiary will retire
such Indebtedness and will cause the related
commitment (if any) to be permanently reduced in an
amount equal to the principal amount so prepaid,
repaid or purchased; and
(ii) SECOND, to the extent of the balance of such Net
Available Cash after application in accordance with
clause (a), to the extent the Company or such
Restricted Subsidiary elects, (A) to invest in
Additional Assets or (B) to repay Indebtedness
Incurred prior to such Asset Disposition and used to
acquire Additional Assets in contemplation of such
Asset Disposition within 360 days, in the case of
either (A) or (B), above, from the later of the date
of such Asset Disposition or the receipt of such Net
Available Cash;
PROVIDED, HOWEVER, that, in no event will the Company make, or permit any of its
Restricted Subsidiaries to make, any Asset Disposition of all or substantially
all of the property or assets of Preem Raffinaderi AB or Skandinaviska
Raffinaderi AB Scanraff (or all or substantially all of the Capital Stock of any
of such Person), directly or indirectly (including through the sale of the
Capital Stock of any Person which holds such assets), including, without
limitation, any series of related Asset Dispositions that are part of a common
plan, unless, if the Company or such Restricted Subsidiary chooses to invest in
Additional Assets or repay Indebtedness pursuant to Section 4.14(a)(3)(ii)
above, such Additional Assets are located primarily in Sweden or, if such
Additional Assets are shares of Capital Stock of a Restricted Subsidiary, such
Restricted Subsidiary must be based in, and its business must be conducted
primarily in, Sweden.
Any Net Available Cash from Asset Dispositions that is not applied or
invested as provided in the preceding Section 4.14(a)(3)(i) or Section
4.14(a)(3)(ii) will be deemed to constitute "Excess Proceeds." On the 361st day
after an Asset Disposition, if the aggregate amount of Excess Proceeds exceeds
E 10.0 million, the Company will be required to make an offer ("Asset Sale
Offer") to all Holders of Notes and to the extent required by the terms thereof,
to all holders of other Indebtedness (other than Subordinated Obligations)
outstanding with similar provisions requiring the Company to make an offer to
purchase such Indebtedness with the proceeds from any Asset Disposition ("Pari
Passu Notes"), to purchase the maximum
58
principal amount of Notes and any such Pari Passu Notes to which the Asset
Sale Offer applies that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the principal amount
thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of purchase (and subject to the right
of Holders of record on a Record Date to receive interest on the relevant
interest payment date, Additional Amounts, if any, and Liquidated Damages, if
any, in respect thereof), in accordance with the procedures set forth herein
or the agreements governing the Pari Passu Notes, as applicable. To the
extent that the aggregate amount of Notes and Pari Passu Notes so validly
tendered and not properly withdrawn pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company may use any remaining Excess Proceeds
for general corporate purposes (or to repurchase Subordinated Obligations).
If the aggregate principal amount of Notes surrendered by Holders thereof and
holders of other Pari Passu Notes surrendered by holders or lenders thereof,
collectively, exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes and Pari Passu Notes to be purchased on a PRO RATA basis on the
basis of the aggregate principal amount of tendered Notes and Pari Passu
Notes. Upon completion of such Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
The Asset Sale Offer will remain open for a period of 20 Business Days
following its commencement, except to the extent that a longer period is
required by applicable law (the "Asset Sale Offer Period"). No later than five
Business Days after the termination of the Asset Sale Offer Period (the "Asset
Sale Purchase Date"), the Company will purchase the principal amount of Notes
and Pari Passu Notes required to be purchased pursuant to this covenant (the
"Asset Sale Offer Amount") or, if less than the Asset Sale Offer Amount has been
so validly tendered, all Notes and Pari Passu Notes validly tendered in response
to the Asset Sale Offer.
If the Asset Sale Purchase Date is on or after a Record Date and on or
before the related interest payment date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of
business on such Record Date, and no additional interest will be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
On or before the Asset Sale Purchase Date, the Company will, to the
extent lawful, accept for payment, on a PRO RATA basis to the extent necessary,
the Asset Sale Offer Amount of Notes and Pari Passu Notes or portions thereof so
validly tendered and not properly withdrawn pursuant to the Asset Sale Offer, or
if less than the Asset Sale Offer Amount has been validly tendered and not
properly withdrawn, all Notes and Pari Passu Notes so validly tendered and not
properly withdrawn. The Company will deliver to the Trustee an Officers'
Certificate stating that such Notes or portions thereof were accepted for
payment by the Company in accordance with the terms of this covenant and, in
addition, the Company will deliver all certificates and notes required, if any,
by the agreements governing the Pari Passu Notes. The Company or the applicable
Paying Agent, as the case may be, will promptly (but in any case not later than
five Business Days after the Asset Sale Purchase Date) mail or deliver to each
tendering Holder of Notes or holder or lender of Pari Passu Notes, as the case
may be, an amount equal to the purchase price of the Notes or Pari Passu Notes
so validly tendered and not properly withdrawn by such holder or lender, as the
case may be, and accepted by the Company for purchase, and the Company will
promptly issue a new Note, and the Trustee, upon delivery of an Officers'
Certificate from the Company, will authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion of
the Note surrendered. In
59
addition, the Company will take any and all other actions required by the
agreements governing the Pari Passu Notes. Any Note not so accepted will be
promptly mailed or delivered by the Company to the Holder thereof.
For the purposes of this covenant, the following will be deemed to be
cash:
(1) the assumption by the transferee of Indebtedness (other than
Subordinated Obligations) of the Company or any Restricted Subsidiary
of the Company and the release of the Company or such Restricted
Subsidiary from all liability on such Indebtedness in connection with
such Asset Disposition (in which case the Company will, without further
action, be deemed to have applied such deemed cash to Indebtedness in
accordance with clause 3(i), above); and
(2) securities, notes or other obligations received by the Company or
any Restricted Subsidiary of the Company from the transferee that are
promptly converted by the Company or such Restricted Subsidiary into
cash.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries will be permitted to consummate an Asset Disposition without
complying with clauses (2) and (3) of the first paragraph of this Section 4.14
if at least 75% of the consideration received by the Company and its Restricted
Subsidiaries from such Asset Disposition constitutes Related Business Assets,
cash and Cash Equivalents; PROVIDED that (i) any consideration constituting cash
or Cash Equivalents received by the Company or any of its Restricted
Subsidiaries in connection with any Asset Disposition permitted to be
consummated pursuant to this sentence shall constitute Net Available Cash
subject to the provisions of this covenant, including, without limitation,
clause (3) of the first paragraph hereof and (ii) if the Company or one of its
Restricted Subsidiaries receives as such Related Business Assets equity
interests in a Person, such Person shall constitute a Restricted Subsidiary of
the Company; PROVIDED, FURTHER, HOWEVER, that, in no event will the Company
make, or permit any of its Restricted Subsidiaries to make, any Asset
Disposition of all or substantially all of the property or assets of Preem
Raffinaderi AB or Skandinaviska Raffinaderi AB Scanraff (or all or substantially
all of the Capital Stock of any of such Person), directly or indirectly
(including through the sale of the Capital Stock of any Person which holds such
assets), including, without limitation, any series of related Asset Dispositions
that are part of a common plan, unless the Company or such Restricted Subsidiary
receives as consideration therefor either (i) cash which is immediately invested
in Additional Assets, (ii) Additional Assets or (iii) a combination thereof,
which Additional Assets are located primarily in Sweden or, if such Additional
Assets are shares of Capital Stock of a Restricted Subsidiary, such Restricted
Subsidiary must be based in, and its business must be conducted primarily in,
Sweden.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant hereto. To
the extent that the provisions of any securities laws or regulations conflict
with provisions of this covenant, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations hereunder by virtue thereof.
60
For the avoidance of doubt, no obligation under a Shareholder Loan may
be repaid with the Net Available Cash from any Asset Disposition under any
circumstances.
SECTION 4.15 LIMITATION ON AFFILIATE TRANSACTIONS. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, enter into or conduct any transaction or series of related
transactions (including the purchase, sale, lease or exchange of any property
or the rendering of any service) with any Affiliate of the Company or a
Restricted Subsidiary (an "Affiliate Transaction") unless:
(1) the terms of such Affiliate Transaction are no less favorable to
the Company or such Restricted Subsidiary, as the case may be, than
those that could be obtained in a comparable transaction at the time of
such transaction in arms'-length dealings with a Person who is not such
an Affiliate;
(2) in the event such Affiliate Transaction involves an aggregate
amount in excess of E 5.0 million, the terms of such transaction
have been approved by a majority of the members of the Board of
Directors of the Company and by a majority of the members of such Board
having no personal stake in such transaction, if any (and such majority
or majorities, as the case may be, determines that such Affiliate
Transaction satisfies the criteria in (1), above); and
(3) in the event such Affiliate Transaction involves an aggregate
amount in excess of E 10.0 million (or an amount in excess of
E 5.0 million and a majority of the members of the Board of
Directors of the Company has a personal interest in such transaction),
the Company has received a written opinion from a major independent
investment banking firm of internationally recognized standing that
such Affiliate Transaction is fair to the Company or such Restricted
Subsidiary, as the case may be, from a financial point of view.
(b) The foregoing Section 4.15(a) will not apply to:
(1) any Restricted Payment (other than Restricted Investments
(excluding Shareholder Loans made pursuant to and in compliance with
clause (b)(8) under Section 4.4 hereof)) permitted to be made pursuant
to Section 4.4 hereof;
(2) 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 and
other reasonable fees, compensation, benefits and indemnities paid or
entered into by the Company or its Restricted Subsidiaries in the
ordinary course of business to or with officers, directors or employees
of the Company and its Restricted Subsidiaries;
(3) loans or advances to employees in the ordinary course of business
of the Company or any of its Restricted Subsidiaries and permitted
under Section 4.4 hereof;
(4) any transaction between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries;
61
(5) any issuance of Capital Stock (other than Disqualified Stock)
of the Company;
(6) any Existing Affiliate Agreements;
(7) the Permitted Preem Loan Payment; and
(8) arms'-length transactions by a Restricted Subsidiary entered into
in the ordinary course of its business with a minority shareholder of a
Restricted Subsidiary that is not a Permitted Holder or an Affiliate
thereof.
SECTION 4.16 LIMITATION ON SALES OF CAPITAL STOCK OF RESTRICTED
SUBSIDIARIES. The Company will not, and will not permit any Restricted
Subsidiary of the Company to, transfer, convey, sell, lease or otherwise
dispose of any Voting Stock of any Restricted Subsidiary or to issue any of a
Restricted Subsidiary's Voting Stock (other than, if necessary, shares of its
Voting Stock constituting directors, qualifying shares) to any Person, except:
(1) to the Company or a Restricted Subsidiary;
(2) in compliance with Section 4.14 hereof and immediately after giving
effect to such issuance or sale, such Restricted Subsidiary either
continues to be a Restricted Subsidiary or if such Restricted
Subsidiary would no longer be a Restricted Subsidiary, then the
Investment of the Company in such Person (after giving effect to such
issuance or sale) would have been permitted to be made under Section
4.4 hereof as if made on the date of such issuance or sale; or
(3) Voting Stock issued to existing shareholders of Restricted
Subsidiaries that are not Wholly-Owned Subsidiaries; PROVIDED that such
Voting Stock is issued PRO RATA on the basis of the number of shares
held by such existing shareholders.
Notwithstanding the foregoing, the Company may sell all the Voting Stock of a
Subsidiary as long as the Company is in compliance with the terms of Section
4.14 hereof.
SECTION 4.17 SEC REPORTS. Notwithstanding that the Company may not
be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, for so long as any Notes are outstanding, to the extent
permitted by the Exchange Act, the Company will file with the Commission, and
provide the Trustee and the Holders of the Notes with, (i) all annual and
quarterly financial information that would be required to be filed on a Form
20-F and 10-Q (or any successor forms) as if the Company were required to
file such forms and, with respect to the annual financial information, a
report thereon by the Company's certified independent accountants 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 (A)
quarterly financial information for the first and third fiscal quarters need
not contain any reconciliation to generally accepted accounting principles in
the United States but must be prepared in accordance with Swedish GAAP, (B)
such quarterly information shall be furnished within 60 days of the end of
the fiscal quarter of the Company and may be provided in a report on a Form
6-K, (C) such annual information shall be furnished within 120 days of the
end of the fiscal year of the Company and (D) such information that would be
required to be contained in a report of Form 8-K may be provided in a report
on Form 6-K but must be submitted promptly. In
62
addition, whether or not required by the rules and regulations of the
Commission, the Company will file a copy of all such information and reports
with the Commission for public availability (unless the Commission will not
accept such a filing). The Company will also furnish to the Holders of Notes
and to prospective investors, upon the requests of such Holders and
prospective investors, any information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act so long as the Notes are not freely
transferable under the Securities Act by Persons not "affiliates" under the
Securities Act.
SECTION 4.18 LIMITATION ON LINES OF BUSINESS. The Company will
not, and will not permit any Restricted Subsidiary to, engage in any business
other than a Related Business, except for any business other than a Related
Business, that, if aggregated together in one legal entity with all other
such businesses that are not Related Businesses, would not cause such entity
to constitute or become a Significant Subsidiary.
SECTION 4.19 CHANGE OF CONTROL. If a Change of Control occurs,
each Holder of a Note will have the right to require the Company to
repurchase all or any part (equal to E 1,000, or an integral multiple
thereof) of such Holder's Notes at a purchase price in cash equal to 101% of
the principal amount of the Notes plus accrued and unpaid interest, if any,
Additional Amounts, if any, and Liquidated Damages, if any, to the date of
purchase (subject to the right of Holders of record on the relevant Record
Date to receive interest, Additional Amounts, if any, and Liquidated Damages,
if any, on the relevant interest payment date).
Within 30 days following any Change of Control, the Company will mail a
notice (the "Change of Control Offer") to each Holder of Notes with a copy to
the Trustee (and such notice shall (i) so long as the Notes are in global form,
be published in a leading newspaper having general circulation in
New York City
(which is expected to be THE WALL STREET JOURNAL), (ii) if and so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of such stock
exchange shall so require, be published in a newspaper having a general
circulation in Luxembourg (which is expected to be the LUXEMBURGER WORT) and
(iii) in the case of Definitive Notes, in addition to such publication, be
mailed by first-class mail to each Holder's registered address) stating:
(1) that a Change of Control has occurred and that such Holder has the
right to require the Company to purchase such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any, Additional Amounts, if any,
and Liquidated Damages, if any, to the date of purchase (subject to the
right of Holders of record on a Record Date to receive interest,
Additional Amounts, if any, and Liquidated Damages, if any, on the
relevant interest payment date) (the "Change of Control Payment");
(2) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed) ("Change of
Control Payment Date");
(3) the circumstances and relevant facts regarding such Change of
Control; and
(4) the procedures determined by the Company, consistent with this
Indenture, that a Holder of Notes must follow in order to have its
Notes repurchased.
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On the Change of Control Payment Date, the Company will, to the extent
lawful:
(1) accept for payment all Notes or portions thereof (equal to
E 1,000 or an integral multiple thereof) properly tendered pursuant
to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the Change of
Control Payment in respect of all Notes or portions thereof so
tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being purchased by the
Company.
The Paying Agent will promptly mail to each Holder of Notes so tendered
the Change of Control Payment for such Notes and the Trustee will promptly
authenticate and mail (or cause to be transferred by book-entry) to each Holder
a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; PROVIDED that each such new Note will be in a principal
amount of E 1,000 or an integral multiple thereof.
If the Change of Control Payment Date is on or after an interest Record
Date and on or before the related interest payment date, any accrued and unpaid
interest, if any, will be paid to the Person in whose name a Note is registered
at the close of business on such Record Date, and no additional interest will be
payable to Holders who tender pursuant to the Change of Control Offer.
The Change of Control provisions described above will be applicable
whether or not any other provisions of this Indenture are applicable.
The Company will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
herein applicable to a Change of Control Offer made by the Company and purchases
all Notes validly tendered and not withdrawn under such Change of Control Offer.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection with the repurchase of Notes pursuant to this
covenant, including any securities laws of The Kingdom of Sweden and Luxembourg
and the requirements of the Luxembourg Stock Exchange or any other securities
exchange on which the Notes are listed. To the extent that the provisions of any
securities laws or regulations conflict with provisions hereof, the Company will
comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations described herein by virtue thereof.
The Company will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes a Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.19 applicable to a Change of Control Offer made by the Company
and repurchases all Notes validly tendered and not withdrawn under such Change
of Control Offer.
64
SECTION 4.20 ADDITIONAL AMOUNTS. At least 10 days prior to the
first date on which payment of principal, premium, if any, or interest on the
Notes is to be made, 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 4.20, the Company will
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, premium, if any, or interest on the Notes (whether
or not in the form of Definitive Notes) shall be made to the Holders 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 States, The United
Kingdom of Sweden or any jurisdiction in which the Company or any Successor
Company is organized or is otherwise resident for tax purposes or any
political subdivision thereof or any authority having power to tax therein or
any jurisdiction from or through which payment is made (each, a "RELEVANT
TAXING JURISDICTION"), unless the withholding or deduction of Taxes is then
required by law. If any deduction or withholding for, or on account of, any
Taxes of any Relevant Taxing Jurisdiction shall at any time be required on
any payments made by the Company with respect to the Notes, including
payments of principal, redemption price, Liquidated Damages, interest or
premium, the Company will pay to the Trustee or the Paying Agent such
additional amounts pursuant to paragraph 3 of the Initial Notes and paragraph
2 of the Exchange Notes, as applicable (the "ADDITIONAL AMOUNTS") and, if
paid to a Paying Agent other than the Trustee, shall provide the Trustee with
documentation evidencing the payment of such Additional Amounts. Copies of
such documentation shall be made available to the Holders upon request. The
Company shall indemnify the Trustee and the Paying Agent for, and hold them
harmless against, any loss, liability or expense incurred without negligence
or bad faith on their 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 4.20.
SECTION 4.21 PAYMENT OF NON-INCOME TAXES AND SIMILAR CHARGES. The
Company will 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 the Notes or
any other document or instrument referred to therein, or the receipt of any
payments with respect to the Notes, excluding any such taxes, charges or
similar levies imposed by any jurisdiction outside The Kingdom of Sweden, 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 Notes or any other such document or
instrument following the occurrence of any Event of Default with respect to
the Notes.
SECTION 4.22 COMPLIANCE CERTIFICATE; NOTICE OF DEFAULT. (a) The
Company shall deliver to the Trustee, within 120 days after the end of each
fiscal year, an Officers' Certificate stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year has been
made under the supervision of the signing Officers with a view to determining
whether it has kept, observed, performed and fulfilled, and has caused each
of its Subsidiaries to keep, observe, perform and fulfill its obligations
under this Indenture and further stating, as to each such Officer signing
such certificate, that, to the best of his or her knowledge, the Company
during such preceding fiscal year has kept, observed, performed and
fulfilled, and has caused each of its Subsidiaries to keep, observe, perform
and fulfill each and every such
65
covenant contained in this Indenture and no Default occurred during such year
and at the date of such certificate there is no Default which has occurred
and is continuing or, if such signers do know of such Default, the
certificate shall describe its status, with particularity and that, to the
best of his or her knowledge, no event has occurred and remains by reason of
which payments on the account of the principal of or interest, if any,
Additional Amounts, if any, or Liquidated Damages, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto. The Officers'
Certificate shall also notify the Trustee should the Company elect to change
the manner in which it fixes its fiscal year end. Upon becoming aware of, and
as of such time that the Company should reasonably have become aware of, a
Default, the Company also shall deliver to the Trustee, within 30 days
thereafter, written notice of any events which would constitute a Default,
their status and what action the Company is taking or proposes to take in
respect thereof.
The annual financial statements delivered pursuant to Section 4.17
shall include, so long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, a written report of the
Company's independent accountants (who shall be a firm of established
international reputation) that in conducting their audit of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Articles IV, V or VI of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
SECTION 4.23 IMPAIRMENT OF SECURITY INTEREST. Neither the Company
nor any of its Subsidiaries will take or omit to take any action which action
or omission would have the result of adversely affecting or impairing the
security interest in favor of the Trustee, on behalf of the Holders of the
Notes, with respect to the Collateral, and neither the Company nor any of its
Subsidiaries shall grant to any Person or suffer any Person (other than the
Company) to have (other than the Trustee on behalf of the Holders of the
Notes) any interest whatsoever in the Collateral other than Liens permitted
by the Security Documents. Neither the Company nor any of its Subsidiaries
will enter into any agreement or instrument that by its terms requires the
proceeds received from any sale of Collateral to be applied to repay, redeem,
defease or otherwise acquire or retire any Indebtedness of any Person, other
than pursuant hereto, to the Notes and to the Security Documents.
SECTION 4.24 SECURITY INTEREST. The Company will, and will cause
each of its Restricted Subsidiaries to, undertake to deliver or cause to be
delivered to the Trustee from time to time such other documentation,
consents, authorizations, approvals and orders in form and substance
reasonably satisfactory to the Trustee including as the Trustee shall deem
necessary or advisable to perfect or maintain the security interest in the
Collateral for the benefit of the Trustee on behalf of the Holders of the
Notes until any such Collateral is released in accordance with the terms
hereof.
SECTION 4.25 LIMITATIONS ON THE ISSUER AND PREEM. Notwithstanding
anything herein to the contrary, including Section 4.3 hereof, (i) for so
long as any Shareholder Loan from Corral is outstanding, the Company shall at
all times remain a majority-owned Subsidiary of Corral and (ii) the Company
shall not Incur any Indebtedness other than Additional Notes, other
66
public Indebtedness of a maturity not less than five years, unsecured
Indebtedness pursuant to a Credit Facility or Shareholder Loans. If the
Company at any time sells, transfers or otherwise disposes of 50% or more of
the Voting Stock of Preem, then the Company will be required to make a Change
of Control Offer to each Holder of a Note and otherwise to comply with all
the provisions set forth in Section 4.19 hereof as if such sale, transfer or
disposition was a Change of Control.
SECTION 4.26 LIMITATION ON INVESTMENT COMPANY ACTIVITIES. The
Company will not, and will not permit any of its Restricted Subsidiaries or
controlled Affiliates to, conduct its business in a fashion that would cause
the Company to become subject to regulation under the U.S. Investment Company
Act of 1940, as amended (the "Investment Company Act"). For purposes of
establishing the Company's compliance with this Section 4.26, any exemption
which is or would become available under Section 3(c)(1) or Section 3(c)(7)
of the Investment Company Act will be disregarded.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 CONSOLIDATION, MERGER, AND SALE OF ASSETS. If the
Company consolidates with or merges with or into, or conveys, transfers or
leases all or substantially all its assets to, any Person, at any time and in
any circumstance when the conditions set forth in Sections 6.1(3)(a) through
6.1(3)(f) are not satisfied, then such transaction shall consti
tute an Event
of Default.
SECTION 5.2 SUCCESSOR CORPORATION SUBSTITUTED. If any such
consolidation, merger, assignment, conveyance, lease, transfer or other
disposition is consummated without causing an Event of Default, then the
Successor Company will succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such Successor Company had been named as the Company herein, and
thereafter (except in the case of a sale, assignment, transfer, lease,
conveyance or other disposition) the predecessor corporation will be relieved
of all further obligations and covenants under this Indenture and the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT. Whenever used herein with respect
to the Notes, "EVENT OF DEFAULT" means any one of the following events which
shall have occurred and be continuing:
(1) a default in any payment of interest or Additional Amounts, if any,
or Liquidated Damages, if any, on any Note under this Indenture when
due, continued for 30 days;
67
(2) a default in the payment of principal of or premium, if any, on any
Note under this Indenture when due at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise;
(3) any consolidation of the Company with, or merger of the Company
with or into, or any conveyance, transfer or lease by the Company of
all or substantially all of its assets to any Person, UNLESS:
(a) the resulting, surviving or transferee Person (the
"Successor Company") is a corporation, partnership, trust or
limited liability company organized and existing under the
laws of the Kingdom of Sweden, any member of the European
Union as of the date of this Indenture or any state of the
United States of America or the District of Columbia and the
Successor Company (if not the Company) expressly assumes, by
supplemental indenture, executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of
the Company under the Notes and this Indenture;
(b) immediately after giving effect to such transaction (and
treating any Indebtedness that becomes an obligation of the
Successor Company or any Subsidiary of the Successor Company
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 other Default or Event of Default shall
have occurred and be continuing;
(c) immediately after giving effect to such transaction, the
Successor Company is able to Incur at least an additional
E 1.00 of Indebtedness pursuant to Section 4.3(a) hereof;
(d) the Company has 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;
(e) the Company has delivered to the Trustee opinions of tax
counsel reasonably acceptable to it stating that (A) any
payment of principal, Redemption Price or purchase price of,
interest, premium, if any, Additional Amounts, if any, and
Liquidated Damages, if any, on the Notes by the Successor
Company to a holder of Notes (or beneficial owner, if not a
holder) after the consolidation, merger, conveyance, transfer
or lease of assets will be exempt from the Taxes and (B) no
other taxes on income (including taxable capital gains) will
be payable under the laws of the Relevant Taxing Jurisdiction
by a Holder (or beneficial owner, if not a Holder) who is not
and is not deemed to be a resident of the Relevant Taxing
Jurisdiction and does not carry on a trade in the Relevant
Taxing Jurisdiction through a branch, agency or permanent
establishment to which the Notes 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 Relevant Taxing Jurisdiction) in respect
of the acquisition, ownership or disposition of Notes,
68
including the receipt of principal, interest, premium, if any,
Additional Amounts, if any, or Liquidated Damages, if any,
pursuant to such Notes; and
(f) immediately after giving effect to such transaction, the
Successor Company has Consolidated Net Worth in an amount
which is not less than the Consolidated Net Worth of the
Company immediately prior to such transaction.
For purposes of this clause (3), the sale, lease, conveyance,
assignment, transfer or other disposition of all or substantially
all of the properties and assets of one or more Subsidiaries of the
Company to a Person other than a Restricted Subsidiary, which
properties and assets, if held by the Company instead of such
Subsidiaries, would constitute all or substantially all of the
properties and assets of the Company on a consolidated basis, shall
be deemed to be the transfer of all or substantially all of the
properties and assets of the Company; PROVIDED that, if any such
sale, lease, conveyance, assignment, transfer or other disposition
is made from a Wholly-Owned Subsidiary or a Restricted Subsidiary to
a Restricted Subsidiary that is not a Wholly-Owned Subsidiary, (i)
such Restricted Subsidiary shall not be subject to any encumbrances
or restrictions described in the first paragraph of Section 4.13
hereof, (ii) the Company shall have first received a written opinion
from a major independent investment banking firm of internationally
recognized standing that such sale, lease, conveyance, assignment,
transfer or other disposition is fair to the Company from a
financial point of view, and (iii) such sale, lease, conveyance,
assignment, transfer or other disposition to such Restricted
Subsidiary shall not be deemed to be a transaction subject to
clauses (3)(a) through (3)(f) above.
Notwithstanding the foregoing clause (3)(c), (x) any Restricted
Subsidiary of the Company may consolidate with, merge into or
transfer all or part of its properties and assets to the Company and
(y) the Company may merge with an Affiliate incorporated solely for
the purpose of reincorporating the Company in another jurisdiction
to realize tax or other benefits.
(4) failure by the Company to comply for 30 days after receiving notice
by the Trustee or the Holders of 25% or more of the aggregate principal
amount of the Notes with any of its obligations under Article IV hereof
(in each case, other than a failure to purchase Notes which will
constitute an Event of Default under clause (2), above);
(5) the failure by the Company to comply for 60 days after receiving
notice by the Trustee or Holders of 25% or more of the aggregate
principal amount of the Notes with its other agreements contained in
this Indenture;
(6) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or
any of its Restricted Subsidiaries), other than Indebtedness owed to
the Company or a Restricted Subsidiary, whether such Indebtedness or
guarantee now exists, or is created after the date hereof, which
default:
69
(a) is caused by a failure to pay principal of or premium, if
any, on such Indebtedness prior to the expiration of the grace
period provided in such Indebtedness ("payment default"); or
(b) results in the acceleration of such Indebtedness
prior to its maturity (the "cross acceleration provision");
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a payment default or the maturity of which has
been so accelerated, aggregates E 10.0 million or more;
(7) (A) a court having jurisdiction in the premises enters a decree or
order for (i) relief in respect of the Company or any of its
Significant Subsidiaries or a group of Restricted Subsidiaries that,
taken together (as of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries) would
constitute a Significant Subsidiary in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestration or similar official of the Company or
any of its Significant Subsidiaries or a group of Restricted
Subsidiaries that, taken together (as of the latest audited
consolidated financial statements of the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any of
its Significant Subsidiaries or a group of Restricted Subsidiaries
that, taken together (as of the latest audited consolidated financial
statements of the Company and its Restricted Subsidiaries) would
constitute a Significant Subsidiary or (iii) the winding up or
liquidation of the affairs of the Company or any of its Significant
Subsidiaries or a group of Restricted Subsidiaries that, taken together
(as of the latest audited consolidated financial statements of the
Company and its Restricted Subsidiaries) would constitute a Significant
Subsidiary and, in each case, such decree or order shall remain
unstayed and in effect for a period of 30 consecutive days; or (B) the
Company or any of its Significant Subsidiaries or a group of Restricted
Subsidiaries that, taken together (as of the latest audited
consolidated financial statements of the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary (i) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (ii)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestration or similar
official of the Company or any of its Significant Subsidiaries or a
group of Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements of the Company and its
Restricted Subsidiaries) would constitute a Significant Subsidiary or
for all or substantially all of the property and assets of the Company
or any of its Significant Subsidiaries or a group of Restricted
Subsidiaries that, taken together (as of the latest audited
consolidated financial statements of the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary or (iii)
effects any general assignment for the benefit of creditors; or
70
(8) failure by the Company or any Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest audited
consolidated financial statements for the Company and its Restricted
Subsidiaries) would constitute a Significant Subsidiary to pay final
judgments aggregating in excess of E 15.0 million (net of any
amounts with respect to which a reputable and creditworthy insurance
company has acknowledged liability in writing); which judgments are not
paid, discharged or stayed for a period of 60 days (the "judgment
default provision");
(9) any of the Security Documents ceases to be in full force and effect
(other than in accordance with their respective terms or the terms
hereof) or any of the Security Documents ceases to give the Trustee the
Liens purported to be created thereby or any Security Document is
declared null or void;
(10) a default under the Preem Pledged Loan; or
(11) the declaration or payment by the Company or any Restricted
Subsidiary of any dividend or the making of any distribution on or in
respect of its Capital Stock, either in cash or other property
(including any payment in connection with any merger or consolidation
involving the Company or any of its Restricted Subsidiaries) except:
(a) dividends or distributions payable in its Capital Stock
(other than Disqualified Stock) or in options, warrants or
other rights to purchase such Capital Stock, PROVIDED that
such dividends or distributions are not convertible into
Indebtedness; and
(b) dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company (and, if such Restricted
Subsidiary is not a Wholly-Owned Subsidiary, to its other
holders of Capital Stock on a PRO RATA basis);
or the purchase, redemption, retirement or other acquisition for value
of any Capital Stock of the Company or any direct or indirect parent of
the Company held by Persons other than the Company or a Restricted
Subsidiary of the Company (other than in exchange for its Capital Stock
(other than Disqualified Stock));
at any time and in any circumstance when any such dividend,
distribution purchase, redemption, retirement or other acquisition for
value (together, "Restricted Dividends and Distributions") would not be
permitted under Section 4.4 hereof if each such Restricted Dividend and
Distribution constituted a Restricted Payment.
SECTION 6.2 ACCELERATION. If an Event of Default (other than an
Event of Default described in clause (7) of Section 6.1 hereof) occurs and is
continuing, the Trustee, by notice to the Company, or the Holders of at least
25% in principal amount of the outstanding Notes, by notice to the Company
and the Trustee, may, and the Trustee at the request of such Holders shall,
declare the principal of, premium, if any, accrued and unpaid interest, if
any, Additional Amounts, if any, and Liquidated Damages, if any, on all the
Notes to be due and payable. Upon such a declaration, such principal,
premium, accrued and unpaid interest, Additional Amounts and Liquidated
Damages will be due and payable immediately. In the event
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of a declaration of acceleration of the Notes because an Event of Default
described in clause (6) of Section 6.1 hereof has occurred and is continuing,
the declaration of acceleration of the Notes shall be automatically annulled
if the event of default or payment default triggering such Event of Default
pursuant to clause (6) shall be remedied or cured by the Company or a
Restricted Subsidiary of the Company or waived by the holders of the relevant
Indebtedness within 20 days after the declaration of acceleration with
respect thereto and if (1) the annulment of the acceleration of the Notes
would not conflict with any judgment or decree of a court of competent
jurisdiction and (2) all existing Events of Default, except nonpayment of
principal, premium, interest, Additional Amounts or Liquidated Damages on the
Notes that became due solely because of the acceleration of the Notes, have
been cured or waived. If an Event of Default described in clause (7) of
Section 6.1 hereof occurs and is continuing, the principal of, premium, if
any, accrued and unpaid interest, Additional Amounts, if any, and Liquidated
Damages, if any, on all the Notes will become and be immediately due and
payable without any declaration or other act on the part of the Trustee or
any Holders of Notes.
SECTION 6.3 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law
or in equity to collect the payment of principal of or, premium, if any,
interest, Additional Amounts, if any, or Liquidated Damages, if any, on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
SECTION 6.4 THE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto.
SECTION 6.5 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders of Notes is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent or subsequent
assertion or employment of any other appropriate right or remedy.
SECTION 6.6 DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders of Notes may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the Holders of Notes.
SECTION 6.7 WAIVER OF PAST DEFAULTS. Subject to Sections 6.10 and
9.2, at any time after a declaration of acceleration with respect to the
Notes as described in Section 6.1, the Holders of at least a majority in
principal amount of the outstanding Notes by written notice to the Company
and to the Trustee, may waive all past defaults (except with respect to
nonpayment of principal, premium, interest and other monetary obligations on
the Notes) and rescind and
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annul a declaration of acceleration and its consequences if (i) all existing
Events of Default, other than the nonpayment of the principal of, premium, if
any, interest and other monetary obligations on the Notes that have become
due solely by such declaration of acceleration, have been cured or waived and
(ii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction. Such waiver shall not excuse a continuing Event of
Default in the payment of interest, premium, if any, principal, Additional
Amounts, if any, or Liquidated Damages, if any, on such Note held by a
non-consenting Holder, or in respect of a covenant or a provision which
cannot be amended or modified without the consent of all Holders. The Company
shall deliver to the Trustee an Officers' Certificate stating that the
requisite percentage of Holders has consented to such waiver and attaching
copies of such consents. When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 6.8 CONTROL BY MAJORITY. Subject to Section 2.10, the
Holders of not less than a majority in principal amount of the outstanding
Notes may, by written notice to the Trustee, direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. Subject to Section 7.1,
however, the Trustee may refuse to follow any direction that conflicts with
any law or this Indenture or that the Trustee determines is unduly
prejudicial to the rights of another Holder of Notes, or that would involve
the Trustee in personal liability; PROVIDED, HOWEVER, that the Trustee may
take any other action deemed proper by the Trustee which is not inconsistent
with such direction. Prior to taking any action under this Indenture, the
Trustee will 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 6.9 LIMITATION ON SUITS. Except to enforce the right to
receive payment of principal, premium, if any, interest, Additional Amounts,
if any, or Liquidated Damages, if any, when due, no Holder of Notes may
pursue any remedy with respect to this Indenture or the Notes UNLESS:
(1) such Holder has previously given the Trustee notice that an Event
of Default is continuing;
(2) Holders of at least 25% in principal amount of the outstanding
Notes have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after
the receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the outstanding
Notes have not given the Trustee a direction that, in the opinion of the
Trustee, is inconsistent with such request within such 60-day period.
SECTION 6.10 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture (including, without limitation, Section
8.9 hereof), the right of any
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Holder to receive payment of principal of, premium, if any, interest,
Additional Amounts, if any and Liquidated Damages, if any, on a Note, on or
after the respective due dates expressed in such Note, 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 6.11 COLLECTION SUIT BY TRUSTEE. If an Event of Default in
payment of principal, premium, if any, interest, Additional Amounts, if any
or Liquidated Damages, if any, specified in clause (1) or clause (2) of
Section 6.1 occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor on the Notes for the whole amount of principal and accrued interest
remaining unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the
Notes and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.7.
SECTION 6.12 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 (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, accountants and experts) and the Holders
allowed in any judicial proceedings relating to the Company, its creditors or
its property or other obligor on the Notes, its creditors and its property
and shall be entitled and empowered to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent
and counsel, and any other amounts due the Trustee under Section 7.7. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be
secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties which the Holders of the
Notes may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise.
SECTION 6.13 PRIORITIES. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
First: to the Trustee, the Agents and their agents and attorneys for
amounts due under Section 7.7, including payment of all compensation,
fees, expense and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, interest, Additional Amounts, if any and
Liquidated Damages, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on
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the Notes for principal, premium, if any, interest, Additional Amounts,
if any, and Liquidated Damages, if any, respectively; and
Third: to the Company or any other obligor on the Notes, as their
interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.13;
PROVIDED that the failure to give any such notice shall not affect the
establishment of such record date or payment date for Holders pursuant to this
Section 6.13.
SECTION 6.14 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder of any Note has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders of Notes shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders of Notes
shall continue as though no such proceeding had been instituted.
SECTION 6.15 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 and expenses,
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
6.15 does not apply to a suit by the Trustee, a suit by a Holder pursuant to
Section 6.10, or a suit by a Holder or Holders of more than 10% in principal
amount of the outstanding Notes.
SECTION 6.16 COMPLIANCE CERTIFICATE; NOTICES OF DEFAULT. If a
Default occurs and is continuing and is known to the Trustee, the Trustee
must mail to each Holder of Notes notice of the Default within 90 days after
it occurs. Except in the case of a Default in the payment of principal of,
premium, if any, interest, Additional Amounts, if any, or Liquidated Damages,
if any, on any Note, the Trustee may withhold notice if and so long as the
Trustee in good faith determines that withholding notice is in the interests
of such Holders of Notes.
ARTICLE VII
TRUSTEE
SECTION 7.1 DUTIES OF TRUSTEE. (a) If an Event of Default actually
known to a Trust Officer of the Trustee has occurred and is continuing, the
Trustee shall exercise such of 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 his or her own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under this
Indenture at the request of any of the Holders of
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Notes, unless they shall have offered to the Trustee reasonable security and
indemnity against any loss, liability or expense.
(b) Except during the continuance of an Event of Default actually known
to the Trustee:
(1) The Trustee and the Agents will perform only those duties as are
specifically set forth herein and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee or
the Agents.
(2) In the absence of bad faith on their part, the Trustee and the
Agents may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions and such other documents delivered to them pursuant to Section
11.4 furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions which by any provision hereof are required to be furnished to
the Trustee, 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 willful
misconduct, except that:
(1) This paragraph does not limit the effect of subsection (b) of this
Section 7.1.
(2) Neither the Trustee nor Agent shall be liable for any error of
judgment made in good faith by a Trust Officer of such Trustee or
Agent, unless it is proved that the Trustee or such Agent was negligent
in ascertaining the pertinent facts.
(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 6.8.
(d) No provision of this Indenture shall require the Trustee or any
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of such
funds is not assured to it or it does not receive an indemnity satisfactory to
it in its sole discretion against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to subsections
(a), (b), (c) and (d) of this Section 7.1.
(f) Neither the Trustee nor the Agents shall be liable for interest on
any money received by it except as the Trustee and any Agent may agree in
writing with the Company. Money held in trust by the Trustee or any Agent need
not be segregated from other funds except to the extent required by law.
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(g) Any provision hereof relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.1 and, upon qualification of this Indenture under
the TIA, the TIA.
SECTION 7.2 RIGHTS OF TRUSTEE. Subject to Section 7.1:
(a) The Trustee and each Agent may rely conclusively on and shall be
protected from acting or refraining from acting based upon any document believed
by them to be genuine and to have been signed or presented by the proper person.
Neither the Trustee nor any Agent shall 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,
appraisal, bond, debenture, note, coupon, security or other paper or document,
but the Trustee or its Agent, as the case may be, in its discretion, may make
reasonable further inquiry or investigation into such facts or matters stated in
such document and if the Trustee or its Agent as the case may be, shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, at reasonable times
during normal business hours, personally or by agent or attorney. The Trustee
shall not be deemed to have notice or any knowledge of any matter (including
without limitation Defaults or Events of Default) unless a Trust Officer
assigned to and working in the Trustee's Corporate Trust and Agency Services
office has actual knowledge thereof or unless written notice thereof is received
by the Trustee, attention: Corporate Trust and Agency Services and such notice
references the Notes generally, the Company or this Indenture;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Company
Order and any resolution of the Board of Directors of the Company, as the case
may be, may be sufficiently evidenced by a Board Resolution;
(c) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both, which shall conform to
the provisions of Sections 11.4 and 11.5. Neither the Trustee nor any Agent
shall be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(d) The Trustee and any Agent may act through their attorneys and
agents and shall not be responsible for the misconduct or negligence of any
agent (other than an agent who is an employee of the Trustee or such Agent)
appointed with due care.
(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within its
rights or powers conferred upon it by this Indenture; PROVIDED, HOWEVER, that
the Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(f) The Trustee or any Agent may consult with counsel of its selection
and the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
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(g) Subject to Section 9.2 hereof, the Trustee may (but shall not be
obligated to), without the consent of the Holders, give any consent, waiver or
approval required by the terms hereof, but shall not without the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding (i) give any consent, waiver or approval or (ii) agree
to any amendment or modification of this Indenture, in each case, that shall
have a material adverse effect on the interests of any Holder. The Trustee shall
be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any consent, waiver, approval, amendment or modification
shall have a material adverse effect on the interests of any Holder.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee or any Agent
in its respective individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries,
or their respective Affiliates with the same rights it would have if it were
not the Trustee or an Agent. However, in the event that the Trustee acquires
any conflicting interest it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent
may do the same with like rights. The Trustee must comply with Sections 7.10
and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER. The Trustee and the Agents shall
not be responsible for and make no representation as to the validity,
effectiveness or adequacy of this Indenture, the Security Documents, the
Collateral, the offering materials related to the Notes or the Notes; it
shall not be accountable for the Company's use of the proceeds from the Notes
or any money paid to the Company or upon the Company's direction under any
provision hereof; it shall not be responsible for the use or application of
any money received by any Agent and it shall not be responsible for any
statement or recital herein of the Company, or any document issued in
connection with the sale of Notes, the Security Documents or the Collateral
or any statement in the Notes other than the Trustee's certificate of
authentication.
SECTION 7.5 NOTICE OF DEFAULT. If an Event of Default occurs and is
continuing and a Trust Officer of the Trustee receives actual notice of such
event, the Trustee shall mail to each Holder, as their names and addresses
appear on the list of Holders described in Section 2.5, notice of the uncured
Default or Event of Default within 90 days after the Trustee receives such
notice. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest, Additional Amounts, if any, or
Liquidated Damages, if any, on any Note, including the failure to make
payment on (i) the Change of Control Payment Date pursuant to a Change of
Control Offer or (ii) the date required for payment pursuant to an Asset Sale
Offer, 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 interest of the Holders.
SECTION 7.6 REPORT BY TRUSTEE TO HOLDERS. This Section 7.6 shall not
be operative as a part of this Indenture until this Indenture is qualified
under the TIA, and, until such qualification, this Indenture shall be
construed as if this Section 7.6 were not contained herein.
Within 60 days after each April 10 beginning with April 10, 2002, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that
78
complies with TIA Section 313(a). The Trustee also shall comply with TIA
Sections 313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each securities exchange, if
any, on which the Notes are listed.
The Company shall promptly notify the Trustee if subsequent to the date
hereof the Notes become listed on any securities exchange or of any delisting
thereof.
SECTION 7.7 COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee and Agents from time to time such compensation as the Company and the
Trustee shall from time to time agree in writing for its acceptance of this
Indenture and services hereunder. The Trustee's and the Agents' compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company shall reimburse the Trustee and Agent's upon request for
all reasonable disbursements, expenses and advances (including reasonable
fees and expenses of counsel) incurred or made by it in addition to the
compensation for their services, except any such disbursements, expenses and
advances as may be attributable to the Trustee's or any Agent's negligence or
bad faith. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's and Agents' accountants, experts
and counsel and any taxes or other expenses incurred by a trust created
pursuant to Section 8.4 hereof.
The Company agrees to pay the fees and expenses of the Trustee's legal
counsel, White & Case LLP, no later than the Closing Date in connection with its
review, preparation and delivery of this Indenture and related documentation.
The Company shall indemnify each of the Trustee, any predecessor
Trustee and the Agents (which, for purposes of this paragraph, include such
Trustee's and Agents' officers, directors, employees and agents) for, and hold
them harmless against, any and all loss, damage, claim, expense or liability
including taxes (other than taxes based on the income of the Trustee) incurred
by the Trustee or an Agent without negligence, willful misconduct or bad faith
on its part in connection with acceptance of administration of this trust and
performance of its duties under this Indenture and the Security Documents,
including the reasonable expenses and attorneys' fees and expenses of defending
itself against any claim of liability arising hereunder. The Trustee and the
Agents shall notify the Company promptly of any claim asserted against the
Trustee or such Agent for which it may seek indemnity. However, the failure by
the Trustee or the Agent to so notify the Company shall not relieve the Company
of its obligations hereunder. The Company shall defend the claim and the Trustee
or such Agent shall cooperate in the defense (and may employ its own counsel
reasonably satisfactory to the Trustee) at the Company's expense. The Trustee or
such Agent may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its written consent, which consent shall not be unreasonably
withheld.
To secure the Company's payment obligations in this Section 7.7, the
Trustee and the Agents shall have a senior Lien prior to the Notes against all
money or property held or collected by the Trustee and the Agents, in its
capacity as Trustee or Agent, except money or property held in trust to pay
principal or premium, if any, Additional Amounts, if any, Liquidated Damages, if
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any, or interest on particular Notes and except for the Collateral subject to
the Security Documents.
When the Trustee or an Agent incurs expenses or renders services after
the occurrence of an Event of Default specified in clause (7) of Section 6.1,
the expenses (including the reasonable fees and expenses of its agents and
counsel) and the compensation for the services shall be preferred over the
status of the Holders in a proceeding under any Bankruptcy Law and are intended
to constitute expenses of administration under any Bankruptcy Law. The Company's
obligations under this Section 7.7 and any claim arising hereunder shall survive
the termination of this Indenture and the Security Documents, the resignation or
removal of any Trustee or Agent, the discharge of the Company's obligations
pursuant to Article VIII and any rejection or termination under any Bankruptcy
Law.
SECTION 7.8 REPLACEMENT OF TRUSTEE. The Trustee and any Agent may
resign at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Notes may remove the Trustee
by so notifying the Company and the Trustee in writing and may appoint a
successor trustee with the Company's consent. A resignation or removal of the
Trustee or any Agent and appointment of a successor Trustee or Agent, as the
case may be, shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this section. The Company may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting with respect to its duties
hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may, with the Company's consent, appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.7, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.7, 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. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
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If the Trustee after written request by any Holder who has been a
Holder for at least six months fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee and the Company shall pay to any replaced or removed
Trustee all amounts owed under Section 7.7 upon such replacement or removal.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Notes
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by consolidation, merger or conversion to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
SECTION 7.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall be
at all times a Trustee hereunder which shall be eligible to act as Trustee
under the TIA and shall have a combined capital and surplus of at least
50,000,000 and have its Corporate Trust Office in the Borough of Manhattan,
The City of
New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal, State or
District of Columbia supervising or examining authority within the United
States of America, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
The Trustee under this Indenture shall always satisfy the requirements
of TIA Sections 310(a)(1), (2) and (5). The Trustee shall comply with Section
310(b) of the TIA; provided, however, that there shall be excluded from the
operation of TIA Section 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 Section 310(b)(1) are met.
SECTION 7.11 DISQUALIFICATION; CONFLICTING INTERESTS. If the Trustee
has or shall acquire a conflicting interest within the meaning of the TIA,
the Trustee shall either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the TIA and this
Indenture.
SECTION 7.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee, in its capacity as Trustee hereunder, shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated.
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ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT
DEFEASANCE. The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
with respect to the Notes, elect to have either Section 8.2 or 8.3 be applied
to all outstanding Notes upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.2 LEGAL DEFEASANCE AND DISCHARGE. Upon the Company's
exercise under Section 8.1 of the option applicable to this Section 8.2, the
Company shall be deemed to have been discharged from its obligations with
respect to all outstanding Notes on the date the conditions set forth below
are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
all the obligations relating to the outstanding Notes and the Notes shall
thereafter be deemed to be "outstanding" only for the purposes of Section
8.6, Section 8.8 and the other Sections of this Indenture referred to below
in this Section 8.2, and to have satisfied all of their other obligations
under such Notes and this Indenture and cured all then existing Events of
Default (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of outstanding Notes to receive payments
in respect of the principal of, premium, if any, interest, Additional
Amounts, if any, and Liquidated Damages, if any, on such Notes when such
payments are due or on the Redemption Date solely out of the trust created
pursuant to this Indenture; (b) the Company's obligations with respect to
Notes concerning issuing temporary Notes, or, where relevant, registration of
such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of
an office or agency for payment and money for security payments held in
trust; (c) the rights, powers, trusts, duties and immunities of the Trustee,
and the Company's obligations in connection therewith; and (d) this Article
VIII and the obligations set forth in Section 8.6 hereof.
Subject to compliance with this Article VIII, the Company may exercise
its option under Section 8.2 notwithstanding the prior exercise of its option
under Section 8.3 with respect to the Notes.
SECTION 8.3 COVENANT DEFEASANCE. Upon the Company's exercise under
Section 8.1 of the option applicable to this Section 8.3, the Company shall
be released from any obligations under the covenants contained in Sections
4.3, 4.4, 4.8, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.23, 4.24,
4.25 and 4.26 hereof with respect to the outstanding Notes on and after the
date the conditions set forth below are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and the Notes shall thereafter be deemed not "outstanding" for
the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other
purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, (i) with respect to the outstanding Notes, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
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indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision
herein or in any other document and (ii) payment on the Notes may not be
accelerated because of an Event of Default specified in clause (3) (but only
if such Event of Default is triggered solely by a failure to comply with the
conditions set forth in clauses (c) and (f) thereof), (4) (insofar as it
relates to Sections 4.3, 4.4, 4.8, 4.10, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17,
4.18, 4.23, 4.24, 4.25 and 4.26 hereof), (6), (7) (with respect to a
Significant Subsidiary), (8) or (11) of Section 6.1 hereof.
SECTION 8.4 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE. The
following shall be the conditions to the application of either Section 8.2 or
Section 8.3 to the outstanding Notes:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders cash in Euro in such amounts as will be
sufficient, in the opinion of an internationally recognized firm of
independent public accountants, to pay the principal of, premium, if
any, interest, Additional Amounts, if any, and Liquidated Damages, if
any, on the Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be;
(2) in the case of legal defeasance, the Company shall have delivered
to the Trustee (x) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company
has received from, or there has been published by, the Internal Revenue
Service a ruling or (B) since the date hereof, there has been a change
in the applicable United States federal income tax law, in either case,
to the effect that, and based thereon such Opinion of Counsel shall
confirm that, the Holders will not recognize income, gain or loss for
United States federal income tax purposes as a result of such legal
defeasance and will be subject to United States federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such legal defeasance had not occurred and (y) an
Opinion of Counsel in The Kingdom of Sweden reasonably acceptable to
the Trustee to the effect that (A) Holders will not recognize income,
gain or loss for Swedish income tax purposes as a result of the such
legal defeasance and will be subject to Swedish income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such legal defeasance had not occurred and (B) payments
from the defeasance trust will 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 Kingdom of Sweden or any political subdivision
thereof or therein having the power to tax;
(3) in the case of covenant defeasance, the Company shall have
delivered to the Trustee (x) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders will
not recognize income, gain or loss for United States federal income tax
purposes as a result of such covenant defeasance and will be subject to
United States 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 (y) an Opinion of Counsel in
The Kingdom of Sweden reasonably acceptable to the Trustee to the
effect that (A) Holders will not recognize income, gain or loss for
Swedish income tax purposes as a result of such covenant defeasance and
will be subject to Swedish income tax on the same amounts, in the same
manner and at the same
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times as would have been the case if such covenant defeasance had
not occurred and (B) payments from the defeasance trust will 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 Kingdom of
Sweden or any political subdivision thereof or therein having the
power to tax;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default
from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date or deposit;
(5) such legal defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under this Indenture or
any other material agreement or instrument to which the Company or any
of its Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the legal defeasance or the
covenant defeasance have been complied with;
(8) the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States (subject to customary exceptions) to the
effect that (A) the trust funds will not be subject to any rights of
holders of Indebtedness, including, without limitation, those arising
under this Indenture and (B) after the 181st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally under any applicable Swedish or United
States 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) certain other customary conditions precedent are satisfied.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (ii), above, with respect to a legal defeasance need not be delivered if
all such Notes not therefore delivered to the Trustee for cancellation (x) have
become due and payable, (y) will become due and payable on the maturity date
within one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
SECTION 8.5 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
will be discharged and will cease to be of further effect as to all Notes
issued thereunder when either (i) all such Notes theretofore authenticated
and delivered (except lost, stolen or destroyed Notes which have been
replaced or paid and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company) have been delivered
to the Trustee for
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cancellation or (ii) (A) all such Notes not theretofore delivered to the
Trustee for cancellation have become due and payable by reason of the making
of a notice of redemption or otherwise or will become due and payable within
one year and the Company has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust an amount of money sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore delivered
to the Trustee for cancellation for principal, premium, if any, and accrued
and unpaid interest, Additional Amounts, if any, and Liquidated Damages, if
any, to the date of maturity or redemption, (B) no Default with respect to
this Indenture or the Notes shall have occurred and be continuing on the date
of such deposit or shall occur as a result of such deposit and such deposit
will not result in a breach or violation of, or constitute a default under,
any other instrument to which the Company is a party or by which it is bound,
(C) the Company has paid, or caused to be paid, all sums payable by it under
this Indenture, and (D) the Company has delivered irrevocable instructions to
the Trustee under this Indenture to give the notice of redemption and apply
the deposited money toward the payment of such Notes at maturity or the
Redemption Date, as the case may be. In addition, the Company must deliver an
Officers' Certificate and an Opinion of Counsel to the Trustee stating that
all conditions precedent to satisfaction and discharge have been satisfied.
SECTION 8.6 SURVIVAL OF CERTAIN OBLIGATIONS. Notwithstanding the
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Company
and the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.9, 2.10, 2.11,
2.12, 2.13, 2.14, 4.1, 4.2, 4.5, 4.21, 6.10, Article VII and Article VIII
shall survive until the Notes are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Articles VII and VIII shall
survive. Nothing contained in this Article VIII shall abrogate any of the
obligations or duties of the Trustee under this Indenture.
SECTION 8.7 ACKNOWLEDGMENT OF DISCHARGE BY TRUSTEE. Subject to
Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been
satisfied, (ii) the Company has paid or caused to be paid all other sums
payable hereunder by the Company and (iii) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of
all of the Company's obligations under this Indenture except for those
surviving obligations specified in this Article VIII.
SECTION 8.8 APPLICATION OF TRUST MONEYS. All cash in Euros deposited
with the Trustee pursuant to Section 8.4 or 8.5 in respect of Notes shall be
held in trust and applied by it, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of the Notes of all
sums due and to become due thereon for principal, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, but such money
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash deposited pursuant to
Section 8.4 or 8.5 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of outstanding Notes.
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SECTION 8.9 REPAYMENT TO THE COMPANY; UNCLAIMED MONEY. The Trustee
and any Paying Agent shall promptly pay or return to the Company upon Company
Order any cash held by them at any time that are not required for the payment
of the principal of, premium, if any, interest, Additional Amounts, if any,
and Liquidated Damages, if any, on the Notes for which cash has been
deposited pursuant to Section 8.4 or 8.5.
Any money held by the Trustee or any Paying Agent under this Article,
in trust for the payment of the principal of, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, on any Note and
remaining unclaimed for two years after such principal, premium, if any,
interest, Additional Amounts, if any, and Liquidated Damages, if any, has become
due and payable shall be paid to the Company upon Company Order or if then held
by the Company shall be discharged from such trust; and the Holder of such Note
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company give notice to the Holders or cause to be
published notice once, 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 Notes 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 Notes, in addition to such publication, mail to Holders by
first-class mail, postage prepaid, 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, publish 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 will be repaid to the Company.
Claims against the Company for the payment of principal or interest,
Additional Amounts, if any, or Liquidated Damages, if any, on the Notes will
become void unless presentment for payment is made (where so required in the
Indenture) within, in the case of principal, Additional Amounts, if any, or
Liquidated Damages, if any, a period of ten years, or, in the case of interest,
a period of five years, in each case from the applicable original payment date
therefor.
SECTION 8.10 REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any cash in accordance with Section 8.2, 8.3, 8.4 or 8.5 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 Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.2, 8.3, 8.4 or 8.5 until such time as the Trustee or Paying Agent
is permitted to apply all such cash in accordance with Section 8.2, 8.3, 8.4
or 8.5; PROVIDED, HOWEVER, that if the Company has made any payment of
interest on, premium, if any, principal, Additional Amounts, if any, and
Liquidated Damages, if any, of any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 WITHOUT CONSENT OF HOLDERS OF NOTES. Notwithstanding
Section 9.2 hereof, the Company, the Trustee and the Principal Paying Agent
together may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note to:
(1) cure any ambiguity, omission, defect or inconsistency;
(2) provide for the assumption by a successor corporation, partnership,
trust or limited liability company of the obligations of the Company
under and pursuant to this Indenture;
(3) provide for uncertificated Notes in addition to or in place of
certificated Notes (PROVIDED that the uncertificated Notes are issued
in registered form for purposes of Section 163(f) of the Code, or in a
manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code);
(4) add Guarantees with respect to the Notes;
(5) grant additional security for the Notes;
(6) add to the covenants of the Company for the benefit of the Holders
or to surrender any right or power conferred upon the Company;
(7) make any change that does not adversely affect the rights of any
Holder of Notes under this Indenture;
(8) evidence and provide for the acceptance and appointment under this
Indenture by the successor trustee; or
(8) comply with any requirement of the Commission in connection with
the qualification of this Indenture under the Trust Indenture Act.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 9.6, the
Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture which adversely affects its own rights, duties
or immunities hereunder or otherwise.
SECTION 9.2 WITH CONSENT OF HOLDERS OF NOTES. The Company and the
Trustee may amend or supplement this Indenture, the Notes, any Security
Document or any amended or supplemental indenture with the written consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes), and, subject to Sections 6.7 and 6.10, any
existing Default
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or Event of Default and its consequences or compliance with any provision of
this Indenture or the Notes may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for the Notes). However, without the consent of each Holder affected,
an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder of Notes):
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the stated rate of or extend the stated time for payment
of interest on any such Note;
(3) reduce the principal of or extend the Stated Maturity of any such
Note;
(4) reduce the premium payable upon the redemption or repurchase of any
such Note or change the time at which any such Note may be redeemed or
repurchased as described under paragraph 8 of the Initial Notes or
paragraph 7 of the Exchange Notes, Section 4.14 or Section 4.19 hereof
or any similar provision;
(5) make any such Note payable in money other than that stated in such
Note;
(6) impair the right of any Holder of such Note to receive payment of
principal of, premium, if any, interest, Additional Amounts, if any,
and Liquidated Damages, if any, on such Holder's Notes on or after the
due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holder's Notes;
(7) make any change in the amendment provisions which require each
Holder's consent or in the waiver provisions;
(8) make any change in the provisions of this Indenture described under
Section 4.20 hereof that adversely affects the rights of any Holder of
the Notes or amends the terms of such Notes in a way that would result
in a loss of an exemption from any of the Taxes described thereunder or
an exemption from any obligation to withhold or deduct Taxes so
described thereunder unless the Company agrees to pay Additional
Amounts, if any, in respect thereof; or
(9) directly or indirectly release the Pledges except as permitted by
the Security Documents.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 9.6, the Trustee shall join with the Company
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture adversely affects the Trustee's own rights, duties or
immunities hereunder or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
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It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes a notice briefly
describing the amendment, supplement or waiver. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such amended or supplemental indenture or waiver.
SECTION 9.3 COMPLIANCE WITH TIA. From the date on which this
Indenture is qualified under the TIA, every amendment, waiver or supplement
of this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4 REVOCATION AND EFFECT OF CONSENTS. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note
is a continuing consent by the Holder of a Note and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a Note may revoke
the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of a Note.
The Company may fix a record date for determining which Holders of the
Notes must consent to such amendment, supplement or waiver. If the Company fixes
a record date, the record date shall be fixed at (i) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of Notes furnished to the Trustee prior to such solicitation pursuant to
Section 2.5 or (ii) such other date as the Company shall designate.
SECTION 9.5 NOTATION ON OR EXCHANGE OF NOTES. The Trustee may place
an appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this
Article IX; PROVIDED, HOWEVER, that the Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which
adversely affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive indemnity reasonably
satisfactory to it, and shall be fully protected in relying upon, an Opinion
of Counsel and an Officers' Certificate each stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture and constitutes the legal, valid
and
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binding obligations of the Company enforceable in accordance with its terms.
Such Opinion of Counsel shall not be an expense of the Trustee.
ARTICLE X
SECURITY
SECTION 10.1 SECURITY. In order to secure the due and punctual
payment of the principal of, premium, if any, interest, Additional Amounts,
if any, and Liquidated Damages, if any, on the Notes when and as the same
shall be due and payable, whether on an interest payment date, at maturity,
by acceleration, repurchase, call for redemption or otherwise, and interest
on the overdue principal, interest and Additional Amounts, if any (to the
extent permitted by law), of the Notes and performance of all other
obligations of the Company to the Holders or the Trustee under this Indenture
and the Notes, according to the terms hereof or thereof, the Company will
make an assignment and pledge of its right, title and interest in and to the
Collateral to the Trustee pursuant to the Security Documents and to the
extent therein provided, no later than the date of the first issuance of the
Notes hereunder. At the time the Security Documents are executed, the Company
will have full right, power and lawful authority to grant, bargain, sell,
release, convey, hypothecate, assign, mortgage, transfer and confirm,
absolutely, the property constituting the Collateral in the manner and form
done, or intended to be done, in the Security Documents, free and clear of
all Liens whatsoever, and (a) will for so long as any Notes are outstanding,
warrant and defend the title to the same against the claims of all Persons
whatsoever, (b) will execute, acknowledge and deliver to the Trustee such
further assignments, transfers, assurances or other instruments as the
Trustee may require or request and (c) will do or cause to be done all such
acts and things as may be necessary or proper, or as may be required by the
Trustee, to assure and confirm to the Trustee (acting on behalf of the
Holders of the Notes) the security interest in the Collateral contemplated
hereby and by the Security Documents, or any part thereof, as from time to
time constituted, so as to render the same available for the security and
benefit of this Indenture and of the Notes secured hereby, according to the
intent and purposes herein expressed. The Company shall take any and all
actions required to cause the Security Documents to create and maintain, as
security for the obligations of the Company hereunder, a valid and
enforceable perfected first priority Lien in and on all the Collateral with
respect to the Notes, in favor of the Trustee (acting on behalf of the
Holders of the Notes) for the benefit of the Holders of such Notes, superior
to and prior to the rights of all third Persons and subject to no other
Liens. The Security Documents create such a Lien on the property constituting
the Collateral.
SECTION 10.2 RECORDING AND OPINIONS. The Company will cause, at its
own expense, the Security Documents, this Indenture and all amendments or
supplements thereto to be registered, recorded and filed or re-recorded,
refiled and renewed in such manner and in such place or places, if any, as
may be required by law in order fully to preserve and protect the Liens
created by the Security Documents on all parts of the Collateral and to
effectuate and preserve the security of the Holders and all rights of the
Trustee.
The Company shall furnish to the Trustee: (a) simultaneously with the
execution and delivery of this Indenture, an Opinion of Counsel either (I)
stating that, in the opinion of such counsel, this Indenture and the assignment
and pledge of the Collateral intended to be made by
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the Security Documents and all other instruments of further assurance or
amendment have been properly recorded, registered and filed, and all action
has been taken in respect thereof, to the extent necessary to make effective
the Lien intended to be created by the Security Documents, and reciting with
respect to the security interests in the Collateral the details of such
action, and stating that, as to the Security Documents, such recordings,
registering and filings necessary to give notice thereof are the only
recordings, registerings and filings necessary to give notice thereof and
that no re-recordings, re-registering or refilings are necessary to maintain
such notice, and further stating that all financing statements and
continuation statements have been executed and filed that are necessary fully
to preserve and protect the rights of the Holders and the Trustee hereunder
and under the Security Documents, or (II) stating that, in the opinion of
such counsel, no such action is necessary to make such Lien and assignment
and pledge effective; and (b) within 30 days after April 10 in each year
beginning with April 10, 2002, an Opinion of Counsel, dated as of such date,
either (a) stating that, in the opinion of such counsel, such action has been
taken with respect to the recording, registering, filing, re-recording,
reregistering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance
as is necessary to maintain the Lien of the Security Documents and reciting,
with respect to the security interests of the Collateral, the details of such
action or referring to prior Opinions of Counsel in which details are given,
and stating that all financing statements and continuation statements have
been executed and filed that are necessary as of such date and during the
succeeding 12 months fully to preserve and protect the rights of the Holders
and the Trustee hereunder and under the Security Documents, or (b) stating
that, in the opinion of such counsel, no such action is necessary to maintain
such Lien and assignment and pledge.
SECTION 10.3 RELEASE OF COLLATERAL. (a) Subject to subsections (b),
(c) and (d) of this Section 10.3, Collateral may be released from the Lien
and security interest created by the Security Documents only in accordance
with the provisions of the Security Documents.
(b) Except to the extent that any Lien on proceeds of Collateral is
automatically released by operation of law, no Collateral shall be released from
the Lien and security interest created by the Security Documents pursuant to the
provisions of the Security Documents, other than pursuant to the terms thereof,
unless there shall have been delivered to the Trustee the certificate required
by Section 10.3(d) and Section 10.4.
(c) At any time when an Event of Default shall have occurred and be
continuing and the maturity of the Notes shall have been accelerated (whether by
declaration or otherwise), no Collateral shall be released pursuant to the
provisions of the Security Documents, and no release of Collateral in
contravention of this Section 10.3(c) shall be effective as against the Holders
of Notes, except for disbursement to the Trustee on behalf of the Holders of the
Notes.
(d) The release of any Collateral from the Liens and security interests
created by the Security Documents shall not be deemed to impair the security
under the Security Documents in contravention of the provisions hereof if and to
the extent the Collateral is released pursuant to the terms hereof or, subject
to complying with the requirements of this Section 10.3, and Section 10.4
pursuant to the terms of the Security Documents. To the extent applicable, the
Company shall cause Section 314(d) of the TIA relating to the release of
property or securities from the Lien and security interest of the Security
Documents to be complied with. Any certificate or
91
opinion required by Section 314(d) of the TIA may be made by an Officer of
the Company except in cases where Section 314(d) of the TIA requires that
such certificate or opinion be made by an independent Person, which Person
shall be an independent engineer, appraiser or other expert selected by the
Company.
SECTION 10.4 CERTIFICATES OF THE COMPANY. The Company shall furnish
to the Trustee, prior to any proposed release of the Collateral other than
pursuant to the express terms of the Security Documents, (i) all documents
required by Section 314(d) of the TIA and (ii) an Opinion of Counsel to the
effect that such accompanying documents constitute all documents required by
Section 314(d) of the TIA. The Trustee may, to the extent permitted by
Sections 7.1 and 7.2, accept as conclusive evidence of compliance with the
foregoing provisions the appropriate statements contained in such documents
and such Opinion of Counsel.
SECTION 10.5 AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE TRUSTEE.
(a) Subject to the provisions of Sections 7.1 and 7.2 hereof, the Trustee
upon the written direction of the Holders of majority in principal amount of
the Notes then outstanding may, on behalf of the Holders of such Notes, take
all actions as so directed in order to (i) enforce any of the terms of the
Security Documents and (ii) collect and receive any and all amounts payable
in respect of the obligations of the Company hereunder. The Trustee shall
have power to institute and to maintain suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of the Security Documents or this Indenture, and
such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain
the enforcement of or compliance with any legislative or governmental
enactment, rule, or order that may be unconstitutional or otherwise invalid
if the enforcement of, or compliance with, such enactment, rule or order
would impair the security hereunder or under the Security Documents or be
prejudicial to the interest of the Trustee).
(b) The Trustee shall have the power and is hereby authorized to enter
into the Security Documents for itself and on behalf of the Holders and to make
certain agreements, covenants and representations on behalf of the Holders.
(c) All enforcement rights of the Holders under this Indenture which
may be exercised by the Trustee on behalf of the Holders shall from and after
the time of issuance of the Notes be held by the Trustee on behalf of the
Holders as express INTER VIVOS trust for the benefit of the Holders from time to
time.
SECTION 10.6 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER
THE SECURITY DOCUMENTS. The Trustee is authorized to receive any funds and
assets for the benefit of the Holders of Notes disbursed under the Security
Documents and to make further distributions of such funds and assets to the
Holders of Notes according to the provisions of this Indenture.
SECTION 10.7 TERMINATION OF SECURITY INTEREST. Upon the earliest to
occur of (i) the payment in full of all obligations of the Company under this
Indenture and the Notes, (ii) Legal Defeasance pursuant to Section 8.2
hereof, (iii)Covenant Defeasance pursuant to Section 8.3 hereof and (iv)
satisfaction and discharge pursuant to Section 8.5 hereof, the Trustee shall,
at
92
the written request of the Company, release the Liens pursuant to the
Security Documents upon the Company's compliance with the provisions of the
TIA pertaining to release of collateral.
The Trustee shall not be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise perfecting or maintaining the
perfection of any security interest in the Collateral.
The Trustee shall not be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, for the validity or sufficiency of the Collateral or any agreement or
assignment contained therein, for the validity of the title of the Company to
the Collateral, for insuring the Collateral or for the payment of taxes,
charges, assessments or Liens upon the Collateral or otherwise as to the
maintenance of the Collateral.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 TIA CONTROLS. If any provision of this Indenture
limits, qualifies, or conflicts with the duties imposed by operation of
Section 3.18(c) of the TIA, the imposed duties shall control. If any
provision of this Indenture modifies or excludes any provision of the TIA
that can be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
SECTION 11.2 NOTICES. Any notices or other communications required
or permitted hereunder shall be in writing, and shall be sufficiently given
if made by hand delivery, by telecopier or first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Attention: Xx. Xxxxxxx Xxxxx
Preem Holdings AB (Publ)
Xxxxxxxxxxxxxxx 00
X.X. Xxx 0000
XX-000 00 Xxxxxxxxx
Xxxxxx
Telecopier: x00-0-000-0000
with a copy to:
Attention: Mr. J. Xxxxxxx Xxxxxxxx
Akin, Gump, Strauss, Xxxxx & Xxxx
Xxx Xxxxx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telecopier: x00-000-000-0000
93
if to the Trustee:
Attention to: Xx. Xxxxx Xx
Corporate Trust and Agency Services
Bankers Trust Company, as Trustee, Registrar or Paying Agent
Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: x0-000-000-0000
Telephone: x0-000-000-0000
with a copy to:
Attention to: Xx. Xxx Xxxxxx
Bankers Trust Company, as Trustee, Registrar or Paying Agent
Xxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: x0-000-000-0000
Telephone: x0-000-000-0000
if to the Principal Paying Agent:
Attention to: Corporate Trust and Agency Services (CPF-Administration)
Deutsche Bank AG London as Principal Paying Agent and Transfer Agent
Xxxxxxxxxx Xxxxx
0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Telecopier: x00-000-000-0000
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company and the Trustee, shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if telecopied; and five (5) calendar
days after mailing if sent by first class mail, postage prepaid (except that a
notice of change of address and a Notice to the Trustee shall not be deemed to
have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to such
Person by first-class mail or other equivalent means at such Person's address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
94
Notices regarding the Notes will be 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 Notes 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 Notes, in addition to such
publication, mailed to Holders by first-class mail at their respective addresses
as they appear on the registration books of the Registrar. Notices given by
publication will be deemed given on the first date on which publication is made
and notices given by first-class mail, postage prepaid, will be deemed given
five calendar days after mailing.
SECTION 11.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS. Holders
may communicate pursuant to Section 312(b) of the TIA with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other person shall have the protection of
Section 312(c) of the TIA.
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee or an Agent to
take any action under this Indenture, the Company shall furnish to the
Trustee at the request of the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 11.5), stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied or complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee or such Agent (which shall include the statements set forth
in Section 11.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied or complied with.
In any case where several matters are required to be certified by, or
covered by an Opinion of Counsel of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the Opinion of Counsel of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an Opinion of Counsel with
respect to some matters and one or more such Persons as to other matters, and
any such Person may certify or give an Opinion of Counsel as to such matters in
one or several documents.
Any certificate of an Officer of the Company may be based, insofar as
it relates to legal matters, upon an Opinion of Counsel, unless such Officer
knows, or in the exercise of reasonable care should know, that such Opinion of
Counsel with respect to the matters upon which his certificate is based are
erroneous. Any Opinion of Counsel may be based, and may state that it is so
based, insofar as it relates to factual matters, upon a certificate of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or representations with respect to such matters are
erroneous.
95
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the Person 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 Person, such Person has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 11.6 RULES BY TRUSTEE, PAYING AGENT (INCLUDING PRINCIPAL
PAYING AGENT), REGISTRAR. The Trustee, Paying Agent (including the Principal
Paying Agent) or Registrar may make reasonable rules for its functions.
SECTION 11.7 LEGAL HOLIDAYS. If a payment date is not a Business
Day, payment may be made on the next succeeding day that is a Business Day,
and no interest shall accrue for the intervening period.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND THE NOTES, AND THE
RIGHTS AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.9 SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE. To the fullest extent permitted by applicable law, the Company
irrevocably submits to the non-exclusive jurisdiction of and venue in any
federal or state court in the Borough of Manhattan in the City of Xxx Xxxx,
Xxxxxx xxx Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or
proceeding based on or arising under this Indenture or any of the
transactions contemplated hereby, and irrevocably agrees that all claims in
respect of such suit or proceeding may be determined in any such court. The
Company, to the fullest extent permitted by applicable law, irrevocably and
fully waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding and hereby irrevocably designates and appoints CT
Corporation (the "AUTHORIZED AGENT"), as its authorized agent upon whom
process may be served in any such suit or proceeding. The Company represents
that it has notified the Authorized Agent of such designation and appointment
and that the Authorized Agent has accepted the same in writing. The Company
hereby irrevocably authorizes and directs its Authorized Agent to accept such
service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its
96
Authorized Agent shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. Nothing herein shall
affect the right of any person to serve process in any other manner permitted
by law. The Company agrees that a final action in any such suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner. Notwithstanding the foregoing, any
action against the Company arising out of or based on this Indenture or the
transactions contemplated hereby may also be instituted in any competent
court in The Kingdom of Sweden and the Company expressly accepts the
jurisdiction of any such court in any such action. The Company hereby
irrevocably waives, to the extent permitted by law, any immunity to
jurisdiction to which it may otherwise be entitled (including, without
limitation, immunity to pre-judgment attachment, post-judgment attachment and
execution) in any legal suit, action or proceeding against it arising out of
or based on this Indenture, the Notes or the transactions contemplated
hereby. The provisions of this Section 11.9 are intended to be effective upon
the execution of this Indenture and the Notes without any further action by
the Company or the Trustee and the introduction of a true copy of this
Indenture into evidence shall be conclusive and final evidence as to such
matters.
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES, INCORPORATORS OR STOCKHOLDERS. No director, officer, employee,
incorporator or stockholder of the Company, as such, shall have any liability
for any obligations of the Company under the Notes. The Security Documents or
this Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Holder of the Notes by accepting a Note
waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes.
SECTION 11.12 CURRENCY INDEMNITY. The Euro is the sole currency of
account and payment for all sums payable by the Company under or in
connection with the Notes, including damages. Any amount received or
recovered in a currency other than euro (whether as a result of, or the
enforcement of, a judgment or order of a court of any jurisdiction, in the
winding-up or dissolution of the Company or otherwise) by any Holder of a
Note or the Trustee in respect of any sum expressed to be due to it from the
Company will only constitute a discharge to the Company to the extent of the
Euro amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so). If that Euro amount is
less than the Euro amount expressed to be due to the recipient under any Note
or the Trustee, the Company will indemnify them against any loss sustained by
them as a result. In any event, the Company will indemnify the recipient
against the cost of making any such purchase. For the purposes of this
Section 11.12, it will be sufficient for the Holder of a Note or the Trustee
to certify in a satisfactory manner (indicating the sources of information
used) that it would have suffered a loss had an actual purchase of Euro been
made with the amount so received in that other currency on the date of
receipt or recovery (or, if a purchase of euro on such date had not been
practicable, on the first date on which it would have
97
been practicable, it being required that the need for a change of date be
certified in the manner mentioned above). These indemnities constitute a
separate and independent obligation from the Company's other obligations,
will give rise to a separate and independent cause of action, will apply
irrespective of any indulgence granted by any Holder of a Note or the Trustee
and will continue in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under any
Note or the Trustee.
SECTION 11.13 SUCCESSORS. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.14 COUNTERPART ORIGINALS. All parties hereto may sign any
number of copies of this Indenture. Each signed copy or counterpart shall be
an original, but all of them together shall represent one and the same
agreement.
SECTION 11.15 SEVERABILITY. In case any one or more of the
provisions in this Indenture or in the Notes shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and 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 11.16 TABLE OF CONTENTS, HEADINGS, ETC. The Table of
Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
to be considered a part of this Indenture and shall in no way modify or
restrict any of the terms or provisions hereof.
98
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the date first written above.
PREEM HOLDINGS AB (PUBL)
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: President
By: /s/ Xxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Director
BANKERS TRUST COMPANY, as Trustee,
Registrar and Paying Agent
By: /s/ Xxxxx Xxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK AG LONDON, as Principal
Paying Agent and Transfer Agent
By: /s/ C.A. Xxxxxx
-----------------------------
Name: C.A. Xxxxxx
Title: Vice President
By: /s/ X. XxXxxxxxx
-----------------------------
Name: X. XxXxxxxxx
Title: Assistant Vice President
EXHIBIT A
TO THE INDENTURE
[FORM OF FACE OF INITIAL GLOBAL NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
THIS SECURITY OF PREEM HOLDINGS AB (PUBL) (THE "ISSUER") HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR ANY OTHER
JURISDICTION. 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 THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF
TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE BY THE
U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES 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) PURSUANT
TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT SUBJECT TO
THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND PRIOR TO
ANY OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (A) THROUGH (E) TO REQUIRE THE
TRANSFER CERTIFICATIONS REQUIRED PURSUANT TO THE INDENTURE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
X-0
XXXXX XXXXXXXX XX (PUBL)
10-5/8% Senior Secured Note due 2011
Common Code No.: ________
ISIN No.: ________
[If Regulation S Security - CINS Number _________]
No.____ EURO____________
PREEM HOLDINGS AB (PUBL), a company organized under the laws
of The Kingdom of Sweden (the "Company", which term includes any successor
corporation), for value received promises to pay _____ or registered assigns
upon surrender hereof the principal sum indicated on Schedule A hereof, on March
31, 2011.
Interest Payment Dates: March 31 and September 31, commencing
September 31, 2001
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-2
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
PREEM HOLDINGS AB (PUBL)
By: _________________________
Name:
Title:
By: __________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
BANKERS TRUST COMPANY, as Trustee,
By: _____________________
Name:
Title:
Dated:
A-3
[FORM OF REVERSE]
PREEM HOLDINGS AB (PUBL)
10-5/8% Senior Secured Note due 2011
1. INTEREST. PREEM HOLDINGS AB (PUBL), a company organized
under the laws of The Kingdom of Sweden (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 10-5/8% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 31 and September 30, or if any such day is not a Business Day, on the
next succeeding Business Day, commencing September 30, 2001, to the Holder
hereof. Notwithstanding any exchange of this Note for a Definitive Note during
the period starting on a Record Date relating to such Definitive Note and ending
on the immediately succeeding interest payment date, the interest due on such
interest payment date shall be payable to the Person in whose name this Global
Note is registered at the close of business on the Record Date for such
interest. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 10, 2001.
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 and on
overdue installments of interest (without regard to any applicable grace
periods), on any Additional Amounts, and on any Liquidated Damages, from time to
time on demand at the rate borne by the Notes plus 1.5% per annum to the extent
lawful. Any interest paid on this Note shall be increased to the extent
necessary to pay Additional Amounts as set forth herein.
2. LIQUIDATED DAMAGES. Pursuant to a Registration Rights
Agreement between the Company and the Initial Purchasers on behalf of Holders of
the Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 10-5/8% Senior Secured
Notes due 2011 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full. The Company shall provide written notice to the Trustee of
the accrual and amount of Liquidated Damages, if any, not less than ten (10)
Business Days prior to each interest payment date. Absent such notice, the
Trustee shall be conclusively entitled to presume that no Liquidated Damages
have accrued and are owing.
A-4
3. ADDITIONAL AMOUNTS. All payments made by the Company on the
Notes (whether or not in the form of Definitive Notes) will 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 States, The Kingdom of
Sweden or any jurisdiction in which the Company or any Successor Company (as
defined in the Indenture) is organized or is otherwise resident for tax purposes
or any political subdivision thereof or any authority having power to tax
therein or any jurisdiction from or through which payment is made (each a
"Relevant Taxing Jurisdiction"), unless the withholding or deduction of Taxes is
then required by law. If any deduction or withholding for, or on account of, any
Taxes of any Relevant Taxing Jurisdiction shall at any time be required on any
payments made by the Company with respect to the Notes, including payments of
principal, Redemption Price, Liquidated Damages, interest or premium, the
Company will 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 Notes 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; except that no Additional Amounts will be payable with respect to:
(1) any Taxes that would not have been imposed but for the Holder or
beneficial owner having some connection with the Relevant Taxing
Jurisdiction (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 Relevant Taxing Jurisdiction) other
than by the mere holding of such Note or enforcement of rights
thereunder or the receipt of payments in respect thereof;
(2) any Taxes that are imposed or withheld by reason of the failure of
the Holder or beneficial owner of the Note to comply with a request of
the Company addressed to the Holder 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, protocol, or administrative practice of
the Relevant Taxing Jurisdiction as a precondition to exemption from
all or part of such Taxes;
(3) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction (unless by reason of the Company's actions
presentment could not have been made elsewhere and except to the extent
that the Holder would have been entitled to Additional Amounts had the
Notes not been so presented);
(4) any Note presented for payment (where 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 Note been presented on
the last day of such 30 day period);
(5) any Note where withholding taxes or any other deductions are
imposed on a payment to an individual and are required to be made
pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council
A-5
meeting of November 26-27, 2000 or any law implementing or complying
with, or introduced in order to conform to, such directive; or
(6) any Note presented for payment by or on behalf of a holder of the
Notes who would have been able to avoid such withholding taxes or any
other deductions by presenting the relevant Note to another Paying
Agent in a member state of the European Union.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Note been the Holder of the Note, it would not have been
entitled to payment of Additional Amounts by reason of clauses (1) to (4)
inclusive, above.
Upon request, the Company will provide the Trustee with documentation
satisfactory to the Trustee evidencing the payment of Additional Amounts. Copies
of such documentation will be made available to the Holders upon request.
4. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) to the Person in whose name this Note is
registered at the close of business on the Record Date for such interest.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in Euros. Immediately available
funds for the payment of the principal of (and premium, if any), interest,
Additional Amounts, if any, and Liquidated Damages, if any, on this Note 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.
5. PAYING AGENT AND REGISTRAR. Initially, Bankers Trust
Company will act as Paying Agent and Registrar and Deutsche Bank AG London will
act as Principal Paying Agent. In the event that a Paying Agent or transfer
agent is replaced, the Company will provide notice thereof (so long as the Notes
are Global Notes) published in a leading newspaper having general circulation in
New York City (which is expected to be THE WALL STREET JOURNAL) 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) and (in
the case of Definitive Notes), in addition to such publication, mailed by
first-class mail to each Holder's registered address. The Company may change any
Registrar without notice to the Holders. The Company or any of its Subsidiaries
may, subject to certain exceptions, act in any such capacity.
6. INDENTURE. The Company issued the Notes under an Indenture,
dated as of April 10, 2001 (the "Indenture"), among the Company, Bankers Trust
Company (the "Trustee") and Deutsche Bank AG London, as Principal Paying Agent
and transfer agent. This Note is one of a duly authorized issue of Notes (as
defined in the Indenture) of the Company designated as its 10-5/8% Senior
Secured Notes due 2011 (the "Initial Notes"). The Notes include the Initial
Notes and the Exchange Notes issued in exchange for the Initial Notes pursuant
to the Indenture. The terms of the Notes 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. Code Sections 77aaa-77bbbb) (the "TIA "), as in effect on the date
of the Indenture until such time as the Indenture is qualified under the TIA,
and thereafter as in effect on the date on which the Indenture is qualified
under the TIA.
A-6
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA
for a statement of them. The Notes are general obligations of the Company.
The Notes are not limited in aggregate principal amount and Additional Notes
(as defined in the Indenture) may be issued from time to time under the
Indenture, in each case subject to the terms of the Indenture; provided that
the aggregate principal amount of Initial Notes that will be issued on the
Closing Date (as defined in the Indenture) will not exceed EURO 250,000,000.
Each Holder, by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as the same may be amended from time to time.
7. RANKING AND SECURITY. The Notes will be general obligations
of the Company and will rank senior in right of payment to all existing and
future indebtedness of the Company that is, by its terms or by the terms of the
agreement or instrument governing such indebtedness, expressly subordinated in
right of payment to the Notes and PARI PASSU in right of payment with all
existing and future senior indebtedness of the Company. In addition, the Notes
are secured by the Collateral pursuant to the terms of the Security Documents
(as such terms are defined in the Indenture).
8. OPTIONAL REDEMPTION. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 31, 2006 upon not less
than 30 nor more than 60 days' prior notice at the redemption prices (expressed
as a percentage of principal amount) set forth below, plus accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages, if any
(each, a "Redemption Price"), to the date fixed by the Company for redemption (a
"Redemption Date") (subject to the right of Holders of record on the relevant
Record Date to receive interest, Additional Amounts, if any, and Liquidated
Damages, if any, due on the relevant interest payment date), if redeemed during
the twelve-month period beginning on March 31 of each of the years indicated
below:
YEAR NOTES
---- -----
2006..................................... 105.313%
2007..................................... 103.542%
2008..................................... 101.771%
2009 and thereafter...................... 100.00%
In addition, at any time prior to March 31, 2004, the Company
may on any one or more occasions redeem up to 35% of the original principal
amount of the Notes with the Net Cash Proceeds (as defined in the Indenture) of
one or more Public Equity Offerings (as defined in the Indenture) at a
redemption price of 110-5/8% of the principal amount thereof, plus accrued and
unpaid interest, if any, Additional Amounts, if any, and Liquidated Damages, if
any (each, a "Redemption Price"), to the date fixed by the Company for
redemption (a "Redemption Date") (subject to the right of Holders of record on
the relevant Record Date to receive interest, Additional Amounts, if any, and
Liquidated Damages, if any, due on the relevant interest payment date); PROVIDED
that (i) at least 65% of the original principal amount of the Notes remains
outstanding after each such redemption and (ii) the redemption occurs within 90
days after the closing of such Public Equity Offering.
A-7
9. SPECIAL TAX REDEMPTION. The Company, at its option, may
redeem, in whole, but not in part, the Notes at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders of Notes (which notice
shall be irrevocable), at a redemption price equal to the principal amount
thereof, together with accrued and unpaid interest and Liquidated Damages, if
any (a "Redemption Price"), 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 or rulings promulgated
thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes
effective on or after the Closing Date, or (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 Closing Date, the Company is, or on the next
interest payment date would be, required to pay Additional Amounts on the Notes,
and the Company determines that such payment obligation cannot be avoided by the
Company's 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 such Notes were then due. Prior to the publication
or, where relevant, mailing of any notice of redemption of the Notes 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 of the
Notes.
10. NOTICE OF REDEMPTION. Notice of redemption will be given
at least 30 days but not more than 60 days before the Redemption Date or Tax
Redemption Date, as the case may be, (i) so long as the Notes are in global
form, 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 Notes 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)) and (ii) in the case
of Definitive Notes, in addition to such publication, by mailing first-class
mail to each Holder's registered address. Notes in denominations of EURO 1,000
may be redeemed only in whole. The Trustee may select for redemption portions
(equal to EURO 1,000 or any integral multiple thereof) of the principal of Notes
that have denominations larger than EURO 1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
Additional Amounts, if any, or Liquidated Damages, if any, and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
11. CHANGE OF CONTROL OFFER. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to EURO 1,000 in principal amount and integral multiples thereof) of
the Notes on the Change of Control Payment
A-8
Date at a purchase price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, Additional Amounts,
if any, and Liquidated Damages, if any, to the date of purchase (subject to
the right of Holders of record on the relevant Record Date to receive
interest, Additional Amounts, if any, and Liquidated Damages, if any, on the
relevant interest payment date). Holders of Notes that are subject to an
offer to purchase will receive a Change of Control Offer from the Company
prior to any related Change of Control Payment Date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
12. LIMITATION ON DISPOSITION OF ASSETS. On the 361st day
after an Asset Disposition, the aggregate amount of Excess Proceeds from Asset
Dispositions exceeds EURO 10.0 million, the Company will be required to make an
offer (and "Asset Sale Offer") to all Holders of Notes and to the extent
required by the terms thereof, to all holders of other Indebtedness (other than
Subordinated Obligations) outstanding with similar provisions requiring the
Company to make an offer to purchase such Indebtedness with the proceeds from
any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal
amount of Notes and any such Pari Passu Notes to which the Asset Sale Offer
applies that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest, Additional Amounts, if any, and Liquidated Damages, if any, to
the date of purchase (and subject to the right of Holders of record on a Record
Date to receive interest on the relevant interest payment date, Additional
Amounts, if any, and Liquidated Damages, if any, in respect thereof). If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; PROVIDED, HOWEVER,
that no Notes of EURO 1,000 or less shall be purchased in part. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. DENOMINATIONS; FORM. The Global Notes are in registered
global form, without coupons, in denominations of EURO 1,000 and integral
multiples of EURO 1,000.
14. PERSONS DEEMED OWNERS. The registered Holder of this
Note shall be treated as the owner of it for all purposes, subject to the terms
of the Indenture.
15. UNCLAIMED FUNDS. If funds for the payment of principal,
interest, premium, Additional Amounts or Liquidated Damages remain unclaimed for
two years, the Trustee and the Paying Agents will repay the funds to the Company
at its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
A-9
17. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
18. RESTRICTIVE COVENANTS. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase its Capital Stock or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
19. SUCCESSORS. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
20. DEFAULTS AND REMEDIES. If an Event of Default (other than
an Event of Default specified in clause (7) of Section 6.1 of the Indenture)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
22. NO RECOURSE AGAINST OTHERS. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. AUTHENTICATION. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
A-10
24. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP, ISIN AND COMMON CODE NUMBERS. The Company will
cause CUSIP, ISIN and Common Code numbers to be printed on the Notes immediately
prior to the qualification of the Indenture under the TIA as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
26. GOVERNING LAW. THE INDENTURE AND THE NOTES, AND THE RIGHTS
AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
A-11
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
EURO ____. The following decreases/increases in the principal amount at maturity
of this Note have been made:
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
----------- ----------- ----------- --------------- ---------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.14 or Section 4.19 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.19 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.19 of the Indenture, state
the amount: EURO
Date:_____________
Your Signature:________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
A-13
EXHIBIT B
TO THE INDENTURE
[FORM OF FACE OF INITIAL DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
THIS SECURITY OF PREEM HOLDINGS AB (PUBL) (THE "ISSUER") HAS
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR ANY OTHER
JURISDICTION. 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 THE TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY
SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DAY ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE
ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE BY THE U.S. SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
THAT PURCHASES 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) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM AND PRIOR TO ANY OFFER, SALE OR TRANSFER PURSUANT
TO CLAUSES (A) THROUGH (E) TO REQUIRE THE TRANSFER CERTIFICATIONS REQUIRED
PURSUANT TO THE INDENTURE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
X-0
XXXXX XXXXXXXX XX (PUBL)
10-5/8% Senior Secured Note due 2011
Common Code No.: ________
ISIN No.: ________
[If Regulation S Security - CINS Number _________]
No.____ EURO ____________
PREEM HOLDINGS AB (PUBL), a company organized under the laws
of The Kingdom of Sweden (the "Company", which term includes any successor
corporation), for value received promises to pay ________ or registered assigns
upon surrender hereof the principal sum indicated on Schedule A hereof, on March
31, 2011.
Interest Payment Dates: March 31 and September 30, commencing
September 30, 2001
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
B-2
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
PREEM HOLDINGS AB (PUBL)
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
BANKERS TRUST COMPANY, as Trustee,
By: _________________________
Name:
Title:
Dated:
B-3
[FORM OF REVERSE]
PREEM HOLDINGS AB (PUBL)
10-5/8% Senior Secured Note due 2011
1. INTEREST. PREEM HOLDINGS AB (PUBL), a company organized
under the laws of The Kingdom of Sweden (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 10-5/8% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 31 and September 30, or if any such day is not a Business Day, on the
next succeeding Business Day, commencing September 30, 2001, to the Holder
hereof. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 10, 2001.
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 and on
overdue installments of interest (without regard to any applicable grace
periods), on any Additional Amounts, and on any Liquidated Damages, from time to
time on demand at the rate borne by the Notes plus 1.5% per annum to the extent
lawful. Any interest paid on this Note shall be increased to the extent
necessary to pay Additional Amounts as set forth herein.
2. LIQUIDATED DAMAGES. Pursuant to a Registration Rights
Agreement between the Company and the Initial Purchasers on behalf of Holders of
the Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 10-5/8% Senior Secured
Notes due 2011 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full. The Company shall provide written notice to the Trustee of
the accrual and amount of Liquidated Damages, if any, not less than ten (10)
Business Days prior to each interest payment date. Absent such notice, the
Trustee shall be conclusively entitled to presume that no Liquidated Damages
have accrued and are owing.
3. ADDITIONAL AMOUNTS. All payments made by the Company on the
Notes (whether or not in the form of Definitive Notes) will 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 Xxxxxx Xxxxxx,
X-0
The Kingdom of Sweden or any jurisdiction in which the Company or any
Successor Company (as defined in the Indenture) is organized or is otherwise
resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through
which payment is made (each a "Relevant Taxing Jurisdiction"), unless the
withholding or deduction of Taxes is then required by law. If any deduction
or withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction shall at any time be required on any payments made by the
Company with respect to the Notes, including payments of principal,
Redemption Price, Liquidated Damages, interest or premium, the Company will
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 Notes 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; except that no Additional Amounts will be payable with respect to:
(1) any Taxes that would not have been imposed but for the Holder or
beneficial owner having some connection with the Relevant Taxing
Jurisdiction (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 Relevant Taxing Jurisdiction) other
than by the mere holding of such Note or enforcement of rights
thereunder or the receipt of payments in respect thereof;
(2) any Taxes that are imposed or withheld by reason of the failure of
the Holder or beneficial owner of the Note to comply with a request of
the Company addressed to the Holder 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, protocol, or administrative practice of
the Relevant Taxing Jurisdiction as a precondition to exemption from
all or part of such Taxes;
(3) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction (unless by reason of the Company's actions
presentment could not have been made elsewhere and except to the extent
that the Holder would have been entitled to Additional Amounts had the
Notes not been so presented);
(4) any Note presented for payment (where 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 Note been presented on
the last day of such 30 day period);
(5) any Note where withholding taxes or any other deductions are
imposed on a payment to an individual and are required to be made
pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of November
26-27, 2000 or any law implementing or complying with, or introduced in
order to conform to, such directive; or
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(6) any Note presented for payment by or on behalf of a holder of the
Notes who would have been able to avoid such withholding taxes or any
other deductions by presenting the relevant Note to another Paying
Agent in a member state of the European Union.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, it would not have
been entitled to payment of Additional Amounts by reason of clauses (1) to (4)
inclusive, above.
Upon request, the Company will provide the Trustee with
documentation satisfactory to the Trustee evidencing the payment of Additional
Amounts. Copies of such documentation will be made available to the Holders upon
request.
4. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the interest
payment date for such interest. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company shall pay principal and interest in
Euros. The Company may make payments in respect of this Definitive Note of
premium, if any, interest, Additional Amounts, if any, and Liquidated Damages,
if any, by mailing a check to the registered address of each Holder thereof;
provided, however, that such payments in excess of EURO 100,000 to any payee or
group of related payees will be made, at the option of the Holder hereof, by
wire transfer of same day funds to the Paying Agent, who in turn will wire such
funds to the Holder hereof or to such other Person as the Holder hereof may in
writing to the Paying Agent direct if, but only if, the Paying Agent has
received written wire transfer instructions at least 15 days prior to the date
of any such payment.
5. PAYING AGENT AND REGISTRAR. Initially, Bankers Trust
Company will act as Paying Agent and Registrar and Deutsche Bank AG London will
act as Principal Paying Agent. In the event that a Paying Agent or transfer
agent is replaced, the Company will provide notice thereof (so long as the Notes
are Global Notes) published in a leading newspaper having general circulation in
New York City (which is expected to be THE WALL STREET JOURNAL) 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) and (in
the case of Definitive Notes), in addition to such publication, mailed by
first-class mail to each Holder's registered address. The Company may change any
Registrar without notice to the Holders. The Company or any of its Subsidiaries
may, subject to certain exceptions, act in any such capacity.
6. INDENTURE. The Company issued the Notes under an Indenture,
dated as of April 10, 2001 (the "Indenture"), among the Company, Bankers Trust
Company (the "Trustee") and Deutsche Bank AG London, as Principal Paying Agent
and transfer agent. This Note is one of a duly authorized issue of Notes (as
defined in the Indenture) of the Company designated as its 10-5/8% Senior
Secured Notes due 2011 (the "Initial Notes"). The Notes include the Initial
Notes and the Exchange Notes issued in exchange for the Initial Notes pursuant
to the Indenture. The terms of the Notes 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. Code Sections 77aaa-77bbbb) (the "TIA "), as in effect on the date
of the Indenture until such time as the Indenture is qualified under the
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TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Notes are subject to all such terms, and Holders of Notes are referred to the
Indenture and the TIA for a statement of them. The Notes are general
obligations of the Company. The Notes are not limited in aggregate principal
amount and Additional Notes (as defined in the Indenture) may be issued from
time to time under the Indenture, in each case subject to the terms of the
Indenture; provided that the aggregate principal amount of Initial Notes that
will be issued on the Closing Date (as defined in the Indenture) will not
exceed EURO 250,000,000. Each Holder, by accepting a Note, agrees to be bound
by all of the terms and provisions of the Indenture, as the same may be
amended from time to time.
7. RANKING AND SECURITY. The Notes will be general obligations
of the Company and will rank senior in right of payment to all future
indebtedness of the Company that is, by its terms or by the terms of the
agreement or instrument governing such indebtedness, expressly subordinated in
right of payment to the Notes and PARI PASSU in right of payment with all
existing and future senior indebtedness of the Company. In addition, the Notes
are secured by the Collateral pursuant to the terms of the Security Documents
(as such terms are defined in the Indenture).
8. OPTIONAL REDEMPTION. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 31, 2006 upon not less
than 30 nor more than 60 days' prior notice at the redemption prices (expressed
as a percentage of principal amount) set forth below, plus accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages, if any
(each, a "Redemption Price"), to the applicable date fixed by the Company for
redemption (a "Redemption Date") (subject to the right of Holders of record on
the relevant Record Date to receive interest, Additional Amounts, if any, and
Liquidated Damages, if any, due on the relevant interest payment date), if
redeemed during the twelve-month period beginning on March 31 of each of the
years indicated below:
YEAR NOTES
2006........................................ 105.313%
2007........................................ 103.542%
2008........................................ 101.771%
2009 and thereafter......................... 100.00%
In addition, at any time prior to March 31, 2004, the Company
may on any one or more occasions redeem up to 35% of the original principal
amount of the Notes with the Net Cash Proceeds (as defined in the Indenture) of
one or more Public Equity Offerings (as defined in the Indenture) at a
redemption price of 110-5/8% of the principal amount thereof, plus accrued and
unpaid interest, if any, Additional Amounts, if any, and Liquidated Damages, if
any (each, a "Redemption Price"), to the date fixed by the Company for
redemption (a "Redemption Date") (subject to the right of Holders of record on
the relevant Record Date to receive interest, Additional Amounts, if any, and
Liquidated Damages, if any, due on the relevant interest payment date); PROVIDED
that (i) at least 65% of the original principal amount of the Notes remains
outstanding after each such redemption and (ii) the redemption occurs within 90
days after the closing of such Public Equity Offering.
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9. SPECIAL TAX REDEMPTION. The Company, at its option, may
redeem, in whole, but not in part, the Notes at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders of Notes (which notice
shall be irrevocable), at a redemption price equal to the principal amount
thereof, together with accrued and unpaid interest and Liquidated Damages, if
any (a "Redemption Price"), 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 or rulings promulgated
thereunder) of any Relevant Taxing Jurisdiction affecting taxation which becomes
effective on or after the Closing Date, or (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 Closing Date, the Company is, or on the next
interest payment date would be, required to pay Additional Amounts on the Notes,
and the Company determines that such payment obligation cannot be avoided by the
Company's 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 such Notes were then due. Prior to the publication
or, where relevant, mailing of any notice of redemption of the Notes 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 of the
Notes.
