Exhibit 2.2
Execution Version
FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental Indenture") dated
as of 3 April 2003, among Grohe Holding GmbH, a German company with limited
liability (the "Company"), and The Bank of New York, London Branch, as trustee
(the "Trustee").
WHEREAS, the Company has executed and delivered to the Trustee an
Indenture dated as of 13 November 2000 (the "Indenture"), providing for the
issuance of 11.5% Senior Notes due 2010 by the Company;
WHEREAS, Section 9.01 of the Indenture provides that the Company and the
Trustee may amend the Indenture without the consent of Holders to make, among
other things, any change that does not adversely affect the rights of the
registered holders of the Notes ("Holders");
WHEREAS, Section 9.02 of the Indenture provides that the Company and the
Trustee, in certain circumstances, may amend the Indenture with the written
consent of Holders of at least a majority in principal amount of the then
outstanding Notes;
WHEREAS, the Company desires to amend the Indenture, as set forth in
Section 2 through Section 5 of this First Supplemental Indenture;
WHEREAS, Holders of at least a majority in aggregate principal amount of
the Notes outstanding have consented to the amendments effected by this First
Supplemental Indenture requiring such consent; and
WHEREAS, this First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of the Company.
NOW, THEREFORE, the Company and the Trustee agree as follows for the
equal and ratable benefit of Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used in this First
Supplemental Indenture without definition shall have the meanings
assigned to them in the Indenture.
Page 2
--------------------------------------------------------------------------------
2. AMENDMENT TO THE DEFINITION OF SHAREHOLDER-ELECTED BOARD - The
definition of Shareholder-Elected Board contained in Section 1.01
is hereby deleted in its entirety and the following substituted
therefor:
"'Shareholder-Elected Board' means such advisory board, management
board, supervisory board or similar board of the Company of which
some or all the members are directly elected, selected or
otherwise determined by the shareholders of the Company. On each
date of determination, if (i) such board has an equal number of
shareholder-elected members and members elected by employees of
the Company's subsidiaries and (ii) the chairman of such board,
who was elected by the shareholders, has a second vote in the
event of a tie, then in determining whether a Change of Control
under clause (3) of the definition of `Change of Control' in
Section 1.01 has occurred, the chairman shall be deemed to be two
individuals."
3. AMENDMENT TO CLAUSE (B)(2) OF SECTION 4.03 - Clause (b)(2) of
Section 4.03 is hereby deleted in its entirety and the following
substituted therefor:
"Indebtedness Incurred pursuant to any Term Loan Facility;
provided, however, that, after giving effect to any such
Incurrence, the aggregate principal amount of all Indebtedness
Incurred under this paragraph (2) and then outstanding does not
exceed (euro)550 million less the aggregate sum of all principal
payments actually made from time to time after the effective date
of the First Supplement Indenture with respect to such
Indebtedness (other than principal payments made from any
permitted Refinancings thereof);"
4. AMENDMENT TO CLAUSE (C) OF SECTION 4.03 - Clause (c) of Section
4.03 is hereby deleted in its entirety and the following
substituted therefor:
"(c) Notwithstanding the foregoing, the Company and the Restricted
Entities will not Incur any Indebtedness pursuant to Section
4.03(a) and (b) if the proceeds thereof are used, directly or
indirectly, to Refinance any Subordinated Obligations unless such
Indebtedness shall be subordinated to the Notes to at least the
same extent as such Subordinated Obligations, including, in the
case of any Subordinated Obligations that do not require the
payment of cash interest, that any Indebtedness that Refinances
such Subordinated Obligations does not require the payment of cash
interest."
5. AMENDMENT TO SECTION 4.14 - Section 4.14 is hereby deleted in its
entirety and the following substituted therefor:
"The Company will not, and will not permit any Restricted Entity,
Grohe Consult or any other general or limited partner of Grohe
Beteiligungs to, (1) amend, modify, supplement, or waive any
rights under the Intercompany
Page 3
--------------------------------------------------------------------------------
Loan or the Subordination Agreement in a manner that would
adversely affect the rights of the Company or its creditors with
respect to the Intercompany Loan or the Subordination Agreement,
(2) sell, otherwise dispose of or encumber the Intercompany Loan
or (3) with respect to clauses (1) and (2) enter into any
agreement that would have the same effect. Notwithstanding the
foregoing, the Company may, and may permit any Restricted Entity,
Grohe Consult or any other general or limited partner of Grohe
Beteiligungs to, amend, modify, supplement or waive rights under
the Intercompany Loan or the Subordination Agreement or enter into
an agreement with respect to the Intercompany Loan or the
Subordination Agreement so long as the terms of such amendment,
modification, supplement, waiver or agreement, in the
determination of the parties thereto, are substantially similar to
those contained in the Intercompany Loan or the Subordination
Agreement and, for the avoidance of doubt, any increase in the
amount of debt to which the Intercompany Loan is subordinate
pursuant to any such amendment, modification, supplement, waiver
or agreement will not be deemed to adversely affect the rights of
the Company or its creditors.
The Company will not, and will not permit any Restricted Entity,
Grohe Consult or any Person that is an obligor with respect to the
Intercompany Loan to prepay, repay, repurchase, redeem or
otherwise acquire or retire the Intercompany Loan except (A) in
accordance with its terms or (B) if the proceeds thereof are to be
used by the Company to redeem all of the Securities in a manner
permitted under this Indenture."
6. GOVERNING LAW: This First Supplemental Indenture shall be governed
by, and construed in accordance with English law. However, to the
extent this First Supplemental Indenture or the Notes include or
are deemed to include provisions of the U.S. Trust Indenture Act,
those provisions shall be performed and interpreted in accordance
with that act.
7. COUNTERPARTS. The parties may sign any number of copies of this
First Supplemental Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
Delivery of an executed counterpart by telecopies shall be as
effective as delivery of a manually executed counterpart to this
First Supplemental Indenture.
8. EFFECT OF HEADINGS. The Section headings in this First
Supplemental Indenture are for convenience only and shall not
affect the construction of this First Supplemental Indenture.
Page 4
--------------------------------------------------------------------------------
9. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity, enforceability,
legality or sufficiency of this First Supplemental Indenture or
for or in respect of the recitals contained in this Statement, all
of which recitals are made solely by the Company.
Page 5
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
GROHE HOLDING GMBH
-----------------------------
Title:
Name:
-----------------------------
Title:
Name:
THE BANK OF NEW YORK, LONDON BRANCH, as trustee, on behalf of the Holders
-----------------------------
Title:
Name:
