EXHIBIT 99.2
EXECUTION COPY
================================================================================
PHIBRO ANIMAL HEALTH CORPORATION
AND
PHILIPP BROTHERS NETHERLANDS III B.V.
AS ISSUERS
AND
THE GUARANTORS NAMED HEREIN
AND
HSBC BANK USA
AS TRUSTEE AND AS COLLATERAL AGENT
INDENTURE
DATED AS OF OCTOBER 21, 2003
105,000 UNITS
EACH UNIT CONSISTING OF
$809.5238095 PRINCIPAL AMOUNT OF 13% SENIOR SECURED NOTES DUE 2007
OF PHIBRO ANIMAL HEALTH CORPORATION
AND
$190.4761905 PRINCIPAL AMOUNT OF 13% SENIOR SECURED NOTES
OF PHILIPP BROTHERS NETHERLANDS III B.V.
================================================================================
TABLE OF CONTENTS
PAGE
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions...................................................... 1
SECTION 1.02. Other Definitions................................................ 17
SECTION 1.03. TIA.............................................................. 18
SECTION 1.04. Rules of Construction............................................ 19
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.................................................. 19
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount......... 20
SECTION 2.03. Registrar and Paying Agent....................................... 21
SECTION 2.04. Paying Agent to Hold Assets in Trust............................. 22
SECTION 2.05. Holder Lists..................................................... 22
SECTION 2.06. Transfer and Exchange............................................ 22
SECTION 2.07. Replacement Units and Notes...................................... 23
SECTION 2.08. Outstanding Units and Notes...................................... 23
SECTION 2.09. Treasury Notes................................................... 23
SECTION 2.10. Temporary Units and Notes........................................ 23
SECTION 2.11. Cancellation..................................................... 24
SECTION 2.12. Defaulted Interest............................................... 24
SECTION 2.13. CUSIP Number..................................................... 24
SECTION 2.14. Deposit of Monies................................................ 25
SECTION 2.15. Restrictive Legends.............................................. 25
SECTION 2.16. Book-Entry Provisions for Global Units and Global Notes.......... 25
SECTION 2.17. Registration of Transfers and Exchanges.......................... 26
SECTION 2.18. Additional Interest Under Registration Rights Agreement.......... 30
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee............................................... 31
SECTION 3.02. Selection of Notes To Be Redeemed................................ 31
SECTION 3.03. Optional Redemption.............................................. 31
SECTION 3.04. Notice of Redemption............................................. 33
SECTION 3.05. Effect of Notice of Redemption................................... 34
SECTION 3.06. Deposit of Redemption Price...................................... 34
SECTION 3.07. Notes Redeemed in Part........................................... 34
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes................................................. 35
SECTION 4.02. Maintenance of Office or Agency.................................. 35
SECTION 4.03. Corporate Existence.............................................. 35
-i-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 4.04. Payment of Taxes and Other Claims................................ 35
SECTION 4.05. Maintenance of Properties and Insurance.......................... 36
SECTION 4.06. Compliance Certificate; Notice of Default........................ 36
SECTION 4.07. Compliance with Laws............................................. 36
SECTION 4.08. Provision of Financial Statements and Information................ 37
SECTION 4.09. Waiver of Stay, Extension or Usury Laws.......................... 37
SECTION 4.10. Limitation on Restricted Payments................................ 37
SECTION 4.11. Limitation on Transactions with Affiliates....................... 40
SECTION 4.12. Limitation on Incurrence of Indebtedness......................... 40
SECTION 4.13. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.......................................... 44
SECTION 4.14. Limitation on Designation of Unrestricted Subsidiaries........... 46
SECTION 4.15. Change of Control................................................ 47
SECTION 4.16. Limitation on Asset Sales........................................ 48
SECTION 4.17. Impairment of Security Interest.................................. 50
SECTION 4.18. Limitation on Liens.............................................. 50
SECTION 4.19. Business Activities.............................................. 50
SECTION 4.20. Landlord, Bailee and Consignee Waivers........................... 51
SECTION 4.21. Real Estate Mortgages and Recordings............................. 52
SECTION 4.22. Future Guarantors............................................... 52
SECTION 4.23. Payments for Consent............................................. 54
SECTION 4.24. Excess Cash Flow Offer........................................... 54
SECTION 4.25. Limitation on Issuances and Sales of Capital Stock of
Subsidiaries..................................................... 55
SECTION 4.26. Noteholder Representative........................................ 55
SECTION 4.27. Additional Amounts............................................... 56
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets......................... 57
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default................................................ 62
SECTION 6.02. Acceleration..................................................... 63
SECTION 6.03. Other Remedies................................................... 64
SECTION 6.04. Waiver of Past Defaults.......................................... 64
SECTION 6.05. Control by Majority.............................................. 64
SECTION 6.06. Limitation on Suits.............................................. 64
SECTION 6.07. Right of Holders to Receive Payment.............................. 65
SECTION 6.08. Collection Suit by Trustee....................................... 65
SECTION 6.09. Trustee May File Proofs of Claim................................. 65
SECTION 6.10. Priorities....................................................... 65
SECTION 6.11. Undertaking for Costs............................................ 66
-ii-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 6.12. Restoration of Rights and Remedies............................... 66
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee................................................ 66
SECTION 7.02. Rights of Trustee................................................ 67
SECTION 7.03. Individual Rights of Trustee..................................... 68
SECTION 7.04. Trustee's Disclaimer............................................. 68
SECTION 7.05. Notice of Default................................................ 68
SECTION 7.06. Reports by Trustee to Holders.................................... 69
SECTION 7.07. Compensation and Indemnity....................................... 69
SECTION 7.08. Replacement of Trustee........................................... 70
SECTION 7.09. Successor Trustee by Merger, Etc................................. 71
SECTION 7.10. Eligibility; Disqualification.................................... 71
SECTION 7.11. Preferential Collection of Claims Against the Issuers............ 71
SECTION 7.12. Trustee as Collateral Agent...................................... 71
SECTION 7.13. Co-Trustees, Co-Collateral Agents, Sub-Collateral Agent, Separate
Trustees and Separate Collateral Agents.......................... 71
ARTICLE EIGHT
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Satisfaction and Discharge of Indenture.......................... 73
SECTION 8.02. Defeasance or Covenant Defeasance................................ 73
SECTION 8.03. Application of Trust Money....................................... 75
SECTION 8.04. Repayment to the Issuers......................................... 75
SECTION 8.05. Reinstatement.................................................... 75
SECTION 8.06. Acknowledgment of Discharge by Trustee........................... 75
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders....................................... 76
SECTION 9.02. With Consent of Holders.......................................... 76
SECTION 9.03. Compliance with TIA.............................................. 77
SECTION 9.04. Revocation and Effect of Consents................................ 77
SECTION 9.05. Notation on or Exchange of Notes................................. 78
SECTION 9.06. Trustee To Sign Amendments, Etc.................................. 78
ARTICLE TEN
SECURITY
SECTION 10.01. Grant of Security Interest....................................... 78
SECTION 10.02. Intercreditor Agreement.......................................... 79
SECTION 10.03. Recording and Opinions........................................... 79
SECTION 10.04. Release of Collateral............................................ 80
SECTION 10.05. Specified Releases of Collateral................................. 81
-iii-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 10.06. Form and Sufficiency of Release.................................. 82
SECTION 10.07. Purchaser Protected.............................................. 83
SECTION 10.08. Authorization of Actions To Be Taken by the Collateral Agent
Under the Collateral Agreements.................................. 83
SECTION 10.09. Authorization of Receipt of Funds by the Collateral Agent Under
the Collateral Agreements........................................ 83
SECTION 10.10. Limitation on Duty of Collateral Agent in Respect of Collateral;
Indemnification.................................................. 83
SECTION 10.11. Rights of the Issuers and the Guarantors......................... 84
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls..................................................... 84
SECTION 11.02. Notices.......................................................... 84
SECTION 11.03. Communications by Holders with Other Holders..................... 85
SECTION 11.04. Certificate and Opinion as to Conditions Precedent............... 85
SECTION 11.05. Statements Required in Certificate or Opinion.................... 86
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar........................ 86
SECTION 11.07. Legal Holidays................................................... 86
SECTION 11.08. Governing Law.................................................... 86
SECTION 11.09. No Adverse Interpretation of Other Agreements.................... 86
SECTION 11.10. No Personal Liability............................................ 86
SECTION 11.11. Successors....................................................... 87
SECTION 11.12. Duplicate Originals.............................................. 87
SECTION 11.13. Severability..................................................... 87
SECTION 11.14. Jurisdiction; Waiver of Jury Trial............................... 87
SECTION 11.15. English Language................................................. 87
SECTION 11.16. Service of Process............................................... 87
ARTICLE TWELVE
GUARANTEE OF NOTES
SECTION 12.01. Unconditional Guarantee.......................................... 88
SECTION 12.02. Limitations on Guarantees........................................ 89
SECTION 12.03. Execution and Delivery of Guarantee.............................. 89
SECTION 12.04. Release of a Guarantor........................................... 89
SECTION 12.05. Postponement of Subrogation...................................... 90
SECTION 12.06. No Set-Off....................................................... 90
SECTION 12.07. Obligations Absolute............................................. 90
SECTION 12.08. Obligations Continuing........................................... 90
SECTION 12.09. Obligations Not Reduced.......................................... 91
SECTION 12.10. Obligations Reinstated........................................... 91
SECTION 12.11. Obligations Not Affected......................................... 91
SECTION 12.12. Waiver........................................................... 92
-iv-
TABLE OF CONTENTS
(continued)
PAGE
SECTION 12.13. No Obligation to Take Action Against the Issuers................. 92
SECTION 12.14. Dealing with the Issuers and Others.............................. 92
SECTION 12.15. Default and Enforcement.......................................... 93
SECTION 12.16. Amendment, Etc................................................... 93
SECTION 12.17. Acknowledgment................................................... 93
SECTION 12.18. Costs and Expenses............................................... 93
SECTION 12.19. No Merger or Waiver; Cumulative Remedies......................... 93
SECTION 12.20. Survival of Obligations.......................................... 94
SECTION 12.21. Guarantee in Addition to Other Obligations....................... 94
SECTION 12.22. Severability..................................................... 94
SECTION 12.23. Successors and Assigns........................................... 94
Exhibits
--------
Exhibit A - Form of Unit
Exhibit B - Form of Exchange Unit
Exhibit C - Form of Certificate To Be Delivered in Connection with Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with Transfers Pursuant to Regulation S
Exhibit E - Form of Domestic Guarantee
Exhibit F - Form of Dutch Guarantee
Exhibit G - Form of Company Guarantee
Exhibit H - Form of Supplemental Indenture
Exhibit I - Form of Incumbency Certificate
Exhibit J - Form of Certificate to be Delivered upon Exchange or Registration of Transfer of Securities
Exhibit K - Form of Landlord Waiver
Exhibit L - Form of Bailee Waiver
Exhibit M - Form of Consignee Waiver
-v-
CROSS-REFERENCE TABLE
TIA Section Indenture Section
----------- -----------------
310 (a) (1)................................................... 7.10
(a) (2)................................................... 7.10
(a) (3)................................................... N.A.
(a) (4)................................................... N.A.
(a) (5)................................................... 7.10; 7.11
(b)....................................................... 7.08; 7.10; 11.02
(c)....................................................... N.A.
311 (a)....................................................... 7.11
(b)....................................................... 7.11
(c)....................................................... N.A.
312 (a)....................................................... 2.05
(b)....................................................... 11.03
(c)....................................................... 11.03
313 (a)....................................................... 7.06
(b) (1)................................................... 7.06
(b) (2)................................................... 7.06
(c)....................................................... 7.06; 11.02
(d)....................................................... 7.06
314 (a)....................................................... 4.06; 4.08; 11.02
(b)....................................................... N.A.
(c) (1)................................................... 7.02; 11.04
(c) (2)................................................... 7.02; 11.04
(c) (3)................................................... N.A.
(d)....................................................... N.A.
(e)....................................................... 11.05
(f)....................................................... N.A.
315 (a)....................................................... 7.01(b)
(b)....................................................... 7.05; 11.02
(c)....................................................... 7.01(a)
(d)....................................................... 6.05; 7.01(c)
(e)....................................................... 6.11
316 (a) (last sentence)....................................... 2.09
(a) (1) (A)............................................... 6.05
(a) (1) (B)............................................... 6.04
(a) (2)................................................... N.A.
(b)....................................................... 6.07
(c)....................................................... 9.04
317 (a) (1)................................................... 6.08
(a) (2)................................................... 6.09
(b)....................................................... 2.04
318 (a)....................................................... 11.01
(c)....................................................... 11.01
------------------
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
-i-
INDENTURE, dated as of October 21, 2003, among Phibro Animal Health
Corporation, a New York corporation (the "Company" or "U.S. Issuer"), as an
issuer, and its indirect wholly owned subsidiary, Philipp Brothers Netherlands
III B.V., a Dutch private company with limited liability (the "Dutch Issuer"
and, together with the U.S. Issuer, the "Issuers"), each of the Guarantors named
herein, as guarantors, and HSBC Bank USA, as Trustee (in such capacity as the
"Trustee") and collateral agent (in such capacity, the "Collateral Agent").
WHEREAS, the Issuers, and the Guarantors with respect to the
Guarantees, have duly authorized the creation of Units due 2007 (each an
"Initial Unit" and, collectively, the "Initial Units"), the underlying 13%
Senior Secured Notes due 2007 issued by the U.S. Issuer (the "Initial U.S.
Notes") and the underlying 13% Senior Secured Notes due 2007 issued by Philipp
Brothers Netherlands III B.V. (the "Initial Dutch Notes", together with the
Initial U.S. Notes, the "Initial Notes"), the Exchange Units due 2007 (each an
"Exchange Unit" and, collectively, the "Exchange Units", the Exchange Units and
the Initial Units, together with any Additional Units, as herein defined, the
"Units"), and the underlying 13% Senior Secured Exchange Notes due 2007 issued
by the Company (the "Exchange U.S. Notes") and 13% Senior Secured Notes due 2007
issued by the Dutch Issuer (the "Exchange Dutch Notes" and, together with the
Exchange U.S. Notes, the "Exchange Notes"). The Exchange Notes, the Initial
Notes and any Additional Notes shall collectively be referred to herein as the
"Notes";
Each party hereto agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person,
Indebtedness of any other Person (the "Acquired Person") existing at the time
the Acquired Person merges with or into, or becomes a Restricted Subsidiary of,
such specified Person, including Indebtedness incurred in connection with, or in
contemplation of, the Acquired Person merging with or into, or becoming a
Restricted Subsidiary of, such specified Person; provided, however, that
Indebtedness of such Acquired Person which is redeemed, defeased, retired or
otherwise repaid at the time of or immediately upon consummation of the
transactions by which such Acquired Person merges with or into or becomes a
Restricted Subsidiary of such specified Person shall not be Acquired Debt.
"Additional Interest" has the meaning set forth in the Registration
Rights Agreement.
"Administrative Agent" is defined in the definition of "Credit
Agreement."
"Affiliate" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with") of any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means (i) any sale, lease, conveyance or other disposition
by the Company or any Restricted Subsidiary of any assets (including by way of a
sale-and-leaseback) other than in the ordinary course of business or (ii) the
issuance or sale of Capital Stock of any Restricted Subsidiary, in the case of
each of (i) and (ii), whether in a single transaction or a series of related
transactions, to any Person (other than (A) (1) in the case of the Company or
any Domestic Restricted Subsidiary to the Company or any Guarantor and (2) in
the case of any Foreign Restricted Subsidiary to the Company or any Wholly Owned
Restricted Subsidiary, (B) directors' qualifying shares and (C) sales or grants
of licenses to use the patents, trade secrets, know-how and other intellectual
property of the Company or any of its Restricted Subsidiaries to the extent that
such license does not prohibit the Company and its Restricted Subsidiaries from
using the intellectual property so licensed or require the Company or any of its
Restricted Subsidiaries to pay any fees for such use) for Net Proceeds in excess
of $250,000.
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"Board of Directors" means, as to any Person, the board of directors of
such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in the city of New York are required or
authorized by law or other governmental action to be closed.
"Capital Lease Obligation" of any Person means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease for property leased by such Person that would at such time be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"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) corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person, including any Preferred Stock.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency or instrumentality thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof; (ii) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either Standard & Poor's Rating Services or
Xxxxx'x Investors Service, Inc.; (iii) commercial paper maturing no more than
one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from Standard & Poor's Rating Services or at
least P-1 from Xxxxx'x Investors Service, Inc.; (iv) certificates of deposit,
time deposits or bankers' acceptances (or, with respect to foreign banks,
similar instruments) maturing within one year from the date of acquisition
thereof issued by any bank organized under the laws of the United States of
America or any state thereof or the District of Columbia or any member of the
European Union or any U.S. branch of a foreign bank or (with respect to any
Restricted Subsidiary) any foreign country in which such Restricted
2
Subsidiary is located, having at the date of acquisition thereof combined
capital and surplus of not less than $250.0 million and a Xxxxxxxx or Xxxxx Bank
Watch Rating of "B" or better (including bank accounts in such banks); (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (iv) above; (vi) in the case of
any Foreign Restricted Subsidiary, Investments: (a) in direct obligations of the
sovereign nation (or any agency or instrumentality thereof) in which such
Foreign Restricted Subsidiary is organized or is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation (or
any agency or instrumentality thereof), (b) of the type and maturity described
in clauses (i) through (v) above of foreign obligors, which Investments or
obligors (or the parents of such obligors) have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies or (c) of
the type and maturity described in clauses (i) through (v) above of foreign
obligors (or the parents of such obligors), which Investments or obligors (or
the parents of such obligors), are not rated as provided in such clauses or in
clause (vi)(b) but which are, in the reasonable judgment of the Company,
comparable in investment quality to such Investments and obligors (or the
parents of such obligors); and (vii) investments in money market funds,
including money market funds administered by the Trustee, which invest
substantially all their assets in securities of the types described in clauses
(i) through (vi) above.
"Cash Flow" means, with respect to any period, Consolidated Net Income
for such period, plus, to the extent deducted in computing such Consolidated Net
Income: (i) extraordinary net losses, plus (ii) provision for taxes based on
income or profits and any provision for taxes utilized in computing the
extraordinary net losses under clause (i) hereof, plus (iii) Consolidated
Interest Expense, plus (iv) depreciation, amortization and all other non-cash
charges (including amortization of goodwill and other intangibles but excluding
any items that will require cash payments in the future for which an accrual or
reserve is made), plus (v) any non-recurring fees, charges or other expenses
made or incurred by the Company in connection with the Transactions.
"Change of Control" means:
(1) with respect to the Company, the occurrence of any of the
following events after the Issue Date:
(a) any "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act) (other than
one or more Permitted Holders) is or becomes (including by
merger, consolidation or otherwise) the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have beneficial
ownership of all shares that such Person has the right to
acquire, whether such right is exercisable immediately or only
after the passage of time), directly or indirectly, of 50% or
more of the voting power of the total outstanding Voting Stock
of the Company;
(b) during any period of two consecutive years,
individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new
directors whose election to such Board of Directors, or whose
nomination for election by the stockholders of the Company,
was approved by a vote of 66-2/3% of the directors then still
in office who were either directors at the beginning of such
period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of such Board of Directors of the Company then in
office;
(c) the approval by the holders of Capital Stock of
the Company of any plan or proposal for the liquidation or
dissolution of the Company as a whole and not any
3
Restricted Subsidiary or Guarantor (whether or not otherwise
in compliance with the terms of this Indenture); or
(d) the sale or other disposition (other than by way
of merger or consolidation) of all or substantially all of the
Capital Stock or assets of the Company and its Restricted
Subsidiaries taken as a whole to any Person or group (as
defined in Rule 13d-5 of the Exchange Act) (other than to one
or more of the Permitted Holders) as an entirety or
substantially as an entirety in one transaction or a series of
related transactions, unless the "beneficial owners" of the
Voting Stock of such Person immediately prior to such
transaction own, directly or indirectly, more than 50% of the
total voting power of such Person immediately after such
transaction; and
(2) with respect to the Dutch Issuer, the failure of the
Company to own, directly or indirectly, 100% of the issued and
outstanding Capital Stock of the Dutch Issuer (other than directors'
qualifying shares).
"Collateral" means, collectively, the Domestic Collateral and the
Foreign Collateral.
"Collateral Agent" means HSBC Bank USA, as collateral agent, and any
successor thereto in accordance with the terms of this Indenture.
"Collateral Agreements" means, collectively, the Domestic Collateral
Agreements and the Foreign Collateral Agreements.
"Commission" means the Securities and Exchange Commission.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company Guarantee" means the obligations of the U.S. Issuer under
Article XII of this Indenture in respect of the Dutch Notes and all other
Obligations of the Dutch Issuer.
"Consolidated Cash Flow Coverage Ratio" means, for any period, the
ratio of (i) the aggregate amount of Cash Flow for such period, to (ii)
Consolidated Interest Expense for such period, determined on a pro forma basis
after giving pro forma effect to (a) the incurrence of the Indebtedness giving
rise to the calculation of the Consolidated Cash Flow Coverage Ratio and (if
applicable) the application of the net proceeds therefrom, including to
refinance other Indebtedness, as if such Indebtedness was incurred, and the
application of such proceeds occurred, at the beginning of such period; (b) the
incurrence, repayment or retirement of any other Indebtedness by the Company and
its Restricted Subsidiaries since the first day of such period as if such
Indebtedness was incurred, repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average balance of
such Indebtedness at the end of each month during such period); (c) in the case
of Acquired Debt, the related acquisition as if such acquisition had occurred at
the beginning of such period; and (d) any acquisition or disposition by the
Company and its Restricted Subsidiaries of any company or any business or any
assets out of the ordinary course of business, or any related repayment of
Indebtedness, in each case since the first day of such period, assuming such
acquisition or disposition had been consummated on the first day of such period.
4
"Consolidated Interest Expense" means, with respect to any period, the
sum of (i) the interest expense of the Company and its Restricted Subsidiaries
for such period, including, without limitation, (a) amortization of debt
discount, (b) the net payments, if any, under interest rate contracts (including
amortization of discounts), (c) the interest portion of any deferred payment
obligation and (d) accrued interest, plus (ii) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued
by the Company and its Restricted Subsidiaries during such period, and all
capitalized interest of the Company and its Restricted Subsidiaries, plus (iii)
all dividends paid during such period by the Company and its Restricted
Subsidiaries with respect to any Disqualified Stock (other than by any
Restricted Subsidiary to the Company or any other Restricted Subsidiary and
other than any dividend paid in Capital Stock (other than Disqualified Stock)),
in each case, as determined on a consolidated basis in accordance with GAAP
consistently applied.
"Consolidated Net Income" means, with respect to any period, the net
income (or loss) of the Company and its Restricted Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP consistently applied,
adjusted to the extent included in calculating such net income (or loss), by
excluding, without duplication: (i) all extraordinary gains (less all fees and
expenses relating thereto); (ii) the portion of net income (or loss) of the
Company and its Restricted Subsidiaries allocable to interests in unconsolidated
Persons or Unrestricted Subsidiaries, except to the extent of the amount of
dividends or distributions actually paid to the Company or its Restricted
Subsidiaries by such other Person during such period; (iii) for purposes of the
covenant set forth in Section 4.10, net income (or loss) of any Person combined
with the Company or any of its Restricted Subsidiaries on a
"pooling-of-interests" basis attributable to any period prior to the date of
combination; (iv) net gains and losses (less all fees and expenses relating
thereto) in respect of disposition of assets (including, without limitation,
pursuant to sale and leaseback transactions) other than in the ordinary course
of business; (v) the net income of any Restricted Subsidiary to the extent that
the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income to the Company is not at the time permitted, directly
or indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders; (vi) the
cumulative non-cash effect of any change in accounting principles; provided that
any net gain referred to in clause (iv) above that relates to a Restricted
Investment and which is received in or converted into cash by the Company or a
Restricted Subsidiary during such period shall be included in the consolidated
net income of the Company; and (vii) the amount of accretions on preferred stock
not paid in cash and dividends paid in kind on preferred stock reducing
Consolidated Net Income in accordance with FASB 150.
"Consolidated Net Worth" means, with respect to any Person at any date,
the sum of (i) the consolidated stockholders' equity of such Person less the
amount of such stockholders' equity attributable to Disqualified Stock of such
Person and its Restricted Subsidiaries, as determined on a consolidated basis in
accordance with GAAP consistently applied and (ii) the amount of any Preferred
Stock of such Person not included in the stockholders' equity of such Person in
accordance with GAAP, which Preferred Stock does not constitute Disqualified
Stock.
"Copyright Security Agreement" means a Copyright Security Agreement
made by any of the Company or any Domestic Guarantor in favor of the Collateral
Agent, as amended or supplemented from time to time in accordance with its
terms.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
5
"Credit Agreement" means the Loan and Security Agreement dated as of
October 21, 2003, among the Company, each of its Subsidiaries parties thereto,
lenders parties thereto as such (together with their successors and assigns, the
"Lenders") and Xxxxx Fargo Foothill, Inc., as administrative agent (in such
capacity, together with its successors and assigns, the "Administrative Agent"),
or any other agreement providing for revolving credit loans, term loans,
receivables financing or letters of credit, as the same may be further amended,
modified, renewed, refunded, replaced or refinanced from time to time (including
extending the maturity of, increasing the amount of available borrowings under,
extending the purpose to include acquisition, working capital and other
facilities of, changing the conditions and basis of borrowing of, combining the
seniority of, changing the covenants and other provisions of, and adding
Subsidiaries of the Company as additional borrowers or guarantors, or otherwise
restructuring all or any portion of the Indebtedness under such agreement or any
successor or replacement and whether with the same or any other agent, lender or
group of lenders), including (i) any related notes, letters of credit,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time, and (ii) any notes, guarantees,
collateral documents, instruments and agreements executed in connection with any
such amendment, modification, renewal, refunding, replacement or refinancing.
"Currency Agreement Obligations" means the obligations of any person
under a foreign exchange contract, currency swap agreement or other similar
agreement or arrangement to protect such person against fluctuations in currency
values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after the giving of notice or
passage of time or both would be, an Event of Default.
"Depository" means The Depository Trust Company, its nominees and
successors.
"Disposition" means, with respect to any Person, any merger,
consolidation or other business combination involving such Person (whether or
not such Person is the Surviving Person) or the sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Stock" means (i) any Preferred Stock of any Restricted
Subsidiary (other than Preferred Stock owned by the Company or any Wholly Owned
Restricted Subsidiary) and (ii) that portion of any Capital Stock that, 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, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof (other than upon a Change of
Control of the Company in circumstances where the Holders would have similar
rights), in whole or in part on or prior to the stated maturity of the Notes.
"Domestic Collateral" shall mean Collateral as defined in the Domestic
Collateral Agreements.
"Domestic Collateral Agreements" means, collectively, the U.S. Security
Agreement, the U.S. Pledge Agreement, each Patent Security Agreement, each
Copyright Security Agreement and each Trademark Security Agreement, in each
case, as the same may be amended, supplemented or modified from time to time in
accordance with its terms.
"Domestic Guarantee" means the obligations of a Domestic Restricted
Subsidiary of the U.S. Issuer under Article XII of this Indenture in respect of
the U.S. Notes and all other Obligations of the U.S.
6
Issuer under this Indenture and the Dutch Notes and all other Obligations of the
Dutch Issuer under this Indenture.
"Domestic Guarantor" means each Domestic Restricted Subsidiary of the
U.S. Issuer that is designated as such on the signature pages hereto and each
other Domestic Restricted Subsidiary of the U.S. Issuer that has issued a
Domestic Guarantee.
"Domestic Restricted Subsidiary" means any Restricted Subsidiary of the
Company that is not a Foreign Restricted Subsidiary.
"Domestic Subsidiary" means any Subsidiary of the Company that is not a
Foreign Subsidiary.
"Excess Cash Flow" means, for any period, Cash Flow for such period
minus the sum of (i) the lesser of (x) all Capital Expenditures made during such
period by the Company and its Restricted Subsidiaries and (y) $8.5 million; (ii)
the sum of (x) the cash portion of the Consolidated Interest Expense (net of
interest income) for such period and (y) the cash portion of any related
financing fees for such period; (iii) the aggregate amount (without duplication)
of all federal, state and foreign income taxes and franchise taxes actually paid
in cash by the Company and its Restricted Subsidiaries during such period.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" has the meaning provided in the Registration Rights
Agreement.
"Existing Notes" shall mean the Company's outstanding 9.875% senior
subordinated notes due 2008 as the same may be amended, modified, renewed,
refunded or refinanced from time to time.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Foreign Collateral" shall mean the assets or property subject to any
Lien under a Foreign Collateral Agreement.
"Foreign Collateral Agreements" means, collectively, any and all
agreements purporting to xxxxx x Xxxx on assets and properties of the Dutch
Issuers and the Foreign Guarantors to secure their respective Obligations under
the Dutch Notes, this Indenture and the Foreign Guarantees, which agreements
shall be in form and substance reasonably satisfactory to the Collateral Agent,
in each case as amended or supplemented from time to time in accordance with its
terms.
"Foreign Guarantee" means the obligations of a Restricted Subsidiary of
the Dutch Issuer under Article XII of the Indenture in respect of the Dutch
Notes and all other Obligations of the Dutch Issuer under this Indenture.
"Foreign Guarantor" means each Restricted Subsidiary of the Dutch
Issuer that is designated as such on the signature pages hereto and each other
Restricted Subsidiary of the Dutch Issuer that has issued a Foreign Guarantee.
"Foreign Restricted Subsidiary" means a Restricted Subsidiary of the
Company that is a Foreign Subsidiary.
7
"Foreign Subsidiary" means a Subsidiary of the Company (1) which is
organized under the laws of any jurisdiction outside of the United States of
America, (2) which conducts the major portion of its business outside of the
United States of America and (3) all or substantially all of the property and
assets of which are located outside of the United States of America.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States of America, which are applicable
as of the Issue Date and consistently applied.
"Guarantees" means, collectively, the Domestic Guarantees and the
Foreign Guarantees.
"Guarantors" means, collectively, the Domestic Guarantors and the
Foreign Guarantors; provided that any Person constituting a Guarantor as
described above shall cease to constitute a Guarantor when its respective
Guarantee is released in accordance with the terms of this Indenture.
"guaranty" means a guarantee (other than by endorsement of negotiable
instruments for collection or deposit in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Holder" means the Person in whose name a Unit or, if a Separation
Event has occurred, a Note, is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, without duplication,
and whether or not contingent: (i) all indebtedness of such Person for borrowed
money or which is evidenced by a note, bond, debenture or similar instrument;
(ii) all obligations of such Person to pay the deferred or unpaid purchase price
of property, which purchase price is due more than six months after the date of
placing such property in service or taking delivery and title thereto; (iii) all
Capital Lease Obligations of such Person; (iv) all obligations of such Person in
respect of letters of credit or bankers' acceptances issued or created for the
account of such Person; (v) to the extent not otherwise included in this
definition, all net obligations of such Person under Interest Rate Agreement
Obligations or Currency Agreement Obligations of such Person; (vi) all
liabilities of others of the kind described in the preceding clause (i), (ii) or
(iii) secured by any Lien on any property owned by such Person; provided,
however, if the obligations secured by a Lien (other than a Permitted Lien not
securing any liability that would itself constitute Indebtedness) on any assets
or property have not been assumed by such Person in full or are not such
Person's legal liability in full, the amount of such Indebtedness for purposes
of this definition shall be limited to the lesser of the amount of Indebtedness
secured by such Lien and the Fair Market Value of the property subject to such
Lien; (vii) all Disqualified Stock issued by such Person and all Preferred Stock
issued by a Subsidiary of such Person (other than Preferred Stock of a
Restricted Subsidiary owned by the Company or a Wholly Owned Restricted
Subsidiary); and (viii) to the extent not otherwise included, any guaranty by
such Person of any other Person's indebtedness or other obligations described in
clauses (i) through (vii) above. "Indebtedness" of the Company and the
Restricted Subsidiaries shall not include current trade payables incurred in the
ordinary course of business, and non-interest bearing installment obligations
and accrued liabilities incurred in the ordinary course of business. The
principal amount outstanding of any Indebtedness issued with original issue
discount is the accreted value of such Indebtedness. Notwithstanding the
foregoing, "Indebtedness" shall not include Indebtedness arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds in the ordinary course
of business; provided that such Indebtedness is
8
extinguished within 3 Business Days of the incurrence thereof. In addition,
"Indebtedness" shall not include a government grant and any guaranty of the
Company or a Restricted Subsidiary required by such grant which obligates the
Company or a Restricted Subsidiary to repay such grant at the discretion of such
government or upon the failure of the conditions of such grant specified therein
to be fulfilled, but which is forgiven solely by reason of the passage of time
or the fulfillment of such grant conditions (other than repayment); provided
that if the conditions for forgiveness of such government grant lapse for
whatever reason and the Company or a Restricted Subsidiary becomes obligated to
repay such grant, the grant shall be deemed Indebtedness which is incurred at
the time such obligation to repay is triggered.
"Indenture Documents" means, collectively, the Indenture, the Notes,
the Guarantees, the Company Guarantee and the Collateral Agreements.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as
of the Issue Date, among the Administrative Agent, the Collateral Agent, the
Company and the Domestic Guarantors, as the same may be amended, supplemented or
modified from time to time.
"Initial Purchaser" means Xxxxxxxxx & Company, Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, when used with respect to any Note, the amount of all
interest accruing on such Note, including any applicable defaulted interest
pursuant to Section 2.12 and any Additional Interest pursuant to the
Registration Rights Agreement.
"Interest Payment Date" means the stated maturity of an installment of
interest on the Notes.
"Interest Rate Agreement Obligations" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, any guaranty)
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 by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any other Person. "Investment" shall exclude (x) extensions of trade credit
by the Company and its Restricted Subsidiaries on commercially reasonable terms
in accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be, and (y) payments made by the Company and its
Restricted Subsidiaries in respect of liabilities of the type described in
clauses (ii)(b) and (e) of the definition of the term "Net Proceeds" in
connection with (1) any Asset Sales by the Company or any of its Restricted
Subsidiaries (provided, however, that the aggregate amount of such payments
relating to any such Asset Sale shall at no time exceed the gross proceeds
actually received by the Company or such Restricted Subsidiary in connection
with such Asset Sale) and (2) the disposition of all or substantially all of the
Capital Stock or assets of MRT and PMC. For the purposes of the "Limitation on
Restricted Payments" covenant, (i) "Investment" shall include and be valued at
the Fair Market Value of the net assets of any Restricted Subsidiary (to the
extent of the Company's equity interest in such Restricted Subsidiary) at the
time that such Restricted Subsidiary is designated an Unrestricted Subsidiary
and shall exclude the Fair Market Value of the net assets of any Unrestricted
Subsidiary at the time that such Unrestricted Subsidiary is designated a
Restricted Subsidiary and (ii) the amount of any Investment shall be the
original cost of such Investment
9
plus the cost of all additional Investments by the Company or any of its
Restricted Subsidiaries, without any adjustments for increases or decreases in
value, or write-ups, write-downs or write-offs with respect to such Investment,
reduced by the payment of dividends or distributions in connection with such
Investment or any other amounts received in respect of such Investment;
provided, however, that no such payment of dividends or distributions or receipt
of any such other amounts shall reduce the amount of any Investment if such
payment of dividends or distributions or receipt of any such amounts would be
included in Consolidated Net Income. If the Company or any Restricted Subsidiary
of the Company sells or otherwise disposes of any Common Stock of any direct or
indirect Restricted Subsidiary of the Company such that, after giving effect to
any such sale or disposition, the Company no longer owns, directly or
indirectly, greater than 50% of the outstanding Common Stock of such Restricted
Subsidiary, the Company and/or such Restricted Subsidiary 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 Common Stock of such Restricted Subsidiary not sold or
disposed of.
"Issue Date" means October 21, 2003, the date of the original issuance
of the Units and the underlying Notes.
"Lenders" is defined in the definition of "Credit Agreement."
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or similar encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to give a security
interest in any asset).
"Maturity Date" means December 1, 2007.
"MRT" means Mineral Resource Technologies, Inc., a Delaware
corporation.
"Net Proceeds" means, with respect to any Asset Sale by any Person, the
aggregate cash or Cash Equivalent proceeds received by such Person and/or its
Affiliates in respect of such Asset Sale, which amount is equal to the excess,
if any, of (i) the cash or Cash Equivalents received by such Person and/or its
Affiliates (including any cash payments received by way of deferred payment
pursuant to, or monetization of, a note or installment receivable or otherwise,
but only as and when received) in connection with such Asset Sale, over (ii) the
sum of (a) the amount of any Indebtedness that is secured by such asset and
which is required to be (and is in fact) repaid by such Person in connection
with such Asset Sale, plus (b) all fees, commissions and other expenses incurred
by such Person in connection with such Asset Sale, plus (c) provision for taxes,
including income taxes, directly attributable to the Asset Sale or to
prepayments or repayments of Indebtedness with the proceeds of such Asset Sale,
plus (d) if such Person is a Restricted Subsidiary, any dividends or
distributions payable to holders of minority interests in such Restricted
Subsidiary from the proceeds of such Asset Sale, plus (e) appropriate amounts to
be provided or established by the Company or any Restricted Subsidiary as a
reserve against any liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale; provided that upon
the release of any such reserves, such amounts shall constitute "Net Proceeds"
hereunder.
"Obligations" means any principal, premium, interest, Additional
Amounts, penalties, fees, indemnifications, reimbursement obligations, damages
and other liabilities and obligations payable under this Indenture, any Note or
any other Indenture Document.
10
"Offering Circular" means the Final Offering Circular dated October 10,
2003 relating to the issuance of the Units and the Notes.
"Officer" means, with respect to any Person, the Chairman of the Board
of Directors, the Chief Executive Officer, the President, any Vice President,
the Chief Financial Officer, the Treasurer, the Controller or the Secretary of
such Person, or any other officer designated by the Board of Directors serving
in a similar capacity and, with respect to the Trustee or any agent of the
Trustee, a Trust Officer.
"Officers' Certificate" means a certificate signed on behalf of a
Person by two Officers of such Person, one of whom must be the principal
executive officer, the principal financial officer or the principal accounting
officer of such Person, that meets the requirements set forth in Sections 11.04
and 11.05 of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee, or, where so specified, to the Issuers,
complying with the requirements of Sections 11.04 and 11.05, as they relate to
the giving of an Opinion of Counsel.
"Patent Security Agreement" means a Patent Security Agreement made by
any of the Company or any Domestic Guarantor in favor of the Collateral Agent,
as amended or supplemented from time to time in accordance with its terms.
"Permitted Holders" means (i) Xxxx Xxxxxxxx; (ii) each of his spouse,
siblings, ancestors, descendants (whether by blood, marriage or adoption, and
including stepchildren) and the spouses, siblings, ancestors and descendants
thereof (whether by blood, marriage or adoption, and including stepchildren) of
such natural persons, the beneficiaries, estates and legal representatives of
any of the foregoing, the trustee of any bona fide trust of which any of the
foregoing, individually or in the aggregate, are the majority in interest
beneficiaries or grantors, and any corporation, partnership, limited liability
company or other Person in which any of the foregoing, individually or in the
aggregate, own or control a majority in interest; and (iii) all Affiliates
controlled by the individual named in clause (i) above.
"Permitted Investments" means (i) Investments by the Company or any
Restricted Subsidiary of the Company (A) in any Person that is or will become
immediately after such Investment a Domestic Guarantor or that will merge or
consolidate into the Company or a Domestic Guarantor or (B) in either Issuer or
any Guarantor, to the extent 100% of the net proceeds thereof are used
substantially contemporaneously with the receipt of such proceeds to make any
redemption, repurchase or other retirement for value or payment on or in respect
of the Dutch Notes or its Guarantee or the Company Guarantee, as applicable, in
respect thereof, as applicable; (ii) any investment in cash or Cash Equivalents;
(iii) Investments in the Company by any Restricted Subsidiary of the Company;
provided that any Indebtedness evidencing such Investment held by a Restricted
Subsidiary shall satisfy the requirements of clause (vii) of the definition of
the term "Permitted Indebtedness"; (iv) Investments in accounts and notes
receivable acquired in the ordinary course of business; (v) any notes,
obligations or other securities received in connection with an Asset Sale that
complies with the covenant described under Section 4.16 or any other disposition
not constituting an Asset Sale; (vi) Interest Rate Agreement Obligations and
Currency Agreement Obligations permitted pursuant to the second paragraph of the
covenant described under Section 4.12; (vii) investments in or acquisitions of
Capital Stock or similar interests in Persons (other than Affiliates of the
Company) received in the bankruptcy or reorganization of or by such Person or
any exchange of such investment with the issuer thereof or taken in settlement
of or other resolution of claims or disputes; (viii) Investments by any Foreign
Subsidiary of the Company that (A) is not the Dutch Issuer or a Restricted
Subsidiary of the Dutch Issuer, in any other Foreign Subsidiary of the Company
and (B) is the Dutch Issuer or a Foreign Guarantor, in either Issuer or any
Guarantor; (ix) Investments in any Foreign Subsidiary of the Company by the
Company or any Restricted Subsidiary of
11
the Company to the extent the aggregate amount of such Investments at any one
time outstanding does not exceed $5.0 million; and (x) other Investments made
after the Issue Date in an aggregate amount at any one time outstanding not to
exceed $2.5 million.
"Permitted Liens" means (i) Liens securing Indebtedness under the
Credit Agreement to the extent such Indebtedness is permitted under clause (i),
(xiii), (xiv) or (xvii) of the definition of the term "Permitted Indebtedness";
(ii) Liens securing Acquired Debt incurred in accordance with the terms of this
Indenture; provided, however, that (A) such Liens secured such Acquired Debt at
the time of and prior to the incurrence of such Acquired Debt by the Company or
a Restricted Subsidiary of the Company and were not granted in connection with,
or in anticipation of, the incurrence of such Acquired Debt by the Company or a
Restricted Subsidiary of the Company and (B) such Liens do not extend to or
cover any property or assets of the Company or of any of its Restricted
Subsidiaries other than the property or assets that secured the Acquired Debt
prior to the time such Indebtedness became Acquired Debt of the Company or a
Restricted Subsidiary of the Company (and property or assets acquired in
replacement of any such property or assets after such time to the extent
acquired using the proceeds of any such replaced property or assets) and are not
materially more favorable to the lienholders than those securing the Acquired
Debt prior to the incurrence of such Acquired Debt by the Company or a
Restricted Subsidiary of the Company; (iii) Liens on property acquired by the
Company or a Restricted Subsidiary; provided, however, that such Liens were in
existence prior to the contemplation of such acquisition and do not extend to
any other property of the Company or such Restricted Subsidiary; (iv) Liens in
respect of Interest Rate Agreement Obligations and Currency Agreement
Obligations permitted under this Indenture; (v) Liens in favor of the Company or
any Restricted Subsidiary so long as such Liens are subordinated to the Liens
described in clause (vii) below; (vi) Liens existing or created on the Issue
Date; (vii) Liens securing the Notes, the Guarantees or the Company Guarantee;
(viii) Liens securing Capital Lease Obligations and Purchase Money Obligations
permitted pursuant to clause (xi) of the definition of "Permitted Indebtedness";
provided, however, that (A) in the case of any Capital Lease Obligations, such
Liens do not extend to any property or assets which is not leased property
subject to such Capitalized Lease Obligations (whether or not such property or
assets were the initial leased property thereunder) and (B) in the case of any
Purchase Money Obligations, (1) the Indebtedness shall not exceed the cost of
the real property acquired, together with the cost of the installation and
construction thereof and improvements thereto, and shall not be secured by any
property or assets of the Company or any Restricted Subsidiary of the Company
other than such property and improvements thereto so acquired, installed or
constructed (and property or assets acquired in replacement of any such property
or assets after such date of acquisition, installation or construction to the
extent acquired using the proceeds of any such replaced property or assets) and
(2) the Lien securing such Indebtedness shall be created within 30 days of such
acquisition, installation or construction or, in the case of a refinancing of
any such Purchase Money Obligations, within 30 days of such refinancing; (ix)
leases or subleases granted to others that do not materially interfere with the
ordinary course of business of the Company and its Restricted Subsidiaries; (x)
Liens arising from filing Uniform Commercial Code financing statements regarding
operating leases; (xi) Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods; (xii) Liens to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Company or any of its
Restricted Subsidiaries, including the performance of statutory obligations,
surety or appeal bonds or performance bonds, or landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's or other like Liens, in
any case incurred in the ordinary course of business and rights to offset and
set-off; (xiii) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded; provided
that any reserve or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (xiv) Liens securing
Indebtedness incurred to amend, modify, renew, refund, replace or refinance
Indebtedness that has been secured by a Lien permitted under this Indenture;
provided that (A) any such Lien not extend to or cover any assets or
12
property not securing the Indebtedness so refinanced; (B) any such Lien is no
less favorable to the Holders and are not more favorable to the lienholders with
respect to such Lien than the Lien in respect of the Indebtedness being amended,
modified, renewed refunded, replaced or refinanced and (C) the Refinancing
Indebtedness secured by such Lien shall have been permitted to be incurred under
this Indenture; (xv) Liens securing Indebtedness of Foreign Restricted
Subsidiaries to the extent such Indebtedness is permitted under clauses (x),
(xv) and (xvii) of the definition of the term "Permitted Indebtedness;"
provided, however, that no asset of the Company or any Domestic Restricted
Subsidiary shall be subject to any such Lien; (xvi) 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 shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired; (xvii)
easements, rights-of-way, zoning restrictions, title irregularities and other
similar charges or encumbrances in respect of real property not interfering in
any material respect with the ordinary conduct of the business of the Company or
any if its Restricted Subsidiaries; (xviii) Liens upon specific items of
inventory or other goods and proceeds of any Person securing such Person's
obligation in respect of bankers' acceptances issued or created for the account
of such Person (to the extent the Indebtedness evidenced thereby was permitted
to be incurred under the terms of this Indenture) to facilitate the purchase,
shipment or storage of such inventory or other goods; and (xix) Liens arising in
connection with the placement by either Issuer or any Restricted Subsidiary of
the Company, as the case may be, of a reasonable amount of cash (as determined
in good faith by such Person's board of director) in escrow against any
obligations permitted pursuant to clause (xviii) of Section 4.12.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Physical Note" means a Note issued in exchange for interests in a
Global Note in the form of a permanent certificated Note in registered form in
substantially the form set forth in Exhibit A.
"Physical Unit" means a Unit issued in exchange for interests in a
Global Unit in the form of a permanent certificated Unit in registered form in
substantially the form set forth in Exhibit A.
"PMC Sale Transactions" means the following transactions and payments,
including payments required pursuant to the documents evidencing such
transactions: (i) the transfer of ownership to the Palladium Investors of The
Prince Manufacturing Company ("PMC") which would be valued at approximately $21
million; (ii) the reduction of the preferred stock of the Palladium Investors to
$15.2 million (as of September 30, 2003); (iii) the termination of any
obligation of the Company or any Restricted Subsidiary of the Company in respect
of the $2.25 million annual management advisory fee (subject to reinstatement if
these transactions are not consummated on or before December 31, 2003); (iv) a
separate cash payment to the Palladium Investors of $10 million from the recent
sale of MRT; (v) payments by PMC to the Company for central support services for
the three years ending June 30, 2006 of $1 million, $0.5 million and $0.2
million, respectively; (vi) supply arrangements between the Company and PMC with
respect to manganous oxide and red iron oxide; (vii) customary representations,
warranties and indemnities by the Company, and provisions for closing working
capital balance adjustments, settlement of intercompany accounts owed to PMC, a
closing fee payable to Palladium and the agreement of the Company to pay or
reimburse the Palladium Investors for their reasonable out-of-pocket expenses;
and (viii) the establishment by the Company of a $1 million escrow or other
credit support for two years to secure its net working capital and foregoing
indemnification obligations, and indemnification of the Palladium Investors,
payable after the maturity of the Notes, for a portion, at the rate of $0.65 for
every dollar, of the amount they receive in respect of the disposition of PMC
less than $21 million, up to a maximum payment by the Company of $4 million.
13
"Preferred Stock" as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class of such Person.
"Private Placement Legend" means the legend initially set forth on the
Initial Notes in the form set forth in Exhibit A as the same may be revised from
time to time to comply with applicable laws and regulations.
"pro forma" means, with respect to any calculation made or required to
be made pursuant to the terms of this Indenture, a calculation in accordance
with Article 11 of Regulation S-X under the Securities Act.
"Purchase Money Obligation" means any Indebtedness (as amended,
modified, renewed, refunded, replaced or refinanced) secured by a Lien on assets
related to the business of the Company or the Restricted Subsidiaries, and any
additions and accessions thereto, which are purchased, constructed or improved
by the Company or any Restricted Subsidiary at any time after the Issue Date;
provided, however, that (i) any security agreement or conditional sales or other
title retention contract pursuant to which the Lien on such assets is created
(collectively, a "Security Agreement") shall be entered into within 90 days
after the purchase or substantial completion of the construction or improvement
of such assets and shall at all times be confined solely to the assets so
purchased, constructed or improved, any additions and accessions thereto and any
proceeds therefrom, (ii) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased, except in connection with
the purchase of additions and accessions thereto and except in respect of fees
and other obligations in respect of such Indebtedness and (iii) (A) the
aggregate outstanding principal amount of Indebtedness secured thereby
(determined on a per asset basis in the case of any additions and accessions)
shall not at the time such Security Agreement is entered into exceed 100% of the
purchase price or cost of construction or improvement to the Company or any
Restricted Subsidiary of the assets subject thereto or (B) the Indebtedness
secured thereby shall be with recourse solely to the assets so purchased,
constructed or improved, any additions and accessions thereto and any proceeds
therefrom.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A.
"Record Date" means the Record Dates specified in the Notes.
"Redemption Date" means, when used with respect to any Note to be
redeemed, the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price" means, when used with respect to any Note to be
redeemed, the price fixed for such redemption, including principal and premium,
if any, pursuant to this Indenture and the Notes.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of the Issue Date among the Issuers, the Guarantors and the Initial
Purchaser.
"Regulation S" means Regulation S under the Securities Act.
"Related Business" means any business that is reasonably related to or
complementary to the businesses conducted by the Company, or the Restricted
Subsidiaries, on the Issue Date.
"Restricted Investment" means an Investment other than a Permitted
Investment.
14
"Restricted Payment" means (i) any dividend or other distribution
declared or paid on any Capital Stock of the Company (other than (A) dividends
or distributions payable solely in Capital Stock (other than Disqualified Stock)
of the Company or (B) dividends or distributions payable to the Company or any
Restricted Subsidiary); (ii) any payment to purchase, redeem or otherwise
acquire or retire for value any Capital Stock of the Company; (iii) any payment
to purchase, redeem, defease or otherwise acquire or retire for value, prior to
any scheduled maturity, repayment or sinking fund payment, any Subordinated
Indebtedness other than a purchase, redemption, defeasance or other acquisition
or retirement for value that is paid for with the proceeds of Refinancing
Indebtedness that is permitted under the covenant described under Section 4.12;
or (iv) any Restricted Investment. A Permitted Investment is not a Restricted
Payment.
"Restricted Security" has the meaning assigned to such term in
Rule 144(a)(3) under the Securities Act; provided, however, that the Trustee
shall be entitled to request and conclusively rely on an Opinion of Counsel with
respect to whether any Note constitutes a Restricted Security.
"Restricted Subsidiary" means each direct or indirect Subsidiary of the
Company other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Secured Parties" means the Collateral Agent, the Trustee and the
Holders.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Security Interests" means the Liens on the Collateral created by this
Indenture and the Collateral Agreements in favor of the Collateral Agent for the
benefit of the Collateral Agent and the Holders.
"Separation Event" means the occurrence of (i) an Event of Default on
the Notes, (ii) a redemption of the Dutch Notes pursuant to Section 3.03(d) or
(iii) a Change of Control of the Dutch Issuer.
"Shareholders Agreements" means (i) the Shareholders Agreement dated
December 29, 1987 by and between Xxxxxx X. Xxxxxxx and the Company; (ii) the
Shareholders Agreement dated February 21, 1995 among Phibro-Tech, Inc., I. Xxxxx
Xxxxx, Xxxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxx; (iii) the Severance Agreement
between Phibro-Tech, Inc. and Xxxxx X. Xxxxxxxx, dated February 21, 1995 and
(iv) the Stockholders Agreement, dated as of November 30, 2000, among, inter
alia, the Company, Xxxx X. Xxxxxxxx and the Palladium Investors; each as amended
and in effect on the Issue Date, and as thereafter amended, except for any
amendment subsequent to the Issue Date which causes the terms of such agreement
to be less favorable to the Company or Phibro-Tech, as the case may be.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X
promulgated pursuant to the Securities Act, as such Regulation S-X is in effect
on the Issue Date.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor which (A) if incurred by the Company, is subordinated in right of
payment to the Notes, or (B) if incurred by a Guarantor, is subordinated in
right of payment to the Guarantee of such Guarantor.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding voting power of the Voting Stock of which is owned or controlled,
directly or indirectly, by such Person or by
15
one or more other Subsidiaries of such Person, or by such Person and one or more
other Subsidiaries thereof, or (ii) any limited partnership of which such Person
or any Subsidiary of such Person is a general partner, or (iii) any other Person
(other than a corporation or limited partnership) in which such Person or one or
more other Subsidiaries of such Person, or such Person and one or more other
Subsidiaries thereof, directly or indirectly, has more than 50% of the
outstanding partnership or similar interests or has the power, by contract or
otherwise, to direct or cause the direction of the policies, management and
affairs thereof.
"Surviving Person" means, with respect to any Person involved in or
that makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date of this Indenture, except as
otherwise provided in Section 9.03.
"Trademark Security Agreement" means a Trademark Security Agreement
made by any of the Company or any Domestic Guarantor in favor of the Collateral
Agent, as amended or supplemented from time to time in accordance with its
terms.
"Transactions" means, collectively, the Offering, the PMC Sale
Transactions and the solicitation of consents with respect to the Company's
Existing Notes to amendments to the indenture governing the Existing Notes.
"Trustee" means HSBC Bank USA, as trustee, and any successor thereto in
accordance with the terms of this Indenture.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer this Indenture, or in the case of a
successor trustee, an officer assigned to the department, division or group
performing the corporation trust work of such successor and assigned to
administer this Indenture.
"United States Dollars" and "dollar" and "$" means lawful money of the
United States of America.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to and in compliance with the covenant described
under Section 4.14 and not redesignated a Restricted Subsidiary in compliance
with such covenant.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
"U.S. Pledge Agreement" means the Pledge Agreement, dated as of the
Issue Date, made by the Company and the Domestic Guarantors parties thereto in
favor of the Collateral Agent, as amended or supplemented from time to time in
accordance with its terms.
"U.S. Security Agreement" means the Security Agreement, dated as of the
Issue Date, made by the Company and the Domestic Guarantors parties thereto in
favor of the Collateral Agent, as amended or supplemented from time to time in
accordance with its terms.
16
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (A) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled payment
of principal, including payment at final maturity, in respect thereof, with (B)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment, by (ii) the then outstanding
aggregate principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
with respect to which all of the outstanding voting securities (other than
directors' qualifying shares or nominee shares held by a third party to comply
with local law) of which are owned, directly or indirectly, by the Company or a
Surviving Person of any Disposition involving the Company, as the case may be.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Additional Amounts" 4.27
"Additional Notes" 2.02
"Additional Units" 2.02
"Agent Members" 2.16
"Asset Sale Offer" 4.16(c)
"Asset Sale Offer Purchase Date" 4.16(d)
"Asset Sale Offer Trigger Date" 4.16(c)
"Authenticating Agent" 2.02
"Change of Control Offer" 4.15(c)
"Change of Control Purchase Date" 4.15(c)
"Change of Control Redemption of Dutch Notes" 4.15(b)
"Change of Control Redemption of Dutch Notes Right" 4.15(b)
"Collateral Agent" Preamble
"Company" Preamble
"Comparable Treasury Issue" 3.03(a)
"Comparable Treasury Price" 3.03(a)
"covenant defeasance" 8.02(b)
"Default Interest Payment Date" 2.12
"defeasance" 8.02(a)
"Designation" 4.14(a)
"Designation Amount" 4.14(a)(iii)
"Dutch Issuer" Preamble
"Events of Default" 6.01
"Excess Cash Flow Offer" 4.24
"Excess Cash Flow Offer Amount" 4.24
"Excess Proceeds" 4.16(b)
"Exchange Dutch Notes" Preamble
"Exchange Notes" Preamble
"Exchange Unit" Preamble
"Exchange Units" Preamble
17
"Exchange U.S. Notes" Preamble
"Existing Indebtedness" 4.12(a)(iii)
"Global Dutch Note" 2.01
"Global Notes" 2.01
"Global Units" 2.01
"Global U.S. Note" 2.01
"IAI Global Notes" 2.01
"IAI Global Unit" 2.01
"incur" 4.12(a)
"independent" 10.04(c)
"Initial Dutch Notes" Preamble
"Initial Notes" Preamble
"Initial Unit" Preamble
"Initial Units" Preamble
"Initial U.S. Notes" Preamble
"Issuers" Preamble
"Legal Holiday" 11.07
"Notes" Preamble
"Paying Agent" 2.03
"Permitted Indebtedness" 4.12(a)
"Permitted Payments" 4.10(b)
"Premises" 4.21
"Private Placement Legend" 2.15
"Public Equity Offering" 3.03(c)
"QIB Global Notes" 2.01
"QIB Global Unit" 2.01
"Redesignation" 4.14(b)
"Reference Treasury Dealer" 3.03(a)
"Reference Treasury Dealer Quotation" 3.03(a)
"refinancing" 4.12(a)(x)
"Refinancing Indebtedness" 4.12(a)(x)
"Registrar" 2.03
"Regulation S Global Notes" 2.01
"Regulation S Global Unit" 2.01
"Released Interests" 10.05(a)
"Relevant Jurisdiction" 4.27
"Required Filing Dates" 4.08
"Taxes" 4.27
"Treasury Rate" 3.03(a)
"Trustee" Preamble
"Units" Preamble
"U.S. Issuer" Preamble
"Valuation Date" 10.05(b)
SECTION 1.03. TIA. Whenever this Indenture refers to a provision of the
TIA, such provision is incorporated by reference in, and made a part of, this
Indenture. The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Units and/or the Notes.
18
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, the
Dutch Issuer or any other obligor on the Units and/or 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 Commission rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP of any date of determination;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) "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;
(6) when the words "includes" or "including" are used herein, they
shall be deemed to be followed by the words "without limitation"; and
(7) any reference to a statute, law or regulation means that
statute, law or regulation as amended and in effect from time to time and
includes any successor statute, law or regulation; provided, however, that any
reference to the Bankruptcy Law shall mean the Bankruptcy Law as applicable to
the relevant case.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating. The Initial Units, the Notes forming the
Initial Units, the notation thereon relating to the Guarantees, if any, and the
Trustee's certificate of authentication relating thereto shall be substantially
in the form of Exhibit A hereto. The Exchange Units, the Exchange Notes forming
the Exchange Units, the notation thereon relating to the Guarantees, if any, and
the Trustee's certificate of authentication relating thereto shall be
substantially in the form of Exhibit B hereto. The Units and Notes may have
notations, legends or endorsements required by law, stock exchange rule or
depository rule or usage. The Issuers and the Trustee shall approve the form of
the Notes and any notation, legend or endorsement on them. Each Unit and Note
shall be dated the date of its issuance and shall show the date of its
authentication. Each U.S. Note shall have an executed Guarantee endorsed thereon
substantially in the form of Exhibit E hereto from each Domestic Guarantor. Each
Dutch Note shall have an executed Guarantee endorsed thereon substantially in
the form of Exhibit E hereto from
19
each Domestic Guarantor, Exhibit F hereto from each Foreign Guarantor, and
Exhibit G hereto from the Company.
The Notes of each Issuer will not trade separately unless a Separation
Event has occurred.
The terms and provisions contained in the Notes and the Guarantees, if
any, annexed hereto as Exhibits A, B, E, F and G, shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable,
the Issuers, the Guarantors, if any, and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and to
be bound thereby.
Units offered and sold (i) in reliance on Rule 144A, (ii) to
Institutional Accredited Investors or (iii) in reliance on Regulation S, shall
be issued initially in the form of one or more permanent global Units in
registered form, substantially in the form set forth in Exhibit A (the "Global
Units"), each Global Unit consisting of a global U.S. Note ("Global U.S. Note")
and global Dutch Note ("Global Dutch Note" and together with the Global U.S.
Notes, the "Global Notes"), deposited with the Trustee, as custodian for the
Depository, duly executed by the Issuers (and having an executed Guarantee
endorsed thereon) and authenticated by the Trustee as hereinafter provided, and
shall bear the legend set forth in Exhibit A. One or more separate Global Units
shall be issued to represent Units held by (i) Qualified Institutional Buyers (a
"QIB Global Unit"), consisting of the underlying U.S. Notes and Dutch Notes (the
"QIB Global Notes"), (ii) Institutional Accredited Investors (an "IAI Global
Unit"), consisting of the underlying U.S. Notes and Dutch Notes (the "IAI Global
Notes"), and (iii) Persons acquiring Units in reliance on Regulation S (a
"Regulation S Global Unit"), consisting of the underlying U.S. Notes and Dutch
Notes (the "Regulation S Global Notes"). The aggregate principal amount of any
Global Unit or Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository,
as hereinafter provided.
All Units and Notes offered and sold in reliance on Regulation S shall
remain in the form of Global Units and Global Notes until the consummation of
the Exchange Offer pursuant to the Registration Rights Agreement; provided,
however, that all of the time periods specified in the Registration Rights
Agreement to be complied with by the Issuers and the Guarantors have been so
complied with.
SECTION 2.02. Execution and Authentication; Aggregate Principal Amount.
Two Officers, or an Officer and an Assistant Secretary of the Issuers and each
Guarantor, 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 Units and Notes for the
Issuers and the Guarantees for the Guarantors by manual or facsimile signature.
If an Officer or Assistant Secretary whose signature is on a Unit, Note
or a Guarantee was an Officer or Assistant Secretary at the time of such
execution but no longer holds that office or position at the time the Trustee
authenticates the Unit or the Note, the Unit or the Note shall nevertheless be
valid.
A Unit or Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Unit or the
Note. The signature shall be conclusive evidence that the Unit or the Note has
been authenticated under this Indenture.
The Trustee shall authenticate (i) 105,000 Initial Units, each Unit
consisting of (a) $809.5238095 principal amount of Initial U.S. Notes and (b)
$190.4761905 principal amount of Dutch Notes for original issue, (ii) Exchange
Units, from time to time after the Issue Date for issue only in exchange for a
like principal amount of Initial Units, and (iii) subject to compliance with
Section 4.12, additional Units ("Additional Units"), each such Unit consisting
of a U.S. Note and Dutch Note ("Additional Notes") for
20
original issue after the Issue Date in an unlimited amount in each case upon
written orders of the Issuers in the form of an Officers' Certificate. Each such
written order shall specify the amount of Units to be authenticated and the date
on which the Units are to be authenticated, whether the Units are to be Initial
Units, Exchange Units or Additional Units and whether the Units are to be issued
as Physical Units or Global Units or such other information as the Trustee may
reasonably request.
In the event that the Issuers shall issue and the Trustee shall
authenticate any Additional Units, the Issuers shall use their reasonable
efforts to obtain the same "CUSIP" number for such Units as is printed on the
Units outstanding at such time; provided, however, that if any series of Units
issued under this Indenture subsequent to the Issue Date is determined, pursuant
to an Opinion of Counsel of the Issuers in a form reasonably satisfactory to the
Trustee, to be a different class of security than the Notes outstanding at such
time for federal income tax purposes, the Issuers may obtain a "CUSIP" number
for such Units that is different than the "CUSIP" number printed on the Units
then outstanding. Notwithstanding the foregoing, all Notes issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Notes will have the right to vote or consent as a separate class on
any matter.
The Trustee may appoint an authenticating agent (the "Authenticating
Agent") reasonably acceptable to the Issuers to authenticate Units and Notes.
Unless otherwise provided in the appointment, an Authenticating Agent may
authenticate Units and 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 Issuers or with any Affiliate of the Issuers.
The Units and Notes shall be issuable in fully registered form only,
without coupons, in denominations of (i) $1,000 for the Units, (ii) $809.5238095
for the U.S. Notes and (iii) $190.4761905 for the Dutch Notes; or, in each case,
any integral multiple thereof.
The Trustee is authorized to enter into a letter of representation with
the Depository in the form provided to the Trustee by the Issuers and to act in
accordance with such letter.
SECTION 2.03. Registrar and Paying Agent. The Issuers shall maintain an
office or agency (which shall be located in the Borough of Manhattan in the City
of New York, State of New York) where (a) Units, or if a Separation Event has
occurred, Notes may be presented or surrendered for registration of transfer or
for exchange ("Registrar"), (b) Units, or if a Separation Event has occurred,
Notes may be presented or surrendered for payment ("Paying Agent") and (c)
notices and demands to or upon the Issuers in respect of the Units, Notes and
this Indenture may be served. The Registrar shall keep a register of the Units
and Notes and of their transfer and exchange. The Issuers may have one or more
Co-Registrars and one or more additional Paying Agents reasonably acceptable to
the Trustee. The term "Paying Agent" or "Registrar" includes any additional
Paying Agent or Registrar, as the case may be. The Issuers and any of its
Subsidiaries may act as the Paying Agent or Registrar.
The Issuers shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall incorporate the
provisions of the TIA and implement the provisions of this Indenture that relate
to such Agent. The Issuers shall notify the Trustee of the name and address of
any such Agent. If the Issuers shall fail to maintain a Registrar or Paying
Agent the Trustee shall act as such.
The Issuers initially appoint the Trustee as Registrar, Paying Agent
and agent for service of demands and notices in connection with the Units and
Notes, until such time as the Trustee has resigned or a successor has been
appointed. Any of the Registrar, the Paying Agent or any other agent may resign
21
upon 30 days' notice to the Issuers. The Issuers may change any Paying Agent and
Registrar without notice to the Holders.
SECTION 2.04. Paying Agent to Hold Assets in Trust. The Issuers shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust for the benefit of the Holders or the Trustee
all assets held by the Paying Agent for the payment of principal of, premium, if
any, or interest on, the Notes (whether such assets have been distributed to it
by the Issuers or any other obligor on the Notes), and the Issuers and the
Paying Agent shall notify the Trustee of any Default by the Issuers (or any
other obligor on the Notes) in making any such payment. The Issuers 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 Issuers to the Paying Agent, the
Paying Agent shall have no further liability for such assets. If the Issuers or
a Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of the Holders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, the Issuers shall furnish or cause
the Registrar to furnish to the Trustee three (3) Business Days (or such shorter
period as the Trustee may expressly agree to) 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 the Holders, which list may be conclusively relied upon by the
Trustee, and the Issuers shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. Transfer and Exchange. Subject to Sections 2.16 and 2.17,
when Units (or, if a Separation Event has occurred, Notes) are presented to the
Registrar or a Co-Registrar with a request to register a transfer or to exchange
such Units or Notes for an equal principal amount of Notes or other authorized
denominations, the Registrar or Co-Registrar shall register the transfer or make
the exchange as requested if its requirements for such transaction are met;
provided, however, that the Units and Notes presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the Trustee and the
Registrar or Co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registration of transfers and exchanges,
the Issuers shall execute and the Trustee shall authenticate Units and Notes and
the Guarantors shall execute Guarantees thereon at the Registrar's or
Co-Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Issuers may require payment of a sum sufficient to
cover any transfer tax, fee or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchanges or transfers pursuant to Section 2.10, 3.07, 4.15, 4.16,
4.24 or 9.05, in which event the Issuers shall be responsible for the payment of
such taxes).
The Registrar or Co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business on the day which is 15 days before the mailing of a notice of
redemption of Notes and ending at the close of business on the day of such
mailing and (ii) selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Note being redeemed in part.
Any Holder of a beneficial interest in a Global Unit shall, by
acceptance of such Global Unit, agree that transfers of beneficial interests in
such Global Units may be effected only through a book entry
22
system maintained by the Holder of such Global Unit (or its agent), and that
ownership of a beneficial interest in the Note shall be required to be reflected
in a book entry system.
SECTION 2.07. Replacement Units and Notes. If a mutilated Unit or Note
is surrendered to the Trustee or if the Holder of a Unit or Note claims that the
Unit or Note has been lost, destroyed or wrongfully taken, the Issuers shall
issue and the Trustee shall authenticate a replacement Unit or Note and the
Guarantors shall execute a Guarantee thereon if the Trustee's requirements are
met. If required by the Trustee or the Issuers, such Holder must provide an
indemnity bond or other indemnity of reasonable tenor, sufficient in the
reasonable judgment of the Issuers, the Guarantors and the Trustee, to protect
the Issuers, the Guarantors, the Trustee or any Agent from any loss which any of
them may suffer if a Note is replaced. Every replacement Note shall constitute
an obligation of the Issuers and the Guarantors.
SECTION 2.08. Outstanding Units and Notes. Units and Notes outstanding
at any time are all the Units and Notes that have been authenticated by the
Trustee except those canceled by it, those delivered to it for cancellation and
those described in this Section as not outstanding. Subject to the provisions of
Section 2.09, a Unit or Note does not cease to be outstanding because the
Issuers or any of its Affiliates holds the Unit or Note.
If a Unit or Note is replaced pursuant to Section 2.07 (other than a
mutilated Unit or Note surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Unit or
Note is held by a bona fide purchaser. A mutilated Unit or Note ceases to be
outstanding upon surrender of such Unit or Note and replacement thereof pursuant
to Section 2.07.
If on a Redemption Date or the Maturity Date the Paying Agent holds
U.S. Legal Tender sufficient to pay all of the principal, premium, if any, and
interest due on the Units and Notes payable on that date and is not prohibited
from paying such money to the Holders thereof pursuant to the terms of this
Indenture, then on and after that date such Units and Notes shall be deemed not
to be outstanding and interest on them shall cease to accrue.
SECTION 2.09. Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver,
consent or notice, Notes owned by the Issuers or an Affiliate of the Issuers
shall be considered as though they are not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which a Trust Officer of the
Trustee actually knows are so owned shall be so considered. The Issuers shall
notify the Trustee, in writing, when either it or, to its knowledge, any of its
Affiliates repurchases or otherwise acquires Notes, of the aggregate principal
amount of such Notes so repurchased or otherwise acquired and such other
information as the Trustee may reasonably request and the Trustee shall be
entitled to rely thereon.
SECTION 2.10. Temporary Units and Notes. Until definitive Units and
Notes are ready for delivery, the Issuers may prepare and the Trustee shall
authenticate temporary Units and Notes upon receipt of a written order of the
Issuers in the form of an Officers' Certificate. The Officers' Certificate shall
specify the amount of temporary Units and Notes to be authenticated and the date
on which the temporary Units and Notes are to be authenticated. Temporary Units
and Notes shall be substantially in the form of definitive Units and Notes but
may have variations that the Issuers consider appropriate for temporary Units
and Notes and so indicate in the Officers' Certificate. Without unreasonable
delay, the Issuers shall prepare, the Trustee shall authenticate and the
Guarantors shall execute Guarantees on, upon receipt of a written order of the
Issuers pursuant to Section 2.02, definitive Units and Notes in exchange for
temporary Units and Notes.
23
SECTION 2.11. Cancellation. The Issuers at any time may deliver Units
or Notes to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Units or 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 Issuers, shall dispose, in its customary manner, of all
Units and Notes surrendered for transfer, exchange, payment or cancellation.
Subject to Section 2.07, the Issuers may not issue new Units or Notes to replace
Units or Notes that it has paid for or delivered to the Trustee for
cancellation. If the Issuers shall acquire any of the Units or Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Units or Notes unless and until the same are
surrendered to the Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest. The Issuers will pay interest on
overdue principal from time to time on demand at 1% per annum in excess of the
rate of interest then borne by the Notes. The Issuers shall, to the extent
lawful, pay interest on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at 1% per annum in excess
of the rate of interest then borne by the Notes. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months, and, in the case
of a partial month, the actual number of days elapsed.
If the Issuers default in a payment of interest on the Notes, they
shall pay the defaulted interest, plus (to the extent lawful) any interest
payable on the defaulted interest, to the Persons who are (i) Holders on a
subsequent special record date, if it so elects, which special record date shall
be the fifteenth day next preceding the date fixed by the Issuers for the
payment of defaulted interest or the next succeeding Business Day if such date
is not a Business Day, or (ii) if the Issuers do not elect a special record
date, Holders on the next Record Date, which payment shall be made on the next
regular Interest Payment Date. The Issuers shall notify the Trustee 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 Issuers shall deposit with the Trustee 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 for such deposit on or
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
provided in this Section; provided, however, that in no event shall the Issuers
deposit monies proposed to be paid in respect of defaulted interest later than
10:30 a.m. New York City time on the proposed Default Interest Payment Date. At
least 15 days before the subsequent special record date, the Issuers shall mail
(or cause to be mailed) to each Holder, as of a recent date selected by the
Issuers, 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. Notwithstanding the
foregoing, any interest which is paid prior to the expiration of the 30-day
period set forth in Section 6.01(i) shall be paid to Holders as of the regular
record date for the Interest Payment Date for which interest has not been paid.
Notwithstanding the foregoing, the Issuers may make payment of any defaulted
interest in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange.
SECTION 2.13. CUSIP Number. The Issuers in issuing the Units shall use
"CUSIP" numbers. If a Separation Event Occurs, the Company and the Dutch Issuer
shall as soon as practicable obtain "CUSIP" numbers for the U.S. Notes and Dutch
Notes, respectively. The Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided, however, that no
representation is hereby deemed to be made by the Trustee as to the correctness
or accuracy of the CUSIP number printed in the notice or on the Units or the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Units or the Notes. The Issuers shall promptly notify the Trustee
of any change in the CUSIP numbers.
24
SECTION 2.14. Deposit of Monies. Prior to 10:30 a.m. New York City time
on each Interest Payment Date, Maturity Date, Redemption Date, Change of Control
Purchase Date and Asset Sale Offer Purchase Date, the Issuers shall have
deposited with the Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Purchase Date and Asset Sale Offer Purchase
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, Maturity Date,
Redemption Date, Change of Control Purchase Date and Asset Sale Offer Purchase
Date, as the case may be.
SECTION 2.15. Restrictive Legends. Each Global Unit, Global Note,
Physical Unit and Physical Note that constitutes a Restricted Security shall
bear the legend (the "Private Placement Legend") as set forth in Exhibit A (as
the same may be revised from time to time to comply with applicable laws and
regulations) on the face thereof until after the second anniversary of the later
of the Issue Date and the last date on which the Issuers or any Affiliate of the
Issuers was the owner of such Note (or any predecessor security) (or such
shorter period of time as permitted by Rule 144 under the Securities Act or any
successor provision thereunder, unless otherwise agreed by the Issuers and the
Holder thereof) (or such longer period of time as may be required under the
Securities Act or applicable state securities laws in the opinion of counsel for
the Issuers).
Each Global Unit shall also bear the legend set forth in Exhibit A and
each Global Note shall also bear the legend as set forth in Exhibit A.
SECTION 2.16. Book-Entry Provisions for Global Units and Global Notes.
(a) The Global Units and Global Notes initially shall (i) be registered in the
name of the Depository or the nominee of such Depository, (ii) be delivered to
the Trustee as custodian for such Depository, and (iii) bear the legends as set
forth in Exhibit A.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Unit or Global
Note held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Units or Global Notes, and the Depository may be treated by the
Issuers, the Trustee and any Agent of the Issuers or the Trustee as the absolute
owner of such Global Unit or Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Issuers, the
Trustee or any Agent of the Issuers or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any Unit
or Note.
(b) Transfers of a Global Unit or Global Note shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in a Global Unit or Global
Note may be transferred or exchanged for Physical Units or Physical Notes in
accordance with the rules and procedures of the Depository and the provisions of
Section 2.17. In addition, Physical Units or Physical Notes shall be transferred
to all beneficial owners in exchange for their beneficial interests in a Global
Unit or Global Note if (i) the Depository notifies the Issuers that it is
unwilling or unable to continue as Depository for the Global Units and Global
Notes and a successor depository is not appointed by the Issuers within 90 days
of such notice or (ii) an Event of Default has occurred and is continuing and
the Registrar has received a written request from the Depository to issue
Physical Units or Physical Notes.
(c) In connection with any transfer or exchange of a portion of
the beneficial interest in a Global Unit or Global Note to beneficial owners
pursuant to paragraph (b), the Registrar shall (if one or more Physical Units or
Physical Notes are to be issued) reflect on its books and records the date and a
25
decrease in the principal amount of such Global Unit or Global Note in an amount
equal to the principal amount of the beneficial interest in the Global Unit or
Global Note to be transferred, and the Issuers shall execute, the Guarantors
shall execute Guarantees on, and the Trustee shall authenticate and deliver, one
or more Physical Units or Physical Notes of like tenor and amount.
(d) In connection with the transfer of an entire Global Unit or
Global Note to beneficial owners pursuant to paragraph (b) of this Section 2.16,
such Global Unit or Global Note shall be deemed to be surrendered to the Trustee
for cancellation, and the Issuers shall execute, the Guarantors shall execute
Guarantees on and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in exchange for its beneficial interest in
the Global Unit or Global Note, an equal aggregate principal amount of Physical
Units or Physical Notes of authorized denominations.
(e) Any Physical Unit or Physical Note constituting a Restricted
Security delivered in exchange for an interest in a Global Unit or Global Note
pursuant to paragraph (b) or (c) of this Section 2.16 shall, except as otherwise
provided by paragraphs (d) and (f) of Section 2.17, bear the Private Placement
Legend.
(f) The Holder of a Global Unit or Global Note may grant proxies
and otherwise authorize any Person, including 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, the Units or the Notes.
SECTION 2.17. Registration of Transfers and Exchanges. (a) Transfer and
Exchange of Physical Units or Physical Notes. When Physical Units or Physical
Notes are presented to the Registrar or Co-Registrar with a request:
(i) to register the transfer of the Physical Units or
Physical Notes; or
(ii) to exchange such Physical Units or Physical Notes for
an equal number of Physical Units or Physical Notes of other authorized
denominations,
the Registrar or Co-Registrar shall register the transfer or make the exchange
as requested if the requirements under this Indenture as set forth in this
Section 2.17 for such transactions are met; provided, however, that the Physical
Units or Physical Notes presented or surrendered for registration of transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or
Co-Registrar, duly executed by the Holder thereof or his
attorney-in-fact duly authorized in writing; and
(ii) in the case of Physical Units or Physical Notes the
offer and sale of which have not been registered under the Securities
Act, Physical Units or such Physical Notes shall be accompanied, in the
sole discretion of the Issuers, by the following additional information
and documents, as applicable:
(1) if such Physical Unit or Physical Note is being
delivered to the Registrar or Co-Registrar by a
Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to
that effect (substantially in the form of Exhibit J
hereto); or
26
(2) if such Physical Unit or Physical Note is being
transferred to a Qualified Institutional Buyer in
accordance with Rule 144A, a certification to that
effect (substantially in the form of Exhibit J
hereto); or
(3) if such Physical Unit or Physical Note is being
transferred to an Institutional Accredited Investor,
delivery of a certification to that effect
(substantially in the form of Exhibit J hereto) and a
Transferee Certificate for Institutional Accredited
Investors substantially in the form of Exhibit C
hereto and an Opinion of Counsel reasonably
satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act; or
(4) if such Physical Unit or Physical Note is being
transferred in reliance on Regulation S, delivery of
a certification to that effect (substantially in the
form of Exhibit J hereto) and a Transferee
Certificate for Regulation S Transfers substantially
in the form of Exhibit D hereto and an Opinion of
Counsel reasonably satisfactory to the Issuers to the
effect that such transfer is in compliance with the
Securities Act; or
(5) if such Physical Unit or Physical Note is being
transferred in reliance on Rule 144 under the
Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit J
hereto) and an Opinion of Counsel reasonably
satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act; or
(6) if such Physical Unit or Physical Note is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect (substantially in the
form of Exhibit J hereto) and an Opinion of Counsel
reasonably acceptable to the Issuers to the effect
that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical Unit or Physical Note
for a Beneficial Interest in a Global Unit or Global Note. Unless otherwise
agreed to by the Issuers, a Physical Unit or Physical Note may not be exchanged
for a beneficial interest in a Global Unit or Global Note except upon
satisfaction of the requirements set forth below. Upon receipt by the Registrar
or Co-Registrar of a Physical Unit or Physical Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Registrar or Co-Registrar, together with:
(i) certification, substantially in the form of Exhibit J
hereto, that such Physical Unit or Physical Note is being transferred
(A) to a Qualified Institutional Buyer, (B) to an Institutional
Accredited Investor or (C) in reliance on Regulation S and, in the case
of (II), a Transferee Certificate for Institutional Accredited
Investors substantially in the form of Exhibit C hereto and, in the
case of (C), a Transferee Certificate for Regulation S Transfers
substantially in the form of Exhibit D hereto and in each case an
Opinion of Counsel reasonably satisfactory to the Issuers to the effect
that such transfer is in compliance with the Securities Act; and
(ii) written instructions from the Issuers directing the
Registrar or Co-Registrar to make, or to direct the Depository to make,
an endorsement on the applicable Global Unit or Global Note to reflect
an increase in the aggregate amount of the Units or Notes represented
by the Global Unit or Global Note, then the Registrar or Co-Registrar
shall cancel such Physical Unit or Physical Note and cause, or direct
the Depository to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Registrar or
Xx-Xxxxxxxxx,
00
the principal amount of Units or Notes represented by the applicable
Global Unit or Global Note to be increased accordingly. If no Global
Unit or Global Note representing Notes held by Qualified Institutional
Buyers, Institutional Accredited Investors or Persons acquiring Notes
in reliance on Regulation S, as the case may be, is then outstanding,
the Issuers shall issue and the Trustee shall, upon written
instructions from the Issuers in accordance with Section 2.02,
authenticate such Global Unit or Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Units and Global Notes. The
transfer and exchange of Global Units, Global Notes or beneficial interests
therein shall be effected through the Depository in accordance with this
Indenture (including the restrictions on transfer set forth herein) and the
procedures of the Depository therefor. Upon receipt by the Registrar or
Co-Registrar of written instructions, or such other instruction as is customary
for the Depository, from the Depository or its nominee, requesting the
registration of transfer of an interest in (i) a QIB Global Unit, an IAI Global
Unit or a Regulation S Global Unit, as the case may be, to another type of
Global Unit, together with the applicable Global Units (or, if the applicable
type of Global Unit required to represent the interest as requested to be
transferred is not then outstanding, only the Global Unit representing the
interest being transferred) or (ii) a QIB Global Note, an IAI Global Note or a
Regulation S Global Note, as the case may be, to another type of Global Note,
together with the applicable Global Notes (or, if the applicable type of Global
Note required to represent the interest as requested to be transferred is not
then outstanding, only the Global Note representing the interest being
transferred), the Registrar or Co-Registrar shall cause, or direct the
Depository to cause, in accordance with the standing instructions and procedures
existing between the Depository and the Registrar or Co-Registrar, the principal
amount of Units or Notes represented by the applicable Global Units or Global
Notes involved in such transfer or exchange to be adjusted accordingly to
reflect the applicable increase and decrease of the principal amount of Units or
Notes represented by such types of Global Units or Global Notes, giving effect
to such transfer. If the applicable type of Global Unit or Global Note required
to represent the interest as requested to be transferred is not outstanding at
the time of such request, the Issuers shall issue and the Trustee shall, upon
written instructions from the Issuers in accordance with Section 2.02,
authenticate a new Global Unit or Global Note of such type in principal amount
equal to the principal amount of the interest requested to be transferred. Any
such transfer or exchange of Global Units, Global Notes or beneficial interests
therein shall be effected through the Depository in accordance with this
Indenture (including the restrictions on transfer as contemplated herein) and
the procedure of the Depository therefor. Unless otherwise agreed to by the
Issuers, any request for the registration of the transfer of an interest in (i)
a QIB Global Unit, an IAI Global Unit or a Regulation S Global Unit to another
type of Global Unit or (ii) a QIB Global Note, an IAI Global Note or a
Regulation S Global Note to another type of Global Note, must be accompanied by
a certificate from the transferor, substantially in the form of Exhibit J
hereto, that the transferee is either (i) a Qualified Institutional Buyer in
accordance with Rule 144A, (ii) an Institutional Accredited Investor, or (iii)
relying on Regulation S, and in the case of (ii), a Transferee Certificate for
Institutional Accredited Investors substantially in the form of Exhibit C hereto
and, in the case of (iii), a Transferee Certificate for Regulation S Transfers
substantially in the form of Exhibit D hereto and in each case an Opinion of
Counsel reasonably satisfactory to the Issuers to the effect that such transfer
is in compliance with the Securities Act.
(d) Transfer of a Beneficial Interest in a Global Unit for a
Physical Unit or Global Note for a Physical Note.
(i) Any Person having a beneficial interest in a Global
Unit may upon request exchange such beneficial interest for a Physical
Unit and any Person having a beneficial interest in a Global Note may
upon request exchange such beneficial interest for a Physical Note.
Upon receipt by the Registrar or Co-Registrar of written instructions,
or such other form of instructions as is customary for the Depository,
from the Depository or its nominee on behalf of any Person
28
having a beneficial interest in a Global Unit or Global Note and upon
receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in Notes the offer and
sale of which have not been registered under the Securities Act, the
following additional information and documents:
(1) if such beneficial interest is being transferred to
the Person designated by the Depository as being the
beneficial owner, a certification from such Person to
that effect (substantially in the form of Exhibit J
hereto); or
(2) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule
l44A, a certification to that effect (substantially
in the form of Exhibit J hereto); or
(3) if such beneficial interest is being transferred to
an Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the
form of Exhibit J hereto) and a Certificate for
Institutional Accredited Investors substantially in
the form of Exhibit C hereto and an Opinion of
Counsel reasonably satisfactory to the Issuers to the
effect that such transfer is in compliance with the
Securities Act; or
(4) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a certification
to that effect (substantially in the form of Exhibit
J hereto) and a Transferee Certificate for Regulation
S Transfers substantially in the form of Exhibit D
hereto and an Opinion of Counsel reasonably
satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act; or
(5) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit J hereto) and
an Opinion of Counsel reasonably satisfactory to the
Issuers to the effect that such transfer is in
compliance with the Securities Act; or
(6) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
J hereto) and an Opinion of Counsel reasonably
satisfactory to the Issuers to the effect that such
transfer is in compliance with the Securities Act,
then the Registrar or Co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository
and the Registrar or Co-Registrar, the aggregate principal amount of
the applicable Global Unit or Global Note to be reduced and, following
such reduction, the Issuers will execute and, upon receipt of an
authentication order in the form of an Officers' Certificate in
accordance with Section 2.02, the Trustee will authenticate and deliver
to the transferee a Physical Unit or Physical Note, as applicable.
(ii) Units issued in exchange for a beneficial interest in
a Global Unit and Notes issued in exchange for a beneficial interest in
a Global Note pursuant to this Section 2.17(d) shall be registered in
such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Registrar or Co-
29
Registrar in writing. The Registrar or Co-Registrar shall deliver such
Physical Units or Physical Notes to the Persons in whose names such
Physical Units or Physical Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global Units and
Global Notes. Notwithstanding any other provisions of this Indenture, a Global
Unit or Global Note may not be transferred as a whole except by the Depository
to a nominee of the Depository or by a nominee of the Depository to the
Depository or by any such nominee to a successor Depository or a nominee of such
successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Units or Notes not bearing the Private Placement Legend, the
Registrar or Co-Registrar shall deliver Units or Notes that do not bear the
Private Placement Legend. Upon the transfer, exchange or replacement of Units or
Notes bearing the Private Placement Legend, the Registrar or Co-Registrar shall
deliver only Units or Notes that bear the Private Placement Legend unless (i)
the requested transfer is after the second anniversary of the Issue Date
(provided, however, that neither the Issuers nor any Affiliate of the Issuers
has held any beneficial interest in such Unit or Note, or portion thereof, at
any time prior to or on the second anniversary of the Issue Date unless
otherwise agreed by the Issuers) and (ii) there is delivered to the Registrar or
Co-Registrar a certificate and/or, if requested, an Opinion of Counsel, each
reasonably satisfactory to the Issuers and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act.
(g) General. By its acceptance of any Unit or Note bearing the
Private Placement Legend, each Holder of such a Unit or Note acknowledges the
restrictions on transfer of such Unit or Note set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Unit or Note
only as provided in this Indenture.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.16 or this Section 2.17.
The Issuers shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time during the
Registrar's normal business hours upon the giving of reasonable written notice
to the Registrar.
(h) Transfers of Units and Notes Held by Affiliates. Any
certificate (i) evidencing a Unit or Note that has been transferred to an
Affiliate of the Issuers within two years after the Issue Date, as evidenced by
a notation on the Assignment Form for such transfer or in the representation
letter delivered in respect thereof or (ii) evidencing a Unit or Note that has
been acquired from an Affiliate (other than by an Affiliate) in a transaction or
a chain of transactions not involving any public offering, shall, until two
years after the last date on which the Issuers or any Affiliate of the Issuers
was an owner of such Unit or Note, in each case, bear the Private Placement
Legend, unless otherwise agreed by the Issuers (with written notice thereof to
the Trustee).
SECTION 2.18. Additional Interest Under Registration Rights Agreement.
Under certain circumstances, the Issuers shall be obligated to pay certain
Additional Interest to the Holders, all as set forth in Section 4 of the
Registration Rights Agreement. The terms thereof are hereby incorporated herein
by reference.
30
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Issuers elect to redeem Notes
pursuant to the terms of the Notes, it shall notify the Trustee and the Paying
Agent in writing of the Redemption Date and the principal amount of the Notes to
be redeemed.
The Issuers shall give each notice to the Trustee provided for in this
Section 3.01 at least 45 days before the Redemption Date (unless a shorter
notice period shall be satisfactory to the Trustee), together with an Officers'
Certificate stating that such redemption shall comply with the conditions
contained herein and in the Notes. Any such notice may be canceled at any time
prior to notice of such redemption being mailed to any Holder and shall thereby
be void and of no effect.
SECTION 3.02. Selection of Notes To Be Redeemed. If less than all of
the Notes are to be redeemed at any time, selection of the Notes to be redeemed
will be made by the Trustee in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not listed on a securities exchange, on a pro rata basis or by lot or
any other method as the Trustee shall deem fair and appropriate; provided, that
Notes redeemed in part shall only be redeemed in integral multiples of $1,000;
provided further, that any such redemption pursuant to the provisions relating
to a Public Equity Offering shall be made on a pro rata basis or on as nearly a
pro rata basis as practicable (subject to the procedures of The Depository Trust
Company or any other depositary), unless such method is otherwise prohibited.
Each redemption made pursuant to this Article III, other than pursuant
to Section 3.03(d), shall include both U.S. Notes and Dutch Notes on a pro rata
basis based on the aggregate principal amount of the Notes outstanding at the
time of redemption, unless a Change in Control of the Dutch Issuer has occurred.
SECTION 3.03. Optional Redemption.
(a) Optional Redemption Prior to June 1, 2005. At any time prior
to June 1, 2005, the Issuers may, at their option, on one or more occasions
redeem all or part of their Notes at a redemption price equal to the greater of
(1) 100% of the aggregate principal amount of the Notes being redeemed and (2)
the sum of the present values of 114% of the aggregate principal amount of the
Notes being redeemed and scheduled payments of interest on such Notes to and
including June 1, 2005 discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate plus 50 basis points, together with, in each case, accrued and
unpaid interest, if any, to the date of redemption.
(i) "Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal
amount) equal to the Comparable Treasury Price for such redemption
period.
(ii) "Comparable Treasury Issue" means the United States
Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of
the Notes (as if the final maturity of the Notes was June 1, 2005) that
would be utilized at the time of selection and in accordance with
customary financial practice in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of the Notes
(as if the final maturity of the Notes was June 1, 2005).
31
(iii) "Comparable Treasury Price" means, with respect to
any redemption date, (1) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) on the third Business Day preceding such
redemption date, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities" or (2) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the
average of the Reference Treasury Dealer Quotations (as defined below)
for such redemption date, after excluding the highest and lowest such
Reference Treasury Dealer Quotation or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average of
all such Reference Treasury Dealer Quotations.
(iv) "Reference Treasury Dealer Quotation" means, with
respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Company by such
Reference Treasury Dealer at 5:00 p.m. on the third Business Day
preceding such redemption date.
(v) "Reference Treasury Dealer" means any primary U.S.
government securities dealer in the City of New York selected by the
Company.
(b) Optional Redemption on or after June 1, 2005. The Notes are
redeemable at the option of the Issuers, in whole or in part, at any time on or
after June 1, 2005 at the redemption prices (expressed as percentages of the
principal amount of the Notes) set forth below plus in each case accrued and
unpaid interest to the date of redemption, if redeemed during the six-month
period beginning on the dates indicated below:
Period Percentage
------ ----------
June 1, 2005................................ 114.0%
December 1, 2005............................ 109.0%
June 1, 2006................................ 105.0%
December 1, 2006 and thereafter............. 101.0%
(c) Redemption Upon Equity Offering. In addition, at any time
prior to June 1, 2005, the Issuers may, at their option, redeem up to 35% of the
sum of (i) the initial aggregate principal amount of the Notes issued in the
Offering and (ii) the respective initial aggregate principal amount of the Notes
issued after the Issue Date, on one or more occasions with the net proceeds of
one or more Public Equity Offerings at 113% of the principal amount thereof,
plus accrued and unpaid interest to the date of redemption; provided, that
immediately after giving effect to such redemption, at least 65% of the sum of
(i) $105.0 million (the initial aggregate principal amount of the Notes issued
in the Offering) and (ii) the respective initial aggregate principal amount of
the Notes after the Issue Date remain outstanding (other than any Notes owned by
the Company or any of its Affiliates). In order to effect the foregoing
redemption with the proceeds of any Public Equity Offering, the Issuers will
make such redemption not more than 90 days after the consummation of any such
Public Equity Offering.
"Public Equity Offering" means an underwritten public offering of
Capital Stock (other than Disqualified Stock) of the Company pursuant to an
effective registration statement filed under the Securities Act.
32
(d) Tax Redemption. Dutch Notes may be redeemed, at the option of
the Dutch Issuer, as a whole, but not in part (limited to Dutch Notes with
respect to which an Additional Amount (as described above) is or may be
required), at any time, upon giving notice to holders not less than 30 days nor
more than 60 days prior to the date fixed for redemption (which notice shall be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof, together with interest accrued to the date fixed for redemption and any
Additional Amounts payable with respect thereto, if the Dutch Issuer determines
and certifies to the Trustee immediately prior to the giving of such notice that
(i) the Dutch Issuer or any Guarantor (or the U.S. Issuer with respect to the
Company Guarantee) in respect of the Dutch Notes has or will become obligated to
pay Additional Amounts in respect of such Dutch Notes as a result of any change
in or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the Netherlands or any Relevant Jurisdiction or any political
subdivision or taxing authority thereof or therein affecting taxation, or any
change in the official position regarding the application or interpretation of
such laws, regulations or rulings (including a holding by a court of competent
jurisdiction) which change or amendment becomes effective on or after the date
of issuance of such Dutch Notes and (ii) such obligation cannot be avoided by
the Dutch Issuer or such Guarantor (or the U.S. Issuer with respect to the
Company Guarantee) taking reasonable measures available to it, provided, that no
such notice of redemption shall be given earlier than 60 days prior to the
earliest date on which the Dutch Issuer or such Guarantor (or the U.S. Issuer
with respect to the Company Guarantee) would be obligated to pay such Additional
Amounts if a payment in respect of such Dutch Notes was then due. Prior to the
giving of any notice of redemption described in this paragraph, the Dutch Issuer
shall deliver to the Trustee (a) a certificate signed by two directors of the
Dutch Issuer stating that the obligation to pay Additional Amounts cannot be
avoided by the Dutch Issuer or such Guarantor (or the U.S. Issuer with respect
to the Company Guarantee) taking reasonable measures available to them and (b) a
written opinion of independent legal counsel to the Dutch Issuer to the effect
that the Dutch Issuer or such Guarantor (or the U.S. Issuer with respect to the
Company Guarantee) has become obligated to pay Additional Amounts as a result of
such a change or amendment described above and that the Dutch Issuer or such
Guarantor (or the U.S. Issuer with respect to the Company Guarantee) cannot
avoid payment of such Additional Amounts by taking reasonable measures available
to them.
SECTION 3.04. Notice of Redemption. Notices of any optional or
mandatory redemption shall be mailed by first class mail at least 30 but not
more than 60 days before the Redemption Date to each Holder to be redeemed at
such Holder's registered address, with a copy to the Trustee and any Paying
Agent. At the Issuers' request, the Trustee shall give the notice of redemption
in the Issuer's names and at the Issuers' expense. The Issuers shall provide
such notices of redemption to the Trustee at least five days before the intended
mailing date (unless a shorter period shall be satisfactory to the Trustee).
Each notice of redemption shall identify (including the CUSIP number)
the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if
any, to be paid;
(3) the name and address of the Paying Agent;
(4) the subparagraph of the Notes pursuant to which such
redemption is being made;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest, if any;
33
(6) that, unless the Issuers default in making the redemption
payment, interest on Notes or applicable portions thereof called for redemption
ceases 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 plus
accrued interest as of the Redemption Date, if any, upon surrender to the Paying
Agent of the Notes redeemed;
(7) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed, and the Trustee shall authenticate
and mail to the Holder of the original Note a Note in principal amount equal to
the unredeemed portion of the original Note promptly after the original Note has
been canceled; and
(8) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes of such Holder (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.
The Issuers will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption
is mailed in accordance with Section 3.04, such notice of redemption shall be
irrevocable and Notes called for redemption become due and payable on the
Redemption Date and at the Redemption Price plus accrued interest as of such
date, if any. Upon surrender to the Trustee or Paying Agent, such Notes called
for redemption shall be paid at the Redemption Price plus accrued interest
thereon 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 referred to in the
Notes. Interest shall accrue on or after the Redemption Date and shall be
payable only if an Issuer defaults in payment of the Redemption Price.
SECTION 3.06. Deposit of Redemption Price. On or before the Redemption
Date and in accordance with Section 2.14, the Issuers shall deposit with the
Paying Agent U.S. Legal Tender sufficient to pay the Redemption Price plus
accrued interest, if any, of all Notes to be redeemed on that date. The Paying
Agent shall promptly return to the Issuers any U.S. Legal Tender so deposited
which is not required for that purpose, except with respect to monies owed as
obligations to the Trustee pursuant to Article Seven.
Unless the Company fails to comply with the preceding paragraph and
defaults in the payment of such Redemption Price plus accrued interest, if any,
interest on the Notes to be redeemed will cease to accrue on and after the
applicable Redemption Date on Notes or portions thereof called for redemption,
whether or not such Notes are presented for payment.
SECTION 3.07. Notes Redeemed in Part. Upon surrender of a Note that is
to be redeemed in part, the Trustee shall authenticate for the Holder a new Note
or Notes equal in principal amount to the unredeemed portion of the Note
surrendered.
34
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes. (a) Each Issuer shall pay the principal
of, premium, if any, and interest on the Notes issued by the Issuer on the dates
and in the manner provided in such Notes and in this Indenture.
(b) 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 (other
than each Issuer or any of its Affiliates) holds, prior to 10:30 a.m. New York
City time on that date, U.S. Legal Tender 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 or the Notes.
(c) Each Issuer 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) from time to time on demand at
1% per annum in excess of the rate borne by the Notes issued by such Issuer.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months.
(d) Notwithstanding anything to the contrary contained in this
Indenture, either Issuer may, to the extent it is required to do so by law, or
shall cause the Trustee to, deduct or withhold income or other similar taxes
imposed by the United States of America from principal or interest payments in
respect of the Notes issued by such Issuer that are made hereunder.
SECTION 4.02. Maintenance of Office or Agency. The Issuers shall
maintain the office or agency required under Section 2.03. The Issuers shall
give prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuers 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 11.02.
SECTION 4.03. Corporate Existence. Except as otherwise permitted by
Article Five, the Issuers shall do or cause to be done, at their own cost and
expense, all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of the Restricted
Subsidiaries in accordance with the respective organizational documents of each
such Restricted Subsidiary and the material rights (charter and statutory) and
franchises of the Issuers and each Restricted Subsidiary; provided, however,
that each Issuer shall not be required to preserve, with respect to itself, any
material right or franchise and, with respect to any Restricted Subsidiaries,
any such existence, material right or franchise, if the Board of Directors of
the Issuers (or if such existence is with respect to any Restricted Subsidiary
which is not a Significant Subsidiary, by the appropriate Officers of the
Issuers) shall determine in good faith that the preservation thereof is no
longer desirable in the conduct of the business of the Issuers and the
Subsidiaries, taken as a whole.
SECTION 4.04. Payment of Taxes and Other Claims. The Issuers shall pay
or discharge or cause to be paid or discharged, before penalties attach, (i) all
material taxes, assessments and governmental charges (including withholding
taxes and any penalties, interest and additions to taxes) levied or imposed upon
it or any of the Restricted Subsidiaries or properties of it or any of its
Restricted Subsidiaries and (ii) all material lawful claims for labor, materials
and supplies that, if unpaid, might by law become a Lien upon the property of
the Issuers or any of the Restricted Subsidiaries; provided, however, that the
Issuers shall not be required to pay or discharge or cause to be paid or
discharged any
35
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate negotiations or proceedings
properly instituted and conducted for which adequate reserves, to the extent
required under GAAP, have been taken.
SECTION 4.05. Maintenance of Properties and Insurance. (a) The Issuers
shall, and shall cause each of the Restricted Subsidiaries to, maintain all
material properties used in the conduct of its business in working order and
condition (subject to ordinary wear and tear) and make all necessary repairs,
renewals, replacements, additions, betterments and improvements thereto and
actively conduct and carry on its business; provided, however, that nothing in
this Section 4.05 shall prevent the Issuers or any of the Restricted
Subsidiaries from discontinuing the operation and maintenance of any of its
properties, if such discontinuance is (i) in the ordinary course of business
pursuant to customary business terms or (ii) in the good faith judgment of the
respective Boards of Directors or other governing body of the Issuers or
Restricted Subsidiary, as the case may be, desirable in the conduct of their
respective businesses and would not be reasonably likely to cause a material
adverse effect upon the business, operations, assets, condition (financial or
otherwise) or prospects of the Issuers and the Subsidiaries, taken as a whole.
(b) The Issuers shall provide or cause to be provided, for itself
and each of the Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds that, in the good faith
judgment of the Issuers, are customary for companies of a similar size in the
conduct of the business of the Issuers and the Restricted Subsidiaries, with
reputable insurers or with the Government of the United States of America or any
agency or instrumentality thereof (if not through self-insurance).
SECTION 4.06. Compliance Certificate; Notice of Default. (a) The
Issuers shall deliver to the Trustee, within 90 days after the end of each of
the Issuers' fiscal years, an Officers' Certificate (provided, however, that one
of the signatories to each such Officers' Certificate shall be each Issuer's
principal executive officer, principal financial officer or principal accounting
officer), as to such Officers' knowledge, without independent investigation, of
such Issuer's compliance with all conditions and covenants under this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder) and in the event any Default of such Issuer exists, such Officers'
Certificate shall specify the nature of such Default. Each such Officers'
Certificate shall also notify the Trustee should such Issuer elect to change the
manner in which it fixes its fiscal year-end.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the annual financial
statements delivered pursuant to Section 4.08 shall be accompanied by a written
report of the Issuers' independent certified public accountants (who shall be a
firm of established national reputation) stating whether, in connection with
their audit examination, any Default or Event of Default, as they relate to
accounting matters, has come to their attention specifying the nature and period
of existence thereof; provided, however, that, without any restriction as to the
scope of the audit examination, such independent certified public accountants
shall not be liable by reason of any failure to obtain knowledge of any such
Default or Event of Default that would not be disclosed in the course of an
audit examination conducted in accordance with generally accepted auditing
standards.
(c) (i) If any Default or Event of Default has occurred and is
continuing or (ii) if any Holder seeks to exercise any remedy hereunder with
respect to a claimed Default under this Indenture or the Notes, the Issuers
shall deliver to the Trustee, at its address set forth in Section 11.02, by
registered or certified mail or by facsimile transmission followed by hard copy
by registered or certified mail an Officers' Certificate specifying such event,
notice or other action promptly upon its becoming aware of such occurrence.
SECTION 4.07. Compliance with Laws. The Issuers shall comply, and shall
cause each of their Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders and restrictions of the
00
Xxxxxx Xxxxxx xx Xxxxxxx, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau, agency
and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except
for such noncompliances as would not singly or in the aggregate reasonably be
expected to have a material adverse effect on the financial condition or results
of operations of the Issuers and their Subsidiaries taken as a whole.
SECTION 4.08. Provision of Financial Statements and Information.
Whether or not either Issuer is then subject to Section 13(a) or 15(d) of the
Exchange Act, the Company will file with the Commission following the
effectiveness of the Exchange Offer Registration Statement, so long as any Notes
are outstanding, the annual reports, quarterly reports and other periodic
reports which the Company would have been required to file with the Commission
pursuant to such Section 13(a) or 15(d) if the Company were so subject, and such
documents shall be filed with or furnished to the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file or furnish such documents if the Company were so
subject; provided the Commission will accept such filings. The Company will also
in any event (i) within 15 days of each Required Filing Date following the
effectiveness of the Exchange Offer Registration Statement, file with the
Trustee, and supply the Trustee with copies for delivery to the Holders and
prospective purchasers of the Notes, the annual reports, quarterly reports and
other periodic reports which the Company would have been required to file with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act if the
Company were subject to such Sections and (ii) if the Commission will not accept
the filing of such documents promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder of the Notes. Prior to the effectiveness of the Exchange
Offer Registration Statement, the Company will provide upon request from Holders
or prospective Holders of Notes the information required by Rule 144A(d) (4)
under the Securities Act.
SECTION 4.09. Waiver of Stay, Extension or Usury Laws. The Issuers
covenant (to the extent that they may lawfully do so) that they 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 Issuers from paying all or any portion of the
principal of 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 Issuers hereby expressly waive all benefits or advantages 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 4.10. Limitation on Restricted Payments. (a) The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
make any Restricted Payment, unless at the time of and immediately after giving
effect to the proposed Restricted Payment (with the value of any such Restricted
Payment, if other than cash, to be determined reasonably and in good faith by
the Board of Directors of the Company):
(i) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
(ii) the Company could incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.12 and
(iii) the aggregate amount of all Restricted Payments made
by the Company and its Restricted Subsidiaries after the Issue Date
shall not exceed the sum of:
37
(1) an amount equal to 50% of the Company's
aggregate cumulative Consolidated Net Income
accrued on a cumulative basis during the
period (treated as one accounting period)
beginning on the first day of the first
calendar month after the Issue Date and
ending on the date of such proposed
Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income for such
period shall be a deficit, minus 100% of
such deficit); plus
(2) the aggregate amount of all net cash
proceeds received since the Issue Date by
the Company from the issuance and sale
(other than to a Restricted Subsidiary) of,
or equity contribution with respect to,
Capital Stock (other than Disqualified
Stock) and the principal amount of
Indebtedness of the Company or any
Restricted Subsidiary issued or incurred on
or after the Issue Date that has been
converted into or exchanged for Capital
Stock (other than Disqualified Stock), in
any such case and solely for purposes of
avoiding duplication, to the extent that
such proceeds are not theretofore used (x)
to redeem, repurchase, retire or otherwise
acquire Capital Stock or any Indebtedness of
the Company or any Restricted Subsidiary
pursuant to clause (ii) of the next
paragraph or (y) to make any Restricted
Investment pursuant to clause (iv) of the
next paragraph; plus
(3) the amount of the net reduction in
Investments in Unrestricted Subsidiaries
resulting from (x) the payment of dividends
or the repayment in cash of the principal of
loans or the cash return on any Investment,
in each case to the extent received by the
Company or any Restricted Subsidiary from
Unrestricted Subsidiaries, (y) the release
or extinguishment of any guaranty of
Indebtedness of any Unrestricted Subsidiary,
and (z) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries
(valued as provided in the definition of the
term "Investment"), such aggregate amount of
the net reduction in Investments not to
exceed in the case of any Unrestricted
Subsidiary the amount of Restricted
Investments previously made by the Company
or any Restricted Subsidiary in such
Unrestricted Subsidiary, which amount was
included in the calculation of the amount of
Restricted Payments; plus
(4) to the extent that any Restricted Investment
that was made after the Issue Date is sold
for cash or the proceeds of such sale are
converted into cash or otherwise liquidated
or repaid for cash, the amount of cash
proceeds received with respect to such
Restricted Investment, net of taxes and the
cost of disposition, not to exceed the
amount of Restricted Investments made after
the Issue Date.
(b) The foregoing provisions do not prohibit, so long as no
Default or Event of Default is continuing or would occur as a consequence
thereof, the following actions (collectively, "Permitted Payments"):
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at such declaration date such payment
would have been permitted under this Indenture (which
38
payment shall be deemed to have been paid on such date of declaration
for purposes of clause (iii) of the preceding paragraph);
(ii) the redemption, repurchase, retirement or other
acquisition of any Capital Stock or any Indebtedness of the Company or
any Restricted Subsidiary in exchange for, or out of the proceeds of,
the substantially concurrent sale (other than to a Restricted
Subsidiary) of, or equity contribution with respect to, Capital Stock
of the Company (other than any Disqualified Stock);
(iii) any purchase or defeasance of Subordinated
Indebtedness to the extent required upon a Change of Control by this
Indenture or other agreement or instrument pursuant to which such
Subordinated Indebtedness was issued or any refinancing of Subordinated
Indebtedness permitted by this Indenture or other agreement or
instrument pursuant to which such Subordinated Indebtedness was issued,
but only if the Company has complied with its obligations under the
provisions described under Section 4.15;
(iv) any Restricted Investment to the extent the sole
consideration for which consists of, or is made with the proceeds of
the substantially concurrent sale (other than to a Restricted
Subsidiary) of, or equity contribution with respect to, Capital Stock
of the Company (other than any Disqualified Stock);
(v) the repurchase of Capital Stock of the Company
(including options, warrants or other rights to acquire such Capital
Stock) from departing or deceased directors, officers and employees of
the Company and its Subsidiaries pursuant to the terms of an employee
benefit plan or employee agreement in an aggregate amount that shall
not exceed $500,000 since the Issue Date plus the aggregate cash
proceeds from any payments on insurance policies in which the Company
or any of its Subsidiaries is the beneficiary with respect to any
directors, officers or employees of the Company and its Subsidiaries
which proceeds are used to purchase the Capital Stock of the Company or
any Restricted Subsidiary of the Company held by any of such directors,
officers or employees; and the repurchase of Capital Stock of the
Company or a Restricted Subsidiary by the Company or such Restricted
Subsidiary pursuant to the terms of any of the Shareholders Agreements;
(vi) loans or advances to employees of the Company or any
of its Subsidiaries which loans or advances exist on the Issue Date,
and other loans or advances to employees of the Company or any
Subsidiary to pay reasonable relocation expenses or otherwise entered
into in the ordinary course of business not to exceed $500,000 in the
aggregate principal amount at any one time outstanding;
(vii) Restricted Payments in an amount such that the sum of
the aggregate amount of Restricted Payments made pursuant to this
clause (vii) after the Issue Date does not exceed $2.5 million at any
one time outstanding; and
(viii) payments pursuant to any of the Transactions or made
in a manner consistent with the information under the caption "Use of
Proceeds" (other than general corporate purposes) in the Offering
Circular pursuant to which the Notes are offered and sold.
For purposes of clause (iii) of the first paragraph of this covenant,
the Permitted Payments referred to in clauses (i) and (v) above shall be
included in the aggregate amount of Restricted Payments made since the Issue
Date, and any other Permitted Payments described above shall be excluded.
39
SECTION 4.11. Limitation on Transactions with Affiliates. (a) The
Company will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, enter into or suffer to exist any transaction or series of related
transactions (including, without limitation, the sale, purchase, exchange or
lease of assets, property or services) with any Affiliate of the Company unless:
(i) such transaction or series of transactions is on terms that are no less
favorable to the Company or such Restricted Subsidiary, as the case may be, than
those that could reasonably be obtainable at such time in a comparable
transaction in arm's-length dealings with an unrelated third party, and (ii) the
Company delivers to the Trustee (A) with respect to any transaction or series of
transactions involving aggregate payments in excess of $250,000, an Officer's
Certificate certifying that such transaction or series of related transactions
has been approved by a majority of the members of the Board of Directors of the
Company, and (B) with respect to any transaction or series of transactions
involving aggregate payments in excess of $5.0 million, an opinion as to the
fairness of the transaction to the Company from a financial point of view issued
by an accounting, appraisal or investment banking firm of national standing.
Notwithstanding the foregoing, this covenant does not apply to:
(i) employment agreements or compensation or employee
benefit arrangements with any officer, director or employee of the
Company or any of its Restricted Subsidiaries entered into in the
ordinary course of business (including customary benefits thereunder
and including reimbursement or advancement of out-of-pocket expenses,
and director's and officer's liability insurance);
(ii) any transaction entered into by or among the Company
or one of its Restricted Subsidiaries with one or more Restricted
Subsidiaries of the Company;
(iii) any transaction permitted by the second paragraph
under Section 4.10;
(iv) transactions permitted by, and complying with, the
provisions described under Section 5.01 and 5.02;
(v) any Transaction or any transaction described under
the caption "Use of Proceeds" in the Offering Circular pursuant to
which the Notes are offered and sold; and
(vi) agreements to make the payments described in clause
(y)(2) of the second sentence of the definition of the term
"Investment."
As of the Issue Date, the cash salary and bonus in the aggregate
payable to Xxxx Xxxxxxxx in respect of each fiscal year beginning on or after
July 1, 2003 (i) for which Cash Flow of the prior fiscal year is less than $25.0
million shall be capped at $750,000, (ii) for which Cash Flow of the prior
fiscal year is greater than or equal to $25.0 million but less than $36.0
million, shall not exceed the sum of (A) $750,000 plus (B) (1) $900,000 times
(2) a ratio, the numerator of which is Cash Flow with respect to such prior
fiscal year less $25.0 million and the denominator of which is $11.0 million and
(iii) for which Cash Flow of the prior fiscal year is greater than or equal to
$36.0 million, shall be determined by the Compensation Committee of the Board of
Directors and shall not exceed $2.0 million.
SECTION 4.12. Limitation on Incurrence of Indebtedness. (a) The Company
will not, and will not permit any Restricted Subsidiary to, create, incur,
assume or directly or indirectly guarantee or in any other manner become
directly or indirectly liable for ("incur") any Indebtedness (including Acquired
Debt), except that the Company and any Domestic Guarantor may incur Indebtedness
(including Acquired Debt) if, immediately after giving pro forma effect to, such
incurrence of Indebtedness, the Consolidated Cash Flow Coverage Ratio of the
Company for the most recently ended four fiscal quarters
40
would be at least 2.25 to 1.0 if incurred during the period from the Issue Date
through the second anniversary thereof, and 2.50 to 1.0 if incurred thereafter.
The foregoing limitations do not apply to the incurrence of any of the
following (collectively, "Permitted Indebtedness"), each of which shall be given
independent effect:
(i) Indebtedness of the Company and its Restricted
Subsidiaries arising under the Credit Agreement, in an aggregate
principal amount not to exceed at any time outstanding an amount equal
to (x) $15.0 million; less (y) during the 30 day period preceding the
date on which a scheduled payment of interest is due on the Notes, the
aggregate amount of such interest, less (z) during the 30 day period
preceding the date on which a scheduled payment of interest is due on
the Existing Notes, the aggregate amount of such interest;
(ii) Indebtedness of the Issuers and the Guarantors
represented by the Notes issued on the Issue Date in the Offering,
Exchange Notes issued in exchange for such Notes or in exchange for
Notes issued in compliance with the first paragraph of this covenant
and the related Guarantees and the Company Guarantee;
(iii) Indebtedness of the Company or any Restricted
Subsidiary in existence, and Indebtedness pursuant to any commitment in
effect under any credit agreement or facility (other than the Credit
Agreement), in each case, on the Issue Date ("Existing Indebtedness");
(iv) Indebtedness of a Domestic Restricted Subsidiary of
the Company to the Company or to a Restricted Subsidiary of the Company
for so long as such Indebtedness is held by the Company or a Restricted
Subsidiary of the Company or the holder of a Permitted Lien thereon of
the type described in clause (i), (vii) or (xv) of the definition
thereof, in each case, subject to no Lien held by a Person other than
the Company or a Restricted Subsidiary of the Company or the holder of
a Permitted Lien of the type described in clause (i), (vii) or (xv) of
the definition thereof; provided that (A) any such Indebtedness is
subordinated, pursuant to a written agreement by the holder thereof, to
such Subsidiary's Obligations under this Indenture and its Guarantee
and (B) if as of any date any Person other than the Company or a
Restricted Subsidiary of the Company or the holder of a Permitted Lien
thereon of the type described in clause (i), (vii) or (xv) of the
definition thereof owns or holds any such Indebtedness or holds a Lien
in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness
under this clause (iv) by the issuer of such Indebtedness;
(v) Indebtedness of a Foreign Restricted Subsidiary of
the Company to the Company or to a Restricted Subsidiary of the Company
for so long as such Indebtedness is permitted to be made as a Permitted
Investment under clause (i)(B), (ix) or (x) of the definition thereof
and is held by the Company or a Restricted Subsidiary of the Company,
as the case may be, or the holder of a Permitted Lien thereon of the
type described in clause (i), (vii) or (xv) of the definition thereof,
in each case, subject to no Lien held by a Person other than the
Company or a Restricted Subsidiary of the Company, as the case may be,
or the holder of a Permitted Lien of the type described in clause (i),
(vii) or (xv) of the definition thereof; provided that (A) if such
Indebtedness was made as a Permitted Investment under clause (i)(B) of
the definition thereof to the Dutch Issuer or any Foreign Guarantor,
such Indebtedness shall be subordinated, pursuant to a written
agreement by the holder thereof, to the Dutch Issuer's or such Foreign
Guarantor's, as the case may be, Obligations under this Indenture and
the Dutch Notes or its Foreign Guarantee, as applicable, and (B) if as
of any date any Person other than the Company or a Restricted
Subsidiary of the Company, as the case may be, or the holder of a
Permitted Lien thereon of the type described in clause (i), (vii) or
(xv) of the definition thereof owns or holds any such
41
Indebtedness or holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness under this clause (v) by the issuer of such
Indebtedness;
(vi) (A) Indebtedness of a Foreign Restricted Subsidiary
of the Company to a Foreign Restricted Subsidiary of the Company that
is not the Dutch Issuer or a Restricted Subsidiary thereof for so long
as such Indebtedness is held by such Foreign Restricted Subsidiary of
the Company or the holder of a Permitted Lien thereon of the type
described in clause (xv) of the definition thereof, in each case,
subject to no Lien held by a Person other than the Company or such
Foreign Restricted Subsidiary of the Company or the holder of a
Permitted Lien of the type described in clause (xv) of the definition
thereof (provided that if as of any date any Person other than such
Foreign Restricted Subsidiary of the Company or the holder of a
Permitted Lien thereon of the type described in clause (xv) of the
definition thereof owns or holds any such Indebtedness or holds a Lien
in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness
under this clause (vi)(A) by the issuer of such Indebtedness); and (B)
Indebtedness of the Dutch Issuer or any Restricted Subsidiary thereof
to a Restricted Subsidiary of the Dutch Issuer or the Dutch Issuer for
so long as such Indebtedness is held by a Restricted Subsidiary of the
Dutch Issuer or the Dutch Issuer or the holder of a Permitted Lien
thereon of the type described in clause (vii) or (xv) of the definition
thereof, in each case, subject to no Lien held by a Person other than a
Restricted Subsidiary of the Dutch Issuer or the Dutch Issuer or the
holder of a Permitted Lien of the type described in clause (vii) or
(xv) of the definition thereof (provided that (1) any such Indebtedness
is subordinated, pursuant to a written agreement by the holder thereof,
to the Dutch Issuer's or such Restricted Subsidiary's, as the case may
be, Obligations under this Indenture and the Dutch Notes or its
Guarantee, as applicable, and (2) if as of any date any Person other a
Restricted Subsidiary of the Dutch Issuer or the Dutch Issuer or the
holder of a Permitted Lien thereon of the type described in clause
(vii) or (xv) of the definition thereof owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness under this clause (vi)(B) by the issuer of such
Indebtedness);
(vii) Indebtedness of the Company to a Restricted
Subsidiary of the Company for so long as such Indebtedness is held by a
Restricted Subsidiary of the Company, in each case, subject to no Lien
other than a Permitted Lien of the type described in clause (i), (vii)
or (xv) of the definition thereof; provided that (A) any such
Indebtedness is subordinated, pursuant to a written agreement by the
holder thereof, to the Company's Obligations under this Indenture and
the Notes and (B) if as of any date any Person other than a Restricted
Subsidiary of the Company or the holder of a Permitted Lien of the type
described in clause (i), (vii) or (xv) of the definition thereof, owns
or holds any such Indebtedness or any Person holds a Lien in respect of
such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness under this clause
(vii) by the Company;
(viii) Indebtedness of the Company or any Restricted
Subsidiary arising with respect to (A) Interest Rate Agreement
Obligations incurred for the purpose of fixing or hedging interest rate
risk or currency risk with respect to any fixed or floating rate
Indebtedness that is permitted by the terms of this Indenture to be
outstanding to the extent that the notional amount of any such Interest
Rate Agreement Obligations do not exceed at the time of the incurrence
thereof, the principal amount of Indebtedness to which such Interest
Rate Agreement Obligations relate and (B) Currency Agreement
Obligations incurred for the purpose of fixing or hedging currency risk
with respect to any receivable or liability the payment of which is
determined by reference to a foreign currency (provided that in the
case of Currency Agreement Obligations which relate to
42
Indebtedness, such Currency Agreement Obligations do not increase the
Indebtedness of the Company and its Restricted Subsidiaries outstanding
other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable
thereunder);
(ix) Indebtedness represented by performance, completion,
guarantee, surety and similar bonds and assurances provided by or for
the Company or any Restricted Subsidiary in the ordinary course of
business;
(x) any Indebtedness incurred in connection with or given
in exchange for the renewal, extension, substitution, refunding,
defeasance, refinancing or replacement, in whole or in part (a
"refinancing"), of any Indebtedness incurred as permitted under the
first paragraph of this covenant or any Indebtedness described in any
of clauses (ii) or (iii) above, and this clause (x) ("Refinancing
Indebtedness"); provided, however, that (A) the principal amount of
such Refinancing Indebtedness shall not exceed the principal amount (or
accreted amount, if less, or in the case of a revolving credit facility
the maximum amount of the facility, if more) of the Indebtedness so
refinanced (plus accrued interest on the Indebtedness being refinanced
plus the premiums, if any, on the Indebtedness being refinanced and
reasonable expenses to be paid in connection therewith, which, with
respect to such premiums, shall not exceed the stated amount of any
premium or other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being
refinanced); (B) if the Weighted Average Life to Maturity of the
Indebtedness being refinanced is equal to or greater than the Weighted
Average Life to Maturity of the Notes, the Refinancing Indebtedness
shall have a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of the Indebtedness being
refinanced; (C) the final maturity of such Refinancing Indebtedness
shall not be earlier than the final maturity of the Indebtedness being
Refinanced; (D) with respect to Refinancing Indebtedness refinancing
Subordinated Indebtedness, shall be subordinated to the Notes at least
to the same extent and in the same manner as the Indebtedness being
refinanced; and (E) the obligor on such Refinancing Indebtedness shall
be the obligor on the Indebtedness being refinanced;
(xi) Indebtedness of the Company or any Restricted
Subsidiary (A) representing Capital Lease Obligations and any
amendments, modifications, renewals, refundings, replacements or
refinancings thereof and/or (B) in respect of Purchase Money
Obligations for property acquired, constructed or improved in the
ordinary course of business and any refinancings thereof, which taken
together in the aggregate principal amount do not exceed $5.0 million
at any one time outstanding;
(xii) (A) commodity agreements entered into in the ordinary
course of business to protect against fluctuations in the prices of raw
materials and not for speculative purposes and (B) foreign currency
forward exchange contracts entered into in the ordinary course of
business to protect against fluctuations in the relative values of
currencies that could adversely affect the Issuers' results of
operations and not for speculative purposes;
(xiii) Indebtedness incurred by the Company or any
Restricted Subsidiary constituting reimbursement obligations with
respect to letters of credit issued in the ordinary course of business
(A) in respect of (1) workers' compensation claims or self-insurance or
(2) other Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims or self-insurance or (B) for
regulatory, environmental or insurance purposes;
(xiv) Indebtedness incurred in respect of letters of credit
issued for the account of the Company or any Restricted Subsidiary in
an aggregate stated amount not to exceed $5.0 million
43
(or the foreign currency equivalent thereof being determined as of the
later of the date of the issuance thereof or any date on which the
stated amount of such letter of credit is increased);
(xv) Indebtedness of Foreign Restricted Subsidiaries of
the Company, in an aggregate principal amount at any time outstanding
not to exceed $2.5 million, incurred to finance losses or costs
relating to catastrophic occurrences or expenses occurring outside of
the ordinary course of business; provided, that, in the case of losses
or costs relating to catastrophic occurrences, the amount of any such
losses or costs shall be deemed to be reduced by all insurance and
condemnation proceeds on the thirtieth day following the receipt
thereof by the Company or any of its Restricted Subsidiaries in
connection with such catastrophic occurrence(s);
(xvi) Any guaranty by the Company and its Restricted
Subsidiaries of each other's Indebtedness; provided that such other
Indebtedness is permitted to be incurred under this Indenture;
(xvii) Indebtedness of the Company or any Restricted
Subsidiary in addition to that described in clauses (i) through (xvi)
above and clause (xviii) below, and any amendments, modifications,
renewals, refundings, replacements or refinancings of such
Indebtedness, so long as the aggregate principal amount of all such
Indebtedness incurred pursuant to this clause (xvii) does not exceed
$2.5 million at any one time outstanding; and
(xviii) Indebtedness arising from agreements of the Company
or a Restricted Subsidiary providing for the guarantee,
indemnification, adjustment of purchase price or similar obligations,
in each case, incurred in connection with the disposition of any
business, assets or Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business,
assets or Subsidiary for the purpose of financing such acquisition;
provided that the maximum aggregate liability in respect of such
Indebtedness shall at no time exceed the gross proceeds or value of the
consideration actually received by the Company and its Restricted
Subsidiaries in connection with such transaction.
For purposes of determining any particular amount of Indebtedness under
this covenant, any guaranty, Liens or obligations with respect to letters of
credit supporting Indebtedness otherwise included in the determination of such
particular amount shall not be included, except in the case of any such letter
of credit to the extent the stated amount thereof exceeds the principal amount
of such other Indebtedness so supported.
Indebtedness of any Person which is outstanding at the time such Person
becomes a Restricted Subsidiary or is merged with or into or consolidated with
the Company or a Restricted Subsidiary shall be deemed to have been incurred at
the time such Person becomes a Restricted Subsidiary or is merged with or into
or consolidated with the Company or a Restricted Subsidiary, and Indebtedness
which is assumed at the time of the acquisition of any asset shall be deemed to
have been incurred at the time of such acquisition..
SECTION 4.13. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause to
become effective any consensual encumbrance or consensual restriction on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its Capital
Stock or with respect to any other interest or participation in, or measured by,
its profits, or pay any Indebtedness owed to the Company or any other Restricted
Subsidiary, (ii) make loans or advances to, or issue any guaranty for the
benefit of, the Company or any other Restricted Subsidiary or (iii) transfer any
of its properties or assets to the
44
Company or any other Restricted Subsidiary, except for such encumbrances or
restrictions existing under or by reason of:
(1) the Credit Agreement as in effect on the Issue Date,
and any amendments, modifications, renewals,
refundings, replacements or refinancings thereof;
provided that such amendments, modifications,
renewals, refundings, replacements or refinancings
are no more restrictive in the aggregate with respect
to such dividend and other payment restrictions than
those contained in the Credit Agreement (or, if more
restrictive, than those contained in this Indenture)
immediately prior to any such amendment, restatement,
renewal, replacement or refinancing;
(2) applicable law;
(3) any instrument governing Indebtedness or Capital
Stock of an Acquired Person acquired by the Company
or any of its Restricted Subsidiaries as in effect at
the time of such acquisition (except to the extent
such Indebtedness was incurred in connection with or
in contemplation of such acquisition); provided,
however, that no such encumbrance or restriction is
applicable to any Person, or the properties or assets
of any Person, other than the Acquired Person;
(4) customary non-assignment, subletting or net worth
provisions in leases or other agreements entered into
the ordinary course of business;
(5) Purchase Money Obligations for property acquired in
the ordinary course of business that impose
restrictions only on the property so acquired;
(6) an agreement for the sale or disposition of assets or
the Capital Stock of a Restricted Subsidiary;
provided, however, that such restriction or
encumbrance is only applicable to such Restricted
Subsidiary or assets, as applicable, and such sale or
disposition otherwise is permitted by Section 4.16,
provided further, however, that such restriction or
encumbrance shall be effective only for a period from
the execution and delivery of such agreement through
a termination date not later than 270 days after such
execution and delivery;
(7) Refinancing Indebtedness permitted under this
Indenture; provide, however, that the restrictions
contained in the agreements governing such
Refinancing Indebtedness are no more restrictive in
the aggregate than those contained in the agreements
governing the Indebtedness being refinanced
immediately prior to such refinancing;
(8) this Indenture, the Notes, the Guarantees, the
Company Guarantee and the Collateral Agreements; and
(9) encumbrances and restrictions imposed by amendments,
restatements, renewals, replacements or refinancings
of the contracts, instruments or obligations referred
to in clauses (A) through (H) above; provided that
such encumbrances and restrictions are, in the good
faith judgment of the Company's Board of Directors,
no more restrictive, in any material respect, than
those contained in such contracts, instruments or
obligations immediately prior to such amendment,
restatement, renewal, replacement or refinancing.
45
SECTION 4.14. Limitation on Designation of Unrestricted Subsidiaries.
(a) The Company will not designate any Subsidiary of the Company (other than a
newly created Subsidiary in which no Investment has previously been made) as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") unless:
(i) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(ii) immediately after giving effect to such Designation,
the Company would be able to incur $1.00 of additional Indebtedness
(other than Permitted Indebtedness) under the covenant described under
Section 4.12; and
(iii) the Company would not be prohibited under this
Indenture from making an Investment at the time of Designation in an
amount (the "Designation Amount") equal to the greater of (x) the book
value of such Restricted Subsidiary on such date and (y) the Fair
Market Value of such Restricted Subsidiary on such date.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
4.10 for all purposes of this Indenture in an amount equal to the Designation
Amount.