10. NOTICE OF REDEMPTION. Notice of redemption will be given
at least 30 days but not more than 60 days before the Redemption Date, or Tax
Redemptions Date, as the case may be, (i) so long as the Notes are in global
form, 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 Notes 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)) and (ii) in the case
of Definitive Notes, in addition to such publication, by mailing first-class
mail to each Holder's registered address. Notes in denominations of EURO 1,000
may be redeemed only in whole. The Trustee may select for redemption portions
(equal to EURO 1,000 or any integral multiple thereof) of the principal of Notes
that have denominations larger than EURO 1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
Additional Amounts, if any, or Liquidated Damages, if any, and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
11. CHANGE OF CONTROL OFFER. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to EURO 1,000 in principal amount and integral multiples thereof) of
the Notes on the Change of Control Payment
B-8
Date at a purchase price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest, if any, Additional Amounts,
if any, and Liquidated Damages, if any, to the date of purchase (subject to
the right of Holders of record on the relevant Record Date to receive
interest, Additional Amounts, if any, and Liquidated Damages, if any, on the
relevant interest payment date). Holders of Notes that are subject to an
offer to purchase will receive a Change of Control Offer from the Company
prior to any related Change of Control Payment Date and may elect to have
such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
12. LIMITATION ON DISPOSITION OF ASSETS. On the 361st day
after an Asset Disposition, the aggregate amount of Excess Proceeds from Asset
Dispositions exceeds EURO 10.0 million, the Company will be required to make an
offer (and "Asset Sale Offer") to all Holders of Notes and to the extent
required by the terms thereof, to all holders of other Indebtedness (other than
Subordinated Obligations) outstanding with similar provisions requiring the
Company to make an offer to purchase such Indebtedness with the proceeds from
any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal
amount of Notes and any such Pari Passu Notes to which the Asset Sale Offer
applies that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest, Additional Amounts, if any, and Liquidated Damages, if any, to
the date of purchase (and subject to the right of Holders of record on a Record
Date to receive interest on the relevant interest payment date, Additional
Amounts, if any, and Liquidated Damages, if any, in respect thereof). If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; PROVIDED, HOWEVER,
that no Notes of EURO 1,000 or less shall be purchased in part. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. DENOMINATIONS; FORM. The Definitive Notes are in bearer
form, without coupons, in denominations of EURO 1,000 and integral multiples
of EURO 1,000.
14. PERSONS DEEMED OWNERS. The registered Holder of this Note
shall be treated as the owner of it for all purposes, subject to the terms of
the Indenture.
15. UNCLAIMED FUNDS. If funds for the payment of principal,
interest, premium, Additional Amounts or Liquidated Damages remain unclaimed for
two years, the Trustee and the Paying Agents will repay the funds to the Company
at its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
B-9
17. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
18. RESTRICTIVE COVENANTS. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase its Capital Stock or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
19. SUCCESSORS. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
20. DEFAULTS AND REMEDIES. If an Event of Default (other than
an Event of Default specified in clause (7) of Section 6.1 of the Indenture)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of and may otherwise deal with the Company, its Subsidiaries or their
respective Affiliates as if it were not the Trustee.
22. NO RECOURSE AGAINST OTHERS. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. AUTHENTICATION. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
B-10
24. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP, ISIN AND COMMON CODE NUMBERS. The Company will
cause CUSIP, ISIN and Common Code numbers to be printed on the Notes immediately
prior to the qualification of the Indenture under the TIA as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
26. GOVERNING LAW. THE INDENTURE AND THE NOTES, AND THE RIGHTS
AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
B-11
-----------------------------------------------------------
ASSIGNMENT FORM
To assign this Note fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent may substitute another to
act for him.
--------------------------------------------------------------------
Date: Your Signature:
------------- ----------------------
--------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
B-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.14 or Section 4.19 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.19 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.19 of the Indenture, state
the amount: EURO
Date:
-------------
Your Signature:
-------------------
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:
---------------------------------------
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
B-13
EXHIBIT C
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE GLOBAL NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
PREEM HOLDINGS AB (PUBL)
10-5'/8% Senior Secured Note due 2011
Common Code No.: ________
ISIN No.: ________
No.____ EURO____________
PREEM HOLDINGS AB (PUBL), a company organized under the laws
of The Kingdom of Sweden (the "Company", which term includes any successor
corporation), for value received promises to pay to ________ or registered
assigns upon surrender hereof the principal sum indicated on Schedule A hereof,
on March 31, 2011.
Interest payment dates: March 31 and September 30,
commencing September 30, 2001
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
C-1
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
PREEM HOLDINGS AB (PUBL)
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
BANKERS TRUST COMPANY, as Trustee,
By:
------------------------
Name:
Title:
Dated:
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[Form of REVERSE]
PREEM HOLDINGS AB (PUBL)
10-5/8% Senior Secured Note due 2011
1. INTEREST. PREEM HOLDINGS AB (PUBL), a company organized
under the laws of The Kingdom of Sweden (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 10-5/8% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 31 and September 30, or if any such day is not a Business Day, on the
next succeeding Business Day, commencing September 30, 2001, to the Holder
hereof. Notwithstanding any exchange of this Note for a Definitive Note during
the period starting on a Record Date relating to such Definitive Note and ending
on the immediately succeeding interest payment date, the interest due on such
interest payment date shall be payable to the Person in whose name this Global
Note is registered at the close of business on the Record Date for such
interest. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 10, 2001.
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, overdue
installments of interest (without regard to any applicable grace periods) and
any Additional Amounts from time to time on demand at the rate borne by the
Notes plus 1.5% per annum to the extent lawful. Any interest paid on this Note
shall be increased to the extent necessary to pay Additional Amounts as set
forth herein.
2. ADDITIONAL AMOUNTS. All payments made by the Company on the
Notes (whether or not in the form of Definitive Notes) will 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 States, The Kingdom of
Sweden or any jurisdiction in which the Company or any Successor Company (as
defined in the Indenture) is organized or is otherwise resident for tax purposes
or any political subdivision thereof or any authority having power to tax
therein or any jurisdiction from or through which payment is made (each a
"Relevant Taxing Jurisdiction"), unless the withholding or deduction of Taxes is
then required by law. If any deduction or withholding for, or on account of, any
Taxes of any Relevant Taxing Jurisdiction shall at any time be required on any
payments made by the Company with respect to the Notes, including payments of
principal, Redemption Price, interest or premium, the Company will 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 Notes
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; except that no
Additional Amounts will be payable with respect to:
C-3
(1) any Taxes that would not have been imposed but for the Holder or
beneficial owner having some connection with the Relevant Taxing
Jurisdiction (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 Relevant Taxing Jurisdiction) other
than by the mere holding of such Note or enforcement of rights
thereunder or the receipt of payments in respect thereof;
(2) any Taxes that are imposed or withheld by reason of the failure of
the Holder or beneficial owner of the Note to comply with a request of
the Company addressed to the Holder 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, protocol, or administrative practice of
the Relevant Taxing Jurisdiction as a precondition to exemption from
all or part of such Taxes;
(3) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction (unless by reason of the Company's actions
presentment could not have been made elsewhere and except to the extent
that the Holder would have been entitled to Additional Amounts had the
Notes not been so presented);
(4) any Note presented for payment (where 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 Note been presented on
the last day of such 30 day period); or
(5) any Note where withholding taxes or any other deductions are
imposed on a payment to an individual and are required to be made
pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of November
26-27, 2000 or any law implementing or complying with, or introduced in
order to conform to, such directive; or
(6) any Note presented for payment by or on behalf of a holder of the
Notes who would have been able to avoid such withholding taxes or any
other deductions by presenting the relevant Note to another Paying
Agent in a member state of the European Union.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, it would not have
been entitled to payment of Additional Amounts by reason of clauses (1) to (4)
inclusive, above.
Upon request, the Company will provide the Trustee with
documentation satisfactory to the Trustee evidencing the payment of Additional
Amounts. Copies of such documentation will be made available to the Holders upon
request.
3. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) to the Person in whose name this Note is
registered at the close of business on the Record Date for such interest.
Holders must surrender Notes to a Paying Agent to collect
C-4
principal payments. The Company shall pay principal and interest in Euros.
Immediately available funds for the payment of the principal of (and premium,
if any), interest and Additional Amounts, if any, on this Note 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.
4. PAYING AGENT AND REGISTRAR. Initially, Bankers Trust
Company will act as Paying Agent and Registrar and Deutsche Bank AG London will
act as Principal Paying Agent. In the event that a Paying Agent or transfer
agent is replaced, the Company will provide notice thereof (so long as the Notes
are Global Notes) published in a leading newspaper having general circulation in
New York City (which is expected to be THE WALL STREET JOURNAL) 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) and (in
the case of Definitive Notes), in addition to such publication, mailed by
first-class mail to each Holder's registered address. The Company may change any
Registrar without notice to the Holders. The Company or any of its Subsidiaries
may, subject to certain exceptions, act in any such capacity.
5. INDENTURE. The Company issued the Notes under an Indenture,
dated as of April 10, 2001 (the "Indenture"), among the Company, Bankers Trust
Company (the "Trustee") and Deutsche Bank AG London, as Principal Paying Agent
and transfer agent. This Note is one of a duly authorized issue of Exchange
Notes of the Company designated as its 10-5/8% Senior Secured Notes due 2011.
The terms of the Notes 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. Code
Sections 77aaa-77bbbb) (the "TIA "), as in effect on the date of the Indenture
until such time as the Indenture is qualified under the TIA, and thereafter as
in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are general obligations of the Company. The Notes
are not limited in aggregate principal amount and Additional Notes (as defined
in the Indenture) may be issued from time to time under the Indenture, in each
case subject to the terms of the Indenture; provided that the aggregate
principal amount of Initial Notes that will be issued on the Closing Date (as
defined in the Indenture) will not exceed EURO 250,000,000. Each Holder, by
accepting a Note, agrees to be bound by all of the terms and provisions of the
Indenture, as the same may be amended from time to time.
6. RANKING AND SECURITY. The Notes will be general obligations
of the Company and will rank senior in right of payment to all existing and
future indebtedness of the Company that is, by its terms or by the terms of the
agreement or instrument governing such indebtedness, expressly subordinated in
right of payment to the Notes and PARI PASSU in right of payment with all
existing and future senior indebtedness of the Company. In addition, the Notes
are secured by the Collateral pursuant to the terms of the Security Documents
(as such terms are defined in the Indenture).
7. OPTIONAL REDEMPTION. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 31, 2006 upon not less
than 30 nor more than 60 days' prior notice at the redemption prices (expressed
as a percentage of principal amount) set
C-5
forth below, plus accrued and unpaid interest, if any, and Additional
Amounts, if any (each, a "Redemption Price"), to the date fixed by the
Company for redemption (a "Redemption Date") (subject to the right of Holders
of record on the relevant Record Date to receive interest, and Additional
Amounts, if any, due on the relevant interest payment date), if redeemed
during the twelve-month period beginning on March 31 of each of the years
indicated below:
YEAR NOTES
---- -----
2006................................ 105.313%
2007................................ 103.542%
2008................................ 101.771%
2009 and thereafter................. 100.00%
In addition, at any time prior to March 31, 2004, the Company
may on any one or more occasions redeem up to 35% of the original principal
amount of the Notes with the Net Cash Proceeds (as defined in the Indenture) of
one or more Public Equity Offerings (as defined in the Indenture) at a
redemption price of 110-5/8% of the principal amount thereof, plus accrued and
unpaid interest, if any, and Additional Amounts, if any (each, a "Redemption
Price"), to the date fixed by the Company for redemption (a "Redemption Date")
(subject to the right of Holders of record on the relevant Record Date to
receive interest and Additional Amounts, if any, due on the relevant interest
payment date); PROVIDED that (i) at least 65% of the original principal amount
of the Notes remains outstanding after each such redemption and (ii) the
redemption occurs within 90 days after the closing of such Public Equity
Offering.
8. SPECIAL TAX REDEMPTION. The Company, at its option, may
redeem, in whole, but not in part, the Notes at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders of Notes (which notice
shall be irrevocable), at a redemption price equal to the principal amount
thereof, together with accrued and unpaid interest (a "Redemption Price"), 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 or rulings promulgated thereunder) of any Relevant
Taxing Jurisdiction affecting taxation which becomes effective on or after the
Closing Date, or (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 Closing Date, the Company is, or on the next interest payment date
would be, required to pay Additional Amounts on the Notes, and the Company
determines that such payment obligation cannot be avoided by the Company's
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 such Notes were then due. Prior to the publication or,
where relevant, mailing of any notice of redemption of the Notes 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 of the Notes.
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9. NOTICE OF REDEMPTION. Notice of redemption will be given at
least 30 days but not more than 60 days before the Redemption Date or Tax
Redemption Date, as the case may be, (i) so long as the Notes are in global
form, 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 Notes 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)) and (ii) in the case
of Definitive Notes, in addition to such publication, by mailing first-class
mail to each Holder's registered address. Notes in denominations of EURO 1,000
may be redeemed only in whole. The Trustee may select for redemption portions
(equal to EURO 1,000 or any integral multiple thereof) of the principal of Notes
that have denominations larger than EURO 1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest or
Additional Amounts, if any, and the only right of the Holders of such Notes will
be to receive payment of the Redemption Price.
10. CHANGE OF CONTROL OFFER. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to EURO 1,000 in principal amount and integral multiples thereof) of
the Notes on the Change of Control Payment Date at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, and Additional Amounts, if any, to the date of purchase
(subject to the right of Holders of record on the relevant Record Date to
receive interest and Additional Amounts, if any, on the relevant interest
payment date). Holders of Notes that are subject to an offer to purchase will
receive a Change of Control Offer from the Company prior to any related Change
of Control Payment Date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" appearing below.
11. LIMITATION ON DISPOSITION OF ASSETS. On the 361st day
after an Asset Disposition, the aggregate amount of Excess Proceeds from Asset
Dispositions exceeds EURO 10.0 million, the Company will be required to make an
offer (and "Asset Sale Offer") to all Holders of Notes and to the extent
required by the terms thereof, to all holders of other Indebtedness (other than
Subordinated Obligations) outstanding with similar provisions requiring the
Company to make an offer to purchase such Indebtedness with the proceeds from
any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal
amount of Notes and any such Pari Passu Notes to which the Asset Sale Offer
applies that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Additional Amounts, if any, to the date of purchase (and
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). If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, subject to applicable law, the
Trustee shall select the Notes to be redeemed in accordance with the Indenture;
PROVIDED, HOWEVER, that no Notes of EURO 1,000 or less shall be purchased in
part. Holders of Notes that are the subject of an offer to purchase will receive
an Asset Sale Offer from the Company prior to any related purchase date and may
elect to have
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such Notes purchased by completing the form entitled "Option of Holders to
Elect Purchase" appearing below.
12. DENOMINATIONS; FORM. The Global Notes are in registered
global form, without coupons, in denominations of EURO 1,000 and integral
multiples of EURO 1,000.
13. PERSONS DEEMED OWNERS. The registered Holder of this Note
shall be treated as the owner of it for all purposes, subject to the terms of
the Indenture.
14. UNCLAIMED FUNDS. If funds for the payment of principal,
interest, premium, or Additional Amounts remain unclaimed for two years, the
Trustee and the Paying Agents will repay the funds to the Company at its written
request. After that, all liability of the Trustee and such Paying Agents with
respect to such funds shall cease.
15. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. RESTRICTIVE COVENANTS. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Capital Stock or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
18. SUCCESSORS. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
19. DEFAULTS AND REMEDIES. If an Event of Default (other than
an Event of Default specified in clause (7) of Section 6.1 of the Indenture)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes
C-8
then outstanding to direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal,
premium, interest and Additional Amounts, if any, including an accelerated
payment) if it determines that withholding notice is in their interest.
20. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
21. NO RECOURSE AGAINST OTHERS. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. AUTHENTICATION. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
23. ABBREVIATIONS AND DEFINED TERMS. Customary abbreviations
may be used in the name of a Holder of a Note or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
24. CUSIP, ISIN AND COMMON CODE NUMBERS. The Company will
cause CUSIP, ISIN and Common Code numbers to be printed on the Notes immediately
prior to the qualification of the Indenture under the TIA as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
25. GOVERNING LAW. THE INDENTURE AND THE NOTES, AND THE RIGHTS
AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
EURO _____. The following decreases/increases in the principal amount at
maturity of this Note have been made:
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.14 or Section 4.19 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.19 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.19 of the Indenture, state
the amount: EURO
Date:_____________
Your Signature:________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
C-11
EXHIBIT D
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
PREEM HOLDINGS AB (PUBL)
10-5/8% Senior Secured due 2011
Common Code No.: ________
ISIN No.: ________
No.____ Euro____________
PREEM HOLDINGS AB (PUBL), a company organized under the laws
of The Kingdom of Sweden (the "Company", which term includes any successor
corporation), for value received promises to pay to ________ or registered
assigns upon surrender hereof the principal sum indicated on Schedule A hereof,
on April __, 2011.
Interest payment dates: March 31 and September 30,
commencing September 30, 2001
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
D-1
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
PREEM HOLDINGS AB (PUBL)
By:
------------------------
Name:
Title:
By:
-----------------------
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
BANKERS TRUST COMPANY, as Trustee,
By:
--------------------------
Name:
Title:
Dated:
D-2
[Form of REVERSE]
PREEM HOLDINGS AB (PUBL)
10-5/8% Senior Secured Note due 2011
1. INTEREST. PREEM HOLDINGS AB (PUBL), a company organized
under the laws of The Kingdom of Sweden (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 10-5/8% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 31 and September 30, or if any such day is not a Business Day on the
next succeeding Business Day, commencing September 30, 2001, to the Holder
hereof. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 10, 2001.
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 and on
overdue installments of interest (without regard to any applicable grace
periods), and on any Additional Amounts, from time to time on demand at the rate
borne by the Notes plus 1.5% per annum to the extent lawful. Any interest paid
on this Note shall be increased to the extent necessary to pay Additional
Amounts as set forth herein.
2. ADDITIONAL AMOUNTS. All payments made by the Company on the
Notes (whether or not in the form of Definitive Notes) will 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 States, The Kingdom of
Sweden or any jurisdiction in which the Company or any Successor Company (as
defined in the Indenture) is organized or is otherwise resident for tax purposes
or any political subdivision thereof or any authority having power to tax
therein or any jurisdiction from or through which payment is made (each a
"Relevant Taxing Jurisdiction"), unless the withholding or deduction of Taxes is
then required by law. If any deduction or withholding for, or on account of, any
Taxes of any Relevant Taxing Jurisdiction shall at any time be required on any
payments made by the Company with respect to the Notes, including payments of
principal, Redemption Price, interest or premium, the Company will 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 Notes
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; except that no
Additional Amounts will be payable with respect to:
(1) any Taxes that would not have been imposed but for the Holder or
beneficial owner having some connection with the Relevant Taxing
Jurisdiction (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 Relevant Taxing Jurisdiction) other
than by the mere holding of such Note or enforcement of rights
thereunder or the receipt of payments in respect thereof;
D-3
(2) any Taxes that are imposed or withheld by reason of the failure of
the Holder or beneficial owner of the Note to comply with a request of
the Company addressed to the Holder 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, protocol, or administrative practice of
the Relevant Taxing Jurisdiction as a precondition to exemption from
all or part of such Taxes;
(3) except in the case of the winding up of the Company, any Note
presented for payment (where presentation is required) in the Relevant
Taxing Jurisdiction (unless by reason of the Company's actions
presentment could not have been made elsewhere and except to the extent
that the Holder would have been entitled to Additional Amounts had the
Notes not been so presented);
(4) any Note presented for payment (where 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 Note been presented on
the last day of such 30 day period); or
(5) any Note where withholding taxes or any other deductions are
imposed on a payment to an individual and are required to be made
pursuant to any European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting of November
26-27, 2000 or any law implementing or complying with, or introduced in
order to conform to, such directive; or
(6) any Note presented for payment by or on behalf of a holder of the
Notes who would have been able to avoid such withholding taxes or any
other deductions by presenting the relevant Note to another Paying
Agent in a member state of the European Union.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, it would not have
been entitled to payment of Additional Amounts by reason of clauses (1) to (4)
inclusive, above.
Upon request, the Company will provide the Trustee with
documentation satisfactory to the Trustee evidencing the payment of Additional
Amounts. Copies of such documentation will be made available to the Holders upon
request.
3. METHOD OF PAYMENT. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date for such interest. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in Euros. The Company may make payments in
respect of this Definitive Note of premium, if any, interest, Additional
Amounts, if any, and Liquidated Damages, if any, by mailing a check to the
registered address of each Holder thereof; provided, however, that such payments
in excess of E100,000 to any payee or group of related payees will be made,
at the option of the Holder hereof, by wire transfer of same day funds to the
Paying Agent, who in turn will wire such funds to the Holder hereof or to
D-4
such other Person as the Holder hereof may in writing to the Paying Agent direct
if, but only if, the Paying Agent has received written wire transfer
instructions at least 15 days prior to the date of any such payment.
4. PAYING AGENT AND REGISTRAR. Initially, Bankers Trust
Company will act as Paying Agent and Registrar and Deutsche Bank AG London will
act as Principal Paying Agent. In the event that a Paying Agent or transfer
agent is replaced, the Company will provide notice thereof (so long as the Notes
are Global Notes) published in a leading newspaper having general circulation in
New York City (which is expected to be THE WALL STREET JOURNAL) 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) and (in
the case of Definitive Notes), in addition to such publication, mailed by
first-class mail to each Holder's registered address. The Company may change any
Registrar without notice to the Holders. The Company or any of its Subsidiaries
may, subject to certain exceptions, act in any such capacity.
5. INDENTURE. The Company issued the Notes under a Indenture,
dated as of April 10, 2001 (the "Indenture"), among the Company, Bankers Trust
Company (the "Trustee") and Deutsche Bank AG London, as Principal Paying Agent
and transfer agent. This Note is one of a duly authorized issue of Exchange
Notes (as defined in the Indenture) of the Company designated as its 10-5/8%
Senior Secured Notes due 2011. The terms of the Notes 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. Code Sections 77aaa-77bbbb) (the "TIA "), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and the TIA for a statement of them. The Notes are
general obligations of the Company. The Notes are not limited in aggregate
principal amount and Additional Notes (as defined in the Indenture) may be
issued from time to time under the Indenture, in each case subject to the terms
of the Indenture; provided that the aggregate principal amount of Initial Notes
that will be issued on the Closing Date (as defined in the Indenture) will not
exceed E250,000,000. Each Holder, by accepting a Note, agrees to be bound by all
of the terms and provisions of the Indenture, as the same may be amended from
time to time.
6. RANKING AND SECURITY. The Notes will be general obligations
of the Company and will rank senior in right of payment to all existing and
future indebtedness of the Company that is, by its terms or by the terms of the
agreement or instrument governing such indebtedness, expressly subordinated in
right of payment to the Notes and PARI PASSU in right of payment with all
existing and future senior indebtedness of the Company. In addition, the Notes
are secured by the Collateral pursuant to the terms of the Security Documents
(as such terms are defined in the Indenture).
7. OPTIONAL REDEMPTION. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 31, 2006 upon not less
than 30 nor more than 60 days' prior notice at the redemption prices (expressed
as a percentage of principal amount) set forth below, plus accrued and unpaid
interest, if any, and Additional Amounts, if any (each, a "Redemption Price"),
to the date fixed by the Company for redemption (a "Redemption Date")
D-5
(subject to the right of Holders of record on the relevant Record Date to
receive interest, and Additional Amounts, if any, due on the relevant interest
payment date), if redeemed during the twelve-month period beginning on March 31
of each of the years indicated below:
YEAR NOTES
---- -----
2006 ....................................................... 105.313%
2007 ....................................................... 103.542%
2008 ....................................................... 101.771%
2009 and thereafter ........................................ 100.00%
In addition, at any time prior to March 31, 2004, the Company
may on any one or more occasions redeem up to 35% of the original principal
amount of the Notes with the Net Cash Proceeds (as defined in the Indenture) of
one or more Public Equity Offerings (as defined in the Indenture) at a
redemption price of 10-5/8% of the principal amount thereof, plus accrued and
unpaid interest, if any, and Additional Amounts, if any (each, a "Redemption
Price"), to the date fixed by the Company for redemption (a "Redemption Date")
(subject to the right of Holders of record on the relevant Record Date to
receive interest and Additional Amounts, if any, due on the relevant interest
payment date); PROVIDED that (i) at least 65% of the original principal amount
of the Notes remains outstanding after each such redemption and (ii) the
redemption occurs within 90 days after the closing of such Public Equity
Offering.
8. SPECIAL TAX REDEMPTION. The Company, at its option, may
redeem, in whole, but not in part, the Notes at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders of Notes (which notice
shall be irrevocable), at a redemption price equal to the principal amount
thereof, together with accrued and unpaid interest (a "Redemption Price"), 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 or rulings promulgated thereunder) of any Relevant
Taxing Jurisdiction affecting taxation which becomes effective on or after the
Closing Date, or (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 Closing Date, the Company is, or on the next interest payment date
would be, required to pay Additional Amounts on the Notes, and the Company
determines that such payment obligation cannot be avoided by the Company's
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 such Notes were then due. Prior to the publication or,
where relevant, mailing of any notice of redemption of the Notes 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 of the Notes.
D-6
9. NOTICE OF REDEMPTION. Notice of redemption will be given at
least 30 days but not more than 60 days before the Redemption Date or Tax
Redemption Date, as the case may be, (i) so long as the Notes are in global
form, 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 Notes 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)) and (ii) in the case
of Definitive Notes, in addition to such publication, by mailing first-class
mail to each Holder's registered address. Notes in denominations of E1,000 may
be redeemed only in whole. The Trustee may select for redemption portions (equal
to E1,000 or any integral multiple thereof) of the principal of Notes that have
denominations larger than E1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest or
Additional Amounts, if any, and the only right of the Holders of such Notes will
be to receive payment of the Redemption Price.
10. CHANGE OF CONTROL OFFER. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to E1,000 in principal amount and integral multiples thereof) of the
Notes on the Change of Control Payment Date at a purchase price in cash equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest,
if any, and Additional Amounts, if any, to the date of purchase (subject to the
right of Holders of record on the relevant Record Date to receive interest and
Additional Amounts, if any, on the relevant interest payment date). Holders of
Notes that are subject to an offer to purchase will receive a Change of Control
Offer from the Company prior to any related Change of Control Payment Date and
may elect to have such Notes purchased by completing the form entitled "Option
of Holder to Elect Purchase" appearing below.
11. LIMITATION ON DISPOSITION OF ASSETS. On the 361st day
after an Asset Disposition, the aggregate amount of Excess Proceeds from Asset
Dispositions exceeds E10.0 million, the Company will be required to make an
offer (and "Asset Sale Offer") to all Holders of Notes and to the extent
required by the terms thereof, to all holders of other Indebtedness (other than
Subordinated Obligations) outstanding with similar provisions requiring the
Company to make an offer to purchase such Indebtedness with the proceeds from
any Asset Disposition ("Pari Passu Notes"), to purchase the maximum principal
amount of Notes and any such Pari Passu Notes to which the Asset Sale Offer
applies that may be purchased out of the Excess Proceeds, at an offer price in
cash in an amount equal to 100% of the principal amount thereof plus accrued and
unpaid interest and Additional Amounts, if any, to the date of purchase (and
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). If the aggregate principal amount of Notes surrendered by Holders
thereof exceeds the amount of Excess Proceeds, subject to applicable law, the
Trustee shall select the Notes to be redeemed in accordance with the Indenture;
PROVIDED, HOWEVER, that no Notes of E1,000 or less shall be purchased in part.
Holders of Notes that are the subject of an offer to purchase will receive an
Asset Sale Offer from the Company prior to any related purchase date and may
elect to have
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such Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
12. DENOMINATIONS; FORM. The Definitive Notes are in bearer
form, without coupons, in denominations of E1,000 and integral multiples of
E1,000.
13. PERSONS DEEMED OWNERS. The Holder of this Note shall be
treated as the owner of it for all purposes, subject to the terms of the
Indenture.
14. UNCLAIMED FUNDS. If funds for the payment of principal,
interest, premium or Additional Amounts remain unclaimed for two years, the
Trustee and the Paying Agents will repay the funds to the Company at its written
request. After that, all liability of the Trustee and such Paying Agents with
respect to such funds shall cease.
15. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from its
obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. AMENDMENT; SUPPLEMENT; WAIVER. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. RESTRICTIVE COVENANTS. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Capital Stock or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
18. SUCCESSORS. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
19. DEFAULTS AND REMEDIES. If an Event of Default (other than
an Event of Default specified in clause (7) of Section 6.1 of the Indenture)
occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee is not obligated to enforce the Indenture
or the Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes
D-8
then outstanding to direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of Notes notice of any continuing Default
or Event of Default (except a Default in payment of principal, premium, interest
and Additional Amounts, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. TRUSTEE DEALINGS WITH COMPANY. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
21. NO RECOURSE AGAINST OTHERS. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. AUTHENTICATION. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
23. ABBREVIATIONS AND DEFINED TERMS. Customary
abbreviations may be used in the name of a Holder of a Note or an assignee,
such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act). Unless otherwise defined herein, terms defined in the Indenture
are used herein as defined therein.
24. CUSIP, ISIN AND COMMON CODE NUMBERS. The Company will
cause CUSIP, ISIN and Common Code numbers to be printed on the Notes immediately
prior to the qualification of the Indenture under the TIA as a convenience to
the Holders of the Notes. No representation is made as to the accuracy of such
numbers as printed on the Notes and reliance may be placed only on the other
identification numbers printed hereon.
25. GOVERNING LAW. THE INDENTURE AND THE NOTES, AND THE RIGHTS
AND DUTIES OF THE PARTIES HEREUNDER AND THEREUNDER, SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
D-9
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
-----------------------------------------------------------
Date: _____________ Your Signature: ______________________
-----------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
D-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.14 or Section 4.19 of the Indenture, check the
appropriate box:
Section 4.14 [ ] Section 4.19 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.14 or Section 4.19 of the Indenture, state
the amount: EURO
Date:_____________
Your Signature:________________
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
D-11
EXHIBIT E
TO THE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Transfers pursuant to Section 2.7(b) of the Indenture)
Preem Holdings AB (Publ)
c/o Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xx. Xxxxx Xx
RE: 10-5/8% Senior Secured Notes due 2011
(the "Notes") of Preem Holdings AB (Publ)
Reference is hereby made to the Indenture dated as of April
10, 2001 (the "Indenture") between Preem Holdings AB (Publ) and Bankers Trust
Company, as Trustee, Registrar and Paying Agent. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
This letter relates to EURO _________ (being any integral
multiple of EURO 1,000) principal amount of Notes beneficially held through
interests in the Rule 144A Global Note (ISIN No. XS0127762259; Common Code No.
012776225) with Euroclear and Clearstream Banking in the name of ________(the
"Transferor") account number ________. The Transferor hereby requests that on
[INSERT DATE] such beneficial interest in the Rule 144A Global Note be
transferred or exchanged for an interest in the Regulation S Global Note (ISIN
No. XS0125266527; Common Code No. 012776225) in the same principal denomination
and transfer to _________ (account no. ________). If this is a partial transfer,
a minimum amount of EURO 1,000 and any integral multiple of EURO 1,000 in excess
thereof of the Rule 144A Global Note will remain outstanding.
In connection with such request and in respect of such Notes,
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S
under the Securities Act, and accordingly the Transferor further certifies that:
(A) (1) the offer of the Notes was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee
was outside the United States or (b) the transaction was
E-1
executed in, on or through the facilities of a designated
offshore securities market and neither the Transferor nor any
person acting on our behalf knows that the transaction was
prearranged with a buyer in the United States,
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) 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.
OR
(B) such transfer is being made in accordance with Rule 144 under the
Securities Act.
E-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company. 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: _____________
[Name of Transferor]
By:________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
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E-3
EXHIBIT F
TO THE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE
(Transfers pursuant to Section 2.7(c) of the Indenture)
Preem Holdings AB (Publ)
c/o Bankers Trust Company
c/o Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx
Attention: Xx. Xxxxx Xx
RE: 10-5/8% Senior Secured Notes due 2011
(the "Notes") of Preem Holdings AB (Publ)
Reference is hereby made to the Indenture dated as of April
10, 2001 (the "Indenture") between Preem Holdings AB (Publ) and Bankers Trust
Company, as Trustee, Registrar and Paying Agent. Capitalized terms used but not
defined herein shall have the meanings given them in the Indenture.
This letter relates to EURO __________ (being any integral
multiple of EURO 1,000) principal amount of Notes beneficially held through
_______, as Common Depositary for Euroclear and Clearstream Banking, interests
in the Regulation S Global Note (ISIN No. XS0125266527; Common Code No.
012526652) with [Euroclear] [Clearstream Banking] (Common Code No. _______)
through _______, as Common Depositary for Euroclear and Clearstream Banking, in
the name of _______________ (the "Transferor"), [Euroclear] [Clearstream
Banking] account number _________ . The Transferor hereby requests that on
[INSERT DATE] such beneficial interest in the Regulation S Global Note be
transferred or exchanged for an interest in the Rule 144A Global Note (ISIN No.
XS0127762259; Common Code No. 012776225) in the same principal denomination and
transfer to ______________ (account no. ________). If this is a partial
transfer, a minimum of EURO 1,000 and any integral multiple of EURO 1,000 in
excess thereof of the Regulation S Global Note will remain outstanding.
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the Securities Act to a transferee that the
Transfer or reasonably believes is purchasing the Notes for its own account or
an account with respect to which the transferee exercises sole investment
discretion and the transferee and any such account is a "qualified institutional
buyer" within the meaning of Rule 144A, in each case in a transaction meeting
the requirements of Rule 144A and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction.
F-1
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
Dated:_______________
[Name of Transferor]
By:___________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
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F-2