(b) The Company will not designate an Unrestricted Subsidiary as a
Restricted Subsidiary (a "Redesignation"), unless:
(i) no Default shall have occurred and be continuing at
the time of and after giving effect to such Redesignation; and
(ii) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Redesignation shall
be deemed to have been incurred at such time and shall have been
permitted to be incurred for all purposes of this Indenture.
PMC, MRT Holdings, LLC and Prince MFG, LLC shall be deemed to be
redesignated as a Restricted Subsidiaries on January 1, 2004 if the PMC Sale
Transactions have not been consummated on or prior to such date.
An Unrestricted Subsidiary shall be deemed to be redesignated as a
Restricted Subsidiary at any time if (a) the Company or any other Restricted
Subsidiary (i) provides credit support for, or a guarantee of, any Indebtedness
of such Unrestricted Subsidiary (including any undertaking, agreement or
instrument evidencing such Indebtedness) or (ii) is directly or indirectly
liable for any Indebtedness of such Unrestricted Subsidiary or (b) a default
with respect to any Indebtedness of such Unrestricted Subsidiary (including any
right which the holders thereof may have to take enforcement action against it)
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 on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity, except in the case of clause (a)
to the extent permitted under the covenant described in Section 4.10.
If any Unrestricted Subsidiary is (or is deemed to have been)
redesignated as a Restricted Subsidiary, each Subsidiary of the Company that
owns all or any portion of the Capital Stock of such Unrestricted Subsidiary
shall be deemed to have been redesignated as a Restricted Subsidiary as well.
46
MRT Holdings, LLC and Prince MFG, LLC and its direct wholly-owned
subsidiary, PMC, will be the only Unrestricted Subsidiaries as of the Issue
Date. All Designations and Redesignations must be evidenced by Board Resolutions
delivered to the Trustee certifying compliance with the foregoing provisions.
Subsidiaries that are not designated by the Board of Directors as Restricted or
Unrestricted Subsidiaries will be deemed to be Restricted Subsidiaries. The
Designation of a Restricted Subsidiary as an Unrestricted Subsidiary shall be
deemed a Designation of all of the Subsidiaries of such Unrestricted Subsidiary
as Unrestricted Subsidiaries.
SECTION 4.15. Change of Control. (a) In the event of a Change of
Control of the U.S. Issuer, each Holder will have the right, unless the Issuers
have given a notice of redemption, subject to the terms and conditions of this
Indenture, to require the Issuers to offer to purchase all or any portion (equal
to $1,000 or an integral multiple thereof) of such Holder's Notes at a purchase
price in cash equal to 101% of the aggregate principal amount thereof, plus
accrued and unpaid interest to the date of purchase, in accordance with the
terms set forth below. Any such repurchase of the Notes will include both U.S.
Notes and Dutch Notes on a pro rata basis based on the aggregate principal
amount of the Notes outstanding at the time of redemption, unless a Change of
Control of the Dutch Issuer has occurred.
(b) In the event of a Change of Control of the Dutch Issuer, the
Dutch Issuer may, at its option at any time, redeem the Dutch Notes in whole,
and not in part, at the optional redemption price specified in Section 3.03 with
respect to the date such redemption is to be effected (such right, a "Change of
Control Redemption of Dutch Notes Right", and such redemption, a "Change of
Control Redemption of Dutch Notes"). If the Dutch Issuer has not delivered a
notice of redemption within 30 days following a Change of Control of the Dutch
Issuer, each Holder of a Dutch Note shall have the right to require that the
Dutch Issuer repurchase all or a portion of such Holder's Dutch Notes at a
purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest and Additional Amounts, if any, to the date of
repurchase (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant interest payment date), in
accordance with the next paragraph; provided that at any time prior to the
consummation of the offer to purchase required by the Dutch Issuer in accordance
with the next paragraph, the Dutch Issuer may deliver an optional redemption
notice to redeem all of the Dutch Notes in lieu of completing such offer to
purchase.
(c) On or before the 30th day following the occurrence of any
Change of Control, the Company will, and within 30 days following any Change of
Control of the Dutch Issuer, the Dutch Issuer will, mail an offer (each, a
"Change of Control Offer") to each Holder at such Holder's registered address a
notice by first-class mail stating: (i) that a Change of Control has occurred
and that such Holder has the right to require us or the Dutch Issuer, as the
case may be, to purchase all or a portion (equal to $1,000 or an integral
multiple thereof) of such Holder's Notes or Dutch Notes, as the case may be, at
a purchase price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest to the date of purchase (the "Change
of Control Purchase Date"), which shall be a Business Day, specified in such
notice, that is not earlier than 30 days or later than 60 days from the date
such notice is mailed, (ii) the amount of accrued and unpaid interest as of the
Change of Control Purchase Date, (iii) that any Note not tendered will continue
to accrue interest, (iv) that, unless the Company or the Dutch Issuer, as the
case may be, default in the payment of the purchase price for the Notes payable
pursuant to the Change of Control Offer, any Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest on the Change of
Control Purchase Date, (v) the procedures, consistent with this Indenture, to be
followed by a Holder in order to accept a Change of Control Offer or to withdraw
such acceptance, and (vi) such other information as may be required by this
Indenture and applicable laws and regulations.
(d) On the Change of Control Purchase Date, the Company or the
Dutch Issuer, as the case may be, will (i) accept for payment all Notes or
portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent the aggregate purchase price of all Notes or portions
47
thereof accepted for payment, and (iii) deliver or cause to be delivered to the
Trustee all Notes tendered pursuant to the Change of Control Offer. The Paying
Agent shall promptly mail to each Holder whose Notes or portions thereof were
accepted for payment an amount equal to the purchase price for such Notes or
portion thereof plus accrued and unpaid interest thereon, and the Trustee shall
promptly authenticate and mail to each Holder whose Notes or portions thereof
were accepted for payment in part a Note equal in principal amount to any
unpurchased portion of the Notes, and any Note not accepted for payment in whole
or in part shall be promptly returned to the Holder of such Note. On and after a
Change of Control Purchase Date, interest will cease to accrue on the Notes or
portions thereof accepted for payment, unless the Company or the Dutch Issuer,
as the case may be, defaults in the payment of the purchase price therefor. The
Issuers will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Purchase Date.
(e) The Issuers will comply with the applicable tender offer
rules, including the requirements of Section 14(e) and Rule 14e-1 under the
Exchange Act, and all other applicable securities laws and regulations in
connection with any Change of Control Offer and will be deemed not to be in
violation of any of the covenants under this Indenture to the extent such
compliance is in conflict with such covenants.
SECTION 4.16. Limitation on Asset Sales. (a) The Company will not, and
will not permit any Restricted Subsidiary to, make any Asset Sale unless: (i)
the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value (as evidenced by a resolution of the Board of Directors set forth in an
Officers' Certificate delivered to the Trustee) of the assets or other property
sold or disposed of in the Asset Sale; and (ii) at least 75% of such
consideration consists of either cash or Cash Equivalents (other than in the
case of an Asset Sale consummated prior to the 180th day following the Issue
Date of all or substantially all of the Capital Stock or assets of Wychem
Limited, an English company indirectly wholly-owned by the Company); provided,
however, that for purposes of this covenant, "cash" shall include (x) the amount
of any Indebtedness (other than any Indebtedness that is by its terms
subordinated to the Notes and/or the Guarantees and/or the Company Guarantee),
accounts payable and accrued expenses of the Company or such Restricted
Subsidiary that is assumed by the transferee of any such assets or other
property in such Asset Sale (and excluding any liabilities that are incurred in
connection with or in anticipation of such Asset Sale), but only to the extent
that such assumption of Indebtedness is effected on a basis such that there is
no further recourse to the Company or any of the Restricted Subsidiaries with
respect to such liabilities (other than customary indemnifications to the
transferee and its Affiliates) and (y) any notes, obligations or securities
received by the Company or such Restricted Subsidiary from such transferee that
are due and payable within 60 days by the Company or such Restricted Subsidiary
into cash (to the extent of the cash received).
(b) Within 270 days after receipt of Net Proceeds from any Asset
Sale, the Company may elect to apply the Net Proceeds from such Asset Sale: (i)
to repay Indebtedness under the Credit Agreement and permanently reduce the
commitments thereunder (provided, however, that no such Net Proceeds shall be
used to repay such Indebtedness to the extent such Net Proceeds arose from an
Asset Sale of any Foreign Collateral), (ii) in the case where the property or
asset that was the subject of such Asset Sale does not constitute Collateral, to
repay Indebtedness secured by a Lien of the type described in clause (i), (iii),
(vi), (viii), (xiv) or (xv) of the definition of the term "Permitted Lien"
(provided, however, that no such Net Proceeds shall be used to repay
Indebtedness of any Foreign Restricted Subsidiary except to the extent that such
Net Proceeds arose from an Asset Sale of the assets of a Foreign Restricted
Subsidiary), (iii) in the case where the property or asset that was the subject
of such Asset Sale is the property or asset of a Foreign Restricted Subsidiary
that does not constitute Foreign Collateral, to repay Indebtedness of any
Foreign Restricted Subsidiary or (iv) a combination of the foregoing clauses
(i), (ii) and (iii); and/or make an investment in, or acquire assets and
properties that will be used in, the business of the Company or a Restricted
Subsidiary, existing on the Issue Date or in a Related Business; provided,
48
however, that no such investments in or acquisitions of assets or properties
that are to be used in the business of any Foreign Restricted Subsidiary or any
Related Business thereof may be made using any such Net Proceeds except to the
extent that such Net Proceeds arose from an Asset Sale of the assets of a
Foreign Restricted Subsidiary. Pending the final application of any such Net
Proceeds, the Company or any Restricted Subsidiary may temporarily reduce
Indebtedness of the Company under the Credit Agreement or temporarily invest
such Net Proceeds in cash or Cash Equivalents. Any Net Proceeds from an Asset
Sale not applied or invested as provided in the first sentence of this paragraph
within 270 days of such Asset Sale will be deemed to constitute "Excess
Proceeds."
(c) Each date that the aggregate amount of Excess Proceeds in
respect of which an Asset Sale Offer (as defined below) has not been made
exceeds $5.0 million shall be deemed an "Asset Sale Offer Trigger Date." As soon
as practicable, but in no event later than 20 Business Days after each Asset
Sale Offer Trigger Date, the Company shall commence an offer (an "Asset Sale
Offer") to purchase the maximum principal amount of Notes that may be purchased
out of the Excess Proceeds. Any Notes to be purchased pursuant to an Asset Sale
Offer shall be purchased pro rata based on the aggregate principal amount of
Notes outstanding, and all Notes shall be purchased at an offer price in cash in
an amount equal to 100% of the principal amount thereof, plus accrued and unpaid
interest to the date of purchase. To the extent that any Excess Proceeds remain
after completion of an Asset Sale Offer, the Company may use the remaining
amount for general corporate purposes otherwise permitted by this Indenture.
Upon the consummation of any Asset Sale Offer, the amount of Excess Proceeds
shall be deemed to be reset to zero.
(d) Notice of an Asset Sale Offer shall be mailed by the Company
not later than the 20th Business Day after the related Asset Sale Offer Trigger
Date to each Holder at such Holder's registered address, stating: (i) that an
Asset Sale Offer Trigger Date has occurred and that the Company is offering to
purchase the maximum principal amount of Notes that may be purchased out of the
Excess Proceeds (to the extent provided in the immediately preceding paragraph),
at an offer price in cash in an amount equal to 100% of the principal amount
thereof, plus accrued and unpaid interest to the date of the purchase (the
"Asset Sale Offer Purchase Date"), which shall be a Business Day, specified in
such notice, that is not earlier than 30 days or later than 60 days from the
date such notice is mailed; (ii) the amount of accrued and unpaid interest as of
the Asset Sale Offer Purchase Date; (iii) that any Note not tendered will
continue to accrue interest; (iv) that, unless the Company defaults in the
payment of the purchase price for the Notes payable pursuant to the Asset Sale
Offer, any Notes accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Asset Sale Offer Purchase Date; (v) the
procedures, consistent with this Indenture, to be followed by a Holder in order
to accept an Asset Sale Offer or to withdraw such acceptance; and (vi) such
other information as may be required by this Indenture and applicable laws and
regulations.
(e) On the Asset Sale Offer Purchase Date, the Company will (i)
accept for payment the maximum principal amount of Notes or portions thereof
tendered pursuant to the Asset Sale Offer that can be purchased out of Excess
Proceeds from such Asset Sale that are to be applied to an Asset Sale Offer,
(ii) deposit with the Paying Agent the aggregate purchase price of all Notes or
portions thereof accepted for payment, and (iii) deliver or cause to be
delivered to the Trustee all Notes tendered pursuant to the Asset Sale Offer. If
less than all Notes tendered pursuant to the Asset Sale Offer are accepted for
payment by the Company for any reason consistent with this Indenture, selection
of the Notes to be purchased by the Company shall be in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes are listed or, if the Notes are not so listed, on a pro rata basis or by
lot; provided, however, that Notes accepted for payment in part shall only be
purchased in integral multiples of $1,000. The Paying Agent shall promptly mail
to each Holder or portions thereof accepted for payment an amount equal to the
purchase price for such Notes plus accrued and unpaid interest thereon, and the
Trustee shall promptly authenticate and mail to such Holder accepted for
49
payment in part a Note equal in principal amount to any unpurchased portion of
the Notes, and any Note not accepted for payment in whole or in part shall be
promptly returned to the Holder of such Note. On and after an Asset Sale Offer
Purchase Date, interest will cease to accrue on the Notes or portions thereof
accepted for payment, unless the Company defaults in the payment of the purchase
price therefor. The Company will publicly announce the results of the Asset Sale
Offer on or as soon as practicable after the Asset Sale Offer Purchase Date. Any
repurchase of Notes pursuant to an Asset Sale Offer shall include both U.S.
Notes and Dutch Notes on a pro rata basis based upon the aggregate principal
amount of the Notes outstanding at the time of such repurchase, unless a Change
of Control of the Dutch Issuer has occurred.
(f) This Section 4.16 shall not apply to a transaction consummated
in compliance with Article Five.
(g) The Company shall comply with the applicable tender offer
rules, including the requirements of Section 14(e) and Rule 14e-1 under the
Exchange Act, and all other applicable securities laws and regulations in
connection with any Asset Sale Offer and will be deemed not to be in violation
of any of the covenants under this Indenture to the extent such compliance is in
conflict with such covenants.
SECTION 4.17. Impairment of Security Interest. No Issuer nor any
Guarantor may take or knowingly omit to take any action which would materially
impair the Liens in favor of the Collateral Agent, on behalf of itself, the
Trustee and the Holders, with respect to any material portion of the Collateral
securing the Notes or any Guarantee either the U.S. Notes, the Domestic
Guarantees and the Company Guarantee or the Dutch Notes and the Foreign
Guarantees. No Issuer nor any Guarantor may grant to any Person (other than the
Collateral Agent), or permit any Person (other than the Collateral Agent) to
retain any interest whatsoever in the Collateral other than Permitted Liens or
as otherwise permitted by this Indenture. No Issuer nor any Guarantor may enter
into any agreement that 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 as permitted by this
Indenture, the Notes and the Collateral Agreements, subject to the terms of the
Intercreditor Agreement (as it relates to the Domestic Collateral). Each Issuer
and each Guarantor will, at its sole cost and expense, execute and deliver all
such agreements and instruments as the Collateral Agent or the Trustee shall
reasonably request to more fully or accurately describe the property intended to
be Collateral or the obligations intended to be secured by the Collateral
Agreements. Each Issuer and each Guarantor will, at its sole cost and expense,
file any such notice filings or other agreements or instruments as may be
required under applicable law to perfect the Liens created by the Collateral
Agreements, subject to Permitted Liens.
SECTION 4.18. Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, create, incur,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired,
or any income or profits therefrom, or assign or convey any right to receive
income therefrom, in each case, other than Permitted Liens.
SECTION 4.19. Business Activities. The Company will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business other than
such business as conducted by it on the Issue Date and any Related Business. For
so long as any of MRT Holdings, LLC, Prince MFG, LLC or PMC shall be an
Unrestricted Subsidiary of the Company or the PMC Sale Transactions shall not
have been consummated, no such entity shall engage in any activities other than
those currently conducted by such entity or those necessary or incidental to
consummating the PMC Sale Transactions; provided, however, that notwithstanding
the foregoing, no such entity shall incur any Indebtedness, make any
Investments, or pay the obligations of any other person or entity, in an
aggregate amount exceeding $25,000 or dispose of any of its assets other than in
the ordinary course of business, if such entity is an Unrestricted Subsidiary of
the Company other than as necessary or incidental to consummate the PMC Sale
Transactions.
50
SECTION 4.20. Landlord, Bailee and Consignee Waivers. (a) Each of the
Company, the Dutch Issuer, each Domestic Restricted Subsidiary of the Company
and each Restricted Subsidiary of the Dutch Issuer that is a lessee of, or
becomes a lessee of, real property (whether used for manufacturing purposes or
otherwise) on or in which it will maintain, store, hold or locate all or any of
its assets having an aggregate fair market value of at least $50,000, shall use
its commercially reasonable best efforts (which shall not require the
expenditure of cash or the making of any material concessions under any relevant
lease that was in effect on the Issue Date or if such (i) Domestic Restricted
Subsidiary of the Company was not a Domestic Restricted Subsidiary of the
Company on the Issue Date, the date such Domestic Restricted Subsidiary became a
Domestic Restricted Subsidiary of the Company or (ii) Restricted Subsidiary of
the Dutch Issuer was not a Restricted Subsidiary of the Dutch Issuer on the
Issue Date, the date such Restricted Subsidiary became a Restricted Subsidiary
of the Dutch Issuer) to deliver to the Collateral Agent a landlord waiver,
substantially in the form of Exhibit K to this Indenture, executed by the lessor
of such real property; provided that in the case where such lease is a lease in
existence on the Issue Date or the lessee thereof is a (x) Domestic Restricted
Subsidiary of the Company that was not a Domestic Restricted Subsidiary of the
Company on the Issue Date or (y) Restricted Subsidiary of the Dutch Issuer that
was not a Restricted Subsidiary of the Dutch Issuer on the Issue Date, the
Company or its Domestic Restricted Subsidiary or the Dutch Issuer or its
Restricted Subsidiary that is the lessee thereunder shall have 60 days from the
Issue Date (or from the date the lessee thereof becomes a Domestic Restricted
Subsidiary of the Company or a Restricted Subsidiary of the Dutch Issuer) to
satisfy such requirement and shall be relieved of such obligation with respect
to any landlord waiver to the extent such lessor has refused to deliver such a
waiver following such Person's use of such commercially reasonable efforts.
(b) Each of the Company, the Dutch Issuer, each Domestic
Restricted Subsidiary of the Company and each Restricted Subsidiary of the Dutch
Issuer that provides as xxxxxx any of its assets to a bailee, having an
aggregate fair market value of at least $50,000, shall use its commercially
reasonable best efforts (which shall not require the expenditure of cash or the
making of any material concessions under any relevant lease that was in effect
on the Issue Date or if such (i) Domestic Restricted Subsidiary of the Company
was not a Domestic Restricted Subsidiary of the Company on the Issue Date, the
date such Domestic Restricted Subsidiary became a Domestic Restricted Subsidiary
of the Company or (ii) Restricted Subsidiary of the Dutch Issuer was not a
Restricted Subsidiary of the Dutch Issuer on the Issue Date, the date such
Restricted Subsidiary became a Restricted Subsidiary of the Dutch Issuer) to
deliver to the Collateral Agent a bailee waiver, substantially in the form of
Exhibit L to this Indenture, executed by the bailee of such assets; provided
that in the case where such bailment is a bailment in existence on the Issue
Date or the xxxxxx thereof is a (x) Domestic Restricted Subsidiary of the
Company that was not a Domestic Restricted Subsidiary of the Company on the
Issue Date or (y) Restricted Subsidiary of the Dutch Issuer that was not a
Restricted Subsidiary of the Dutch Issuer on the Issue Date, the Company or its
Domestic Restricted Subsidiary or the Dutch Issuer or its Restricted Subsidiary
that is the xxxxxx thereunder shall have 60 days from the Issue Date (or from
the date the xxxxxx thereof becomes a Domestic Restricted Subsidiary of the
Company or a Restricted Subsidiary of the Dutch Issuer) to satisfy such
requirement and shall be relieved of such obligation with respect to any bailee
waiver to the extent such bailee has refused to deliver such a waiver following
such Person's use of such commercially reasonable efforts.
(c) Each of the Company, the Dutch Issuer, each Domestic
Restricted Subsidiary of the Company and each Restricted Subsidiary of the Dutch
Issuer that provides as consignor any of its assets to a consignee having an
aggregate fair market value of at least $50,000, shall use its commercially
reasonable best efforts (which shall not require the expenditure of cash or the
making of any material concessions under any relevant lease that was in effect
on the Issue Date or if such (i) Domestic Restricted Subsidiary of the Company
was not a Domestic Restricted Subsidiary of the Company on the Issue Date, the
date such Domestic Restricted Subsidiary became a Domestic Restricted Subsidiary
of the
51
Company or (ii) Restricted Subsidiary of the Dutch Issuer was not a Restricted
Subsidiary of the Dutch Issuer on the Issue Date, the date such Restricted
Subsidiary became a Restricted Subsidiary of the Dutch Issuer) to deliver to the
Collateral Agent a consignee waiver, substantially in the form of Exhibit M to
this Indenture, executed by the consignee of such assets; provided that in the
case where such consignment is a consignment in existence on the Issue Date or
the consignor thereof is a (x) Domestic Restricted Subsidiary of the Company
that was not a Domestic Restricted Subsidiary of the Company on the Issue Date
or (y) Restricted Subsidiary of the Dutch Issuer that was not a Restricted
Subsidiary of the Dutch Issuer on the Issue Date, the Company or its Domestic
Restricted Subsidiary or the Dutch Issuer or its Restricted Subsidiary that is
the consignor thereunder shall have 60 days from the Issue Date (or from the
date the consignor thereof becomes a Domestic Restricted Subsidiary of the
Company or a Restricted Subsidiary of the Dutch Issuer) to satisfy such
requirement and shall be relieved of such obligation with respect to any
consignee waiver to the extent such consignee has refused to deliver such a
waiver following such Person's use of such commercially reasonable efforts.
SECTION 4.21. Real Estate Mortgages and Recordings. With respect to any
real property (individually and collectively, the "Premises") that (a) is owned
as of the Issue Date by the Dutch Issuer or any of its Restricted Subsidiaries
or (b) (i) is acquired by Dutch Issuer or any of its Restricted Subsidiaries
after the Issue Date and (ii) has a purchase price or a Fair Market Value, of at
least $250,000 (other than properties purchased subject to Acquired Indebtedness
or Purchase Money Indebtedness), the Dutch Issuer or such Restricted Subsidiary,
as the case may be, shall, at its sole cost and expense:
(1) take all such actions as the Collateral Agent deems
necessary or desirable to cause the Collateral Agent
to have a valid first priority perfected Lien in such
Premises free and clear of all defects and
encumbrances (other than Permitted Liens), including,
without limitation, (a) duly executing and delivering
a Foreign Collateral Agreement, (b) recording,
registering or filing such Foreign Collateral
Agreement with the necessary offices or authorities
to result in such Lien being a valid, perfected first
priority Lien against such Premises under the laws of
the jurisdiction in which such Premises is located
and (c) paying all recordation taxes, fees and
expenses required in connection with such
recordation, registration or filing; and
(2) deliver to the Collateral Agent, with respect to such
Premises, a copy of such Foreign Collateral Agreement
and evidence of such recordation, registration or
filing, as the case may be, local counsel opinions
and such other documents, instruments, certificates
and agreements as the Collateral Agent and its
counsel shall, consistent with the laws of the
jurisdiction in which such Premises is located,
reasonably request or as may be required under this
Indenture;
provided that the Dutch Issuer or such Restricted Subsidiary, as the case may
be, shall have a period of 90 days from (x) the date of the Issue Date to
satisfy the foregoing requirements with respect to any such Premises that is
owned by the Dutch Issuer or such Restricted Subsidiary, as the case may be, as
of the Issue Date and (y) the date such interest was acquired by the Dutch
Issuer or such Restricted Subsidiary, as the case may be, to satisfy the
foregoing requirements with respect to any such Premises that was acquired after
the Issue Date.
SECTION 4.22. Future Guarantors. (a) The Company and each Domestic
Guarantor shall cause each Domestic Restricted Subsidiary of the Company which,
after the date of this Indenture (if not then a Guarantor), becomes a Domestic
Restricted Subsidiary (including, without limitation, as the result of the
redesignation of an Unrestricted Subsidiary that is a Domestic Subsidiary as a
Restricted Subsidiary) to:
52
(i) execute and deliver to the Trustee a supplemental
indenture pursuant to which such Domestic Restricted Subsidiary shall
unconditionally guarantee on a senior secured basis all of the
Company's obligations under the U.S. Notes and this Indenture on the
terms set forth in this Indenture;
(ii) (a) execute and deliver to the Collateral Agent and
the Trustee such amendments or supplements to the Domestic Collateral
Agreements as may be necessary or as the Collateral Agent deems
reasonably desirable in order to grant to Collateral Agent, for the
benefit of itself, the Holders and the Trustee, a perfected security
interest in the Capital Stock of such new Domestic Restricted
Subsidiary and the debt securities of such new Domestic Restricted
Subsidiary, subject to Permitted Liens, which are owned by the Company
or any Domestic Restricted Subsidiary and required to be pledged
pursuant to the Domestic Collateral Agreements, and (b) deliver to
Collateral Agent the certificates representing such Capital Stock and
debt securities, together with (i) in the case of such Capital Stock,
undated stock powers or instruments of transfer, as applicable,
endorsed in blank, and (ii) in the case of such debt securities,
endorsed in blank, in each case executed and delivered by a Officer of
the Company or such Domestic Restricted Subsidiary, as the case may be;
(iii) cause such new Domestic Restricted Subsidiary to take
such actions as may be necessary or as the Collateral Agent deems
reasonably desirable to grant to the Collateral Agent for the benefit
of itself, the Holders and the Trustee a perfected security interest in
substantially all of the assets of such new Domestic Restricted
Subsidiary (excluding real property and interests therein), subject to
Permitted Liens, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the
Domestic Collateral Agreements or by law or as may be reasonably
requested by the Collateral Agent;
(iv) take such further action and execute and deliver such
other documents specified in this Indenture or otherwise reasonably
requested by the Trustee or the Collateral Agent to effectuate the
foregoing; and
(v) deliver to the Trustee an Opinion of Counsel relating
to the foregoing actions and the perfection of such security interests
so granted, in each case, to the extent required under the Trust
Indenture Act.
(b) The Dutch Issuer and each Foreign Guarantor shall cause each
Restricted Subsidiary of the Dutch Issuer which, after the date of the Indenture
(if not then a Foreign Guarantor), becomes a Restricted Subsidiary of the Dutch
Issuer (including, without limitation, as the result of the redesignation of an
Unrestricted Subsidiary that is a Subsidiary of the Dutch Issuer as a Restricted
Subsidiary thereof) to:
(i) execute and deliver to the Trustee a supplemental
indenture pursuant to which such Restricted Subsidiary of the Dutch
Issuer shall unconditionally guarantee on a senior secured basis all of
the Dutch Issuer's obligations under the Dutch Notes and this Indenture
on the terms set forth herein;
(ii) execute and deliver to the Collateral Agent and the
Trustee such Foreign Collateral Agreements or amendments or supplements
thereto and take all such other actions including, without limitation,
recording, registering or filing such amendments, supplements or any
other documents or instruments and paying all such taxes, fees and
expenses required in connection with such recordation, registration or
filing, in each case, as may be necessary or as the Collateral Agent
deems reasonably desirable in order to grant to the Collateral Agent,
for the
53
benefit of itself, the Holders and the Trustee, a Lien in 100% of the
Capital Stock of such new Restricted Subsidiary of the Dutch Issuer,
which is owned by the Dutch Issuer or any Restricted Subsidiary of the
Dutch Issuer, and provide the Collateral Agent with a valid first
priority perfected Lien (subject to Permitted Liens) in all such
Capital Stock for the benefit of itself, the Holders and the Trustee;
(iii) cause such new Restricted Subsidiary of the Dutch
Issuer to (x) execute and deliver to the Collateral Agent and the
Trustee such Foreign Collateral Agreements or amendments or supplements
thereto and take all such other actions including, without limitation,
recording, registering or filing such amendments, supplements or any
other documents or instruments and paying all such taxes, fees and
expenses required in connection with such recordation, registration or
filing, in each case, as may be necessary or as the Collateral Agent
deems reasonably desirable in order to grant to the Collateral Agent,
for the benefit of itself, the Holders and the Trustee, a Lien in all
of the accounts receivable, inventory (to the extent permitted by
applicable law) and Capital Stock of each direct Subsidiary of such new
Restricted Subsidiary of the Dutch Issuer that is then owned or
thereafter acquired by such new Restricted Subsidiary of the Dutch
Issuer, and provide the Collateral Agent with a valid first priority
perfected Lien (subject to Permitted Liens) in all such accounts
receivable, inventory (to the extent permitted by applicable law) and
Capital Stock for the benefit of itself, the Holders and the Trustee
and (y) to the extent such new Restricted Subsidiary of the Dutch
Issuer owns any real property on the date it became a new Restricted
Subsidiary of the Dutch Issuer, comply with the requirements of the set
forth in this Section 4.22 as if such new Restricted Subsidiary of the
Dutch Issuer had acquired such real property on such date;
(iv) take such further action and execute and deliver such
other documents specified in this Indenture or otherwise reasonably
requested by the Trustee or the Collateral Agent to effectuate the
foregoing; and
(v) deliver to the Trustee an opinion of counsel relating
to the foregoing actions and the perfection of such security interests
so granted, in each case, to the extent required under the Trust
Indenture Act.
SECTION 4.23. Payments for Consent. Neither Issuer will, nor will
either Issuer permit any of its Subsidiaries to, directly or indirectly, pay or
cause to be paid any consideration to or for the benefit of any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture, the Notes, the Registration Rights Agreement, the
Collateral Agreements or the Intercreditor Agreement unless such consideration
is offered to be paid or is paid to all Holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
SECTION 4.24. Excess Cash Flow Offer. Within 120 days after the end of
each fiscal year of the Company (beginning with the fiscal year ending June 30,
2005), the Issuers may, if excess cash flow for such fiscal year was at least
$250,000, be required to make an offer (an "Excess Cash Flow Offer") to all
Holders to purchase the maximum principal amount of Notes that may be purchased
with 50% of Excess Cash Flow for such fiscal year (the "Excess Cash Flow Offer
Amount"), at a purchase price in cash equal to 102.5% of the principal amount of
the Notes to be purchased, plus accrued and unpaid interest to the date of such
purchase. Each Excess Cash Flow Offer shall remain open for a period of 30 days,
unless a longer period is required by law. If the Excess Cash Flow Offer Amount
exceeds the aggregate amount of Notes tendered pursuant to any Excess Cash Flow
Offer, the Issuers shall make an offer at the end of such period to all holders
of Existing Notes, to purchase the maximum principal amount of Existing Notes
that may be purchased with such excess, at a purchase price in cash equal to
54
100% of the principal amount of the Existing Notes to be purchased, plus accrued
and unpaid interest thereon to the date of such purchase. If any excess remains
following such offer in respect of the Existing Notes, the Issuers may, subject
to the other provisions of this Indenture, use any such remaining excess for
general corporate purposes. Upon receiving notice of the Excess Cash Flow Offer,
Holders may elect to tender their Notes, in whole or in part, in integral
multiples of $1,000 principal amount in exchange for cash. Any such repurchase
of the Notes shall include both U.S. Notes and Dutch Notes on a pro rata basis
based upon the aggregate principal amount of the Notes outstanding at the time
of such repurchase, unless a change of control of the Dutch Issuer has occurred.
Any Excess Cash Flow Offer Amount may be reduced by prior open market purchases
of Units or Notes during such fiscal year.
Within 30 days prior to the required purchase date, the Issuers shall
mail an offer to each Holder, with a copy to the Trustee, which offer will
govern the terms of the Excess Cash Flow Offer. Such offer will state, among
other things the purchase date and price.
The Issuers will comply with the applicable tender offer rules,
including the requirements of Section 14(e) and Rule 14e-1 under the Exchange
Act, and all other applicable securities laws and regulations in connection with
any Excess Cash Flow Offer and will be deemed not to be in violation of any of
the covenants under this Indenture to the extent such compliance is in conflict
with such covenants. However, each Excess Cash Flow Offer is likely to be
subject to limitations in the Credit Agreement.
SECTION 4.25. Limitation on Issuances and Sales of Capital Stock of
Subsidiaries. The Company will not permit or cause any of its Restricted
Subsidiaries to issue or sell any Capital Stock except:
(i) to the Company or a Wholly-Owned Restricted
Subsidiary of the Company and so long as concurrently with the issuance
thereof all steps necessary for the Collateral Agent to have a
perfected security interest therein, subject to the Permitted Liens,
shall have been taken;
(ii) issuances of director's qualifying shares or sales to
foreign nationals of shares of Capital Stock of Foreign Restricted
Subsidiaries to the extent required by applicable law;
(iii) if, immediately after giving effect to such issuance
or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary and any Investment in such Person remaining after
giving effect to such issuance or sale would have been permitted to be
made under Section 4.10 if made on the date of such issuance or sale;
or
(iv) sales of (A) all of the Capital Stock of a Restricted
Subsidiary of the Company or (B) Common Stock of a Foreign Subsidiary,
in each case in compliance with the provisions of Section 4.16.
SECTION 4.26. Noteholder Representative. From and after the Issue Date
until the date on which all principal and interest on all of the outstanding
Units (and the underlying Notes) have been paid in full as provided in this
Indenture, the Company will take such action as shall be necessary in accordance
with applicable law and its certificate of incorporation and by-laws so that the
Board of Directors of the Company may include one Noteholder Representative.
The Noteholder Representative shall be designated mutually by Jefferies
& Company, Inc. ("Jefferies") and the Company. If Jefferies and the Company
cannot agree on a mutually acceptable candidate within 60 days after the Issue
Date (or the date of any subsequent vacancy), each of Jefferies and the Company
shall nominate a candidate meeting the criteria below and the Company shall mail
a ballot to the Holders within 90 days of the Issue Date (or the date of any
subsequent vacancy). The ballot
55
may include biographical and other information with respect to each candidate
under Regulation 14A of the Securities Exchange Act of 1934, as amended. The
Noteholder Representative will be selected by Holders of a majority in aggregate
principal amount of the Notes who complete and submit to the Company a ballot.
Each candidate submitted by Jefferies and the Company for election as
the Noteholder Representative shall be a person who is not an executive officer
or director of (i) a significant supplier of the Company or any Subsidiary or
Affiliate thereof or (ii) any competitor of the Company or any Subsidiary or
Affiliate thereof, unless otherwise agreed by the Company.
If a Noteholder Representative resigns, dies or becomes incapacitated,
or such position is otherwise vacant, no action requiring the affirmative vote
of the Noteholder Representative shall be taken until the earlier of (i) the
expiration of 45 days after the mailing of such ballot and (ii) the designation
of a successor Noteholder Representative by the Holders and approval of such
action by the successor Noteholder Representative.
The Noteholder Representative shall be a member of the Compensation
Committee and, except as provided above, all decisions of the Compensation
Committee shall require the consent of the Noteholder Representative.
SECTION 4.27. Additional Amounts. All payments by the Dutch Issuer and
any Guarantor (and the U.S. Issuer with respect to the Company Guarantee) in
respect of the Dutch Notes shall be made without withholding or deduction for or
on account of any present or future taxes, duties, assessments or other
governmental charges of whatsoever nature, including penalties, interest and any
other liabilities related thereto ("Taxes"), imposed or levied by or on behalf
of The Netherlands, or any other jurisdiction in which any Guarantor (or the
U.S. Issuer with respect to the Company Guarantee) in respect of the Dutch Notes
is organized or resident for tax purposes of any such jurisdiction, as the case
may be, or, in each case, any other relevant jurisdiction or any political
subdivision or authority of or in any such jurisdiction having power to tax (for
purposes of this Section 4.27, the "Relevant Jurisdiction"), unless the Dutch
Issuer or any such Guarantor (or the U.S. Issuer with respect to the Company
Guarantee) is compelled by law to deduct or withhold such taxes, duties,
assessments or other governmental charges. In such event, the Dutch Issuer or
such Guarantor (or the U.S. Issuer with respect to the Company Guarantee) shall
pay such additional amounts ("Additional Amounts") as may be necessary to ensure
that the net amounts received by the holders of the Dutch Notes after such
withholding or deduction shall equal the amounts of such payments that would
have been receivable in respect of the Dutch Notes in the absence of such
withholding or deduction, except that no such Additional Amounts shall be
payable in respect of any Dutch Note (i) presented for payment of principal more
than 60 days after the later of (x) the date on which such payment first became
due and (y) if the full amount payable has not been received in New York City by
the Trustee on or prior to such due date, the date on which, the full amount
having been so received, notice to that effect shall have been given to the
holders by the Trustee, except to the extent that the holders would have been
entitled to such Additional Amounts on presenting such Dutch Note for payment on
the last day of the applicable 60 day period, (ii) if any tax, assessment or
other governmental charge is imposed or withheld by reason of the failure to
comply by the holder or, if different, the beneficial owner of the interest
payable on the Dutch Note with a timely request of the Dutch Issuer addressed to
such holder or beneficial owner to complete and return an official document
concerning the nationality, residence, identity or connection with the
Netherlands or any Relevant Jurisdiction of such holder or beneficial owner
which is required or imposed by a statute, treaty, regulation or administrative
practice of the Netherlands or any Relevant Jurisdiction as a precondition to
exemption from all or part of such tax, assessment or governmental charge and
provided that the request to so comply is made in writing and delivered to such
holder or beneficial owner, as applicable, not later than 60 days prior to the
date by which the delivery of such official document is required, (iii) held by
or
56
on behalf of a holder who is liable for Taxes giving rise to such Additional
Amounts in respect of such Dutch Note by reason of having some connection with
the Netherlands or any Relevant Jurisdiction other than the mere purchase,
holding or disposition of any Dutch Note, or the receipt of principal or
interest in respect thereof, including, without limitation, such holder being or
having been a citizen or resident thereof or being or having been present or
engaged in a trade or business therein or having had a permanent establishment
therein, (iv) where such withholding or deduction is imposed on a payment to an
individual who is resident for tax purposes in a jurisdiction which is a member
state of the European Union (whether such payment is made through a paying agent
or otherwise) and is required to be made pursuant to European Union Directive
2003/48/EC of 3 June 2003 on the taxation of savings or any law implementing or
complying with, or introduced in order to conform to such Directive and (v) any
combination of clause (i), (ii), (iii) or (iv) above; nor shall Additional
Amounts be paid with respect to any payment of the principal of, or any interest
on, any Dutch Note to any holder who is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent that a beneficiary or
settlor or beneficial owner would not have been entitled to any Additional
Amounts had such beneficiary or settlor or beneficial owner been the holder. The
Dutch Issuer or such Guarantor (or the U.S. Issuer with respect to the Company
Guarantee) will also (a) make such withholding or deduction compelled by
applicable law and (b) remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law. The Dutch Issuer or such
Guarantor (or the U.S. Issuer with respect to the Company Guarantee) will
furnish copies of such receipts evidencing the payment of any Taxes so deducted
or withheld in such form as provided in the normal course by the taxing
authority imposing such Taxes and as is reasonably available to the Dutch Issuer
or such Guarantor (or the U.S. Issuer with respect to the Company Guarantee) to
the Trustee within 60 days after the date of receipt of such evidence. The
Trustee will make such evidence available to the holders of Dutch Notes upon
request.
All references in this Indenture and in the Dutch Notes to the
principal of or interest or other payments on, or in respect of, a Dutch Note
shall be deemed to include, without duplication, any Additional Amounts payable
in connection therewith.
The Dutch Issuer shall pay any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise in any jurisdiction from the execution, delivery or
registration of the Dutch Notes or any other document or instrument referred to
in the Indenture or Dutch Notes.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets. (a) The Company
shall not, in any single transaction or series of related transactions,
consolidate or merge with or into (whether or not the Company is the Surviving
Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets (determined on a consolidated
basis for the Company and its Restricted Subsidiaries) in one or more related
transactions to, another Person, and the Company will not permit any Restricted
Subsidiary to enter into any such transaction or series of related transactions
if such transaction or series of related transactions, in the aggregate, would
result in a sale, assignment, transfer, lease, conveyance or other disposition
of all or substantially all of the properties and assets of the Company and the
Restricted Subsidiaries, taken as a whole, to another Person, unless:
(i) the Surviving Person is a corporation organized or
existing under the laws of the United States, any State thereof or the
District of Columbia;
57
(ii) the Surviving Person (if other than the Company)
assumes (a) all the obligations of the Company under the U.S. Notes
(and the Guarantees of the Company's Domestic Restricted Subsidiaries
shall be confirmed as applying to such Surviving Person's obligations),
this Indenture, the Company Guarantee and, if then in effect, the
Registration Rights Agreement pursuant to a supplemental indenture or
other written agreement, as the case may be, in a form reasonably
satisfactory to the Trustee and (b) by amendment, supplement or other
instrument (in form and substance satisfactory to the Trustee and the
Collateral Agent), executed and delivered to the Trustee, all
Obligations of the Company under the Collateral Agreements and the
Intercreditor Agreement, and in connection therewith shall cause such
instruments to be filed and recorded in such jurisdictions and take
such other actions as may be required by applicable law to perfect or
continue the perfection of the Lien created under the Collateral
Agreements on the Collateral owned by or transferred to the surviving
entity;
(iii) immediately both before and after giving effect to
such transaction, no Default or Event of Default shall have occurred
and be continuing;
(iv) after giving pro forma effect to such transaction,
the Surviving Person (x) would have a Consolidated Net Worth equal to
or greater than the Consolidated Net Worth of the Company immediately
preceding such transaction and (y) would be permitted to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the covenant described under Section 4.12; and
(v) the Company or the Surviving Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture or any amendment or supplement to the Collateral
Agreements is required in connection with such transaction, such
supplemental indenture or such amendment or supplement comply with the
applicable provisions of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been
satisfied to the extent such conditions are required to be satisfied
thereunder either prior to or concurrent with the consummation of the
applicable transaction.
Notwithstanding clauses (iii) and (iv) above, any Restricted Subsidiary
(other than the Dutch Issuer) may consolidate with, merge into or transfer all
or part of its properties and assets to the Company.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraph in
which the Company is not the Surviving Person, such Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company, and the Company shall be discharged from its obligations under,
this Indenture, the U.S. Notes, the Domestic Collateral Agreements and the
Registration Rights Agreement.
Each Domestic Guarantor (other than any Domestic Guarantor whose
Domestic Guarantee is to be released in accordance with the terms of the
Domestic Guarantee and this Indenture in connection with any transaction
complying with the provisions of Section 4.16) will not, and the Company will
not cause or permit any Domestic Guarantor to, consolidate with or merge with or
into any Person other than the Company or any other Domestic Guarantor unless:
(1) the entity formed by or surviving any such
consolidation or merger (if other than the Domestic
Guarantor) or to which such sale, lease, conveyance
or other disposition shall have been made is a
corporation organized and existing under the laws of
the United States or any State thereof or the
District of Columbia;
58
(2) such entity assumes (a) by supplemental indenture (in
form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, all of the
obligations of the Domestic Guarantor under the
Domestic Guarantee and, to the extent applicable, the
Intercreditor Agreement and (b) by amendment,
supplement or other instrument (in form and substance
satisfactory to the Trustee and the Collateral Agent)
executed and delivered to the Trustee and the
Collateral Agent, all obligations of the Domestic
Guarantor under the Domestic Collateral Agreements
and, to the extent applicable, the Intercreditor
Agreement and in connection therewith shall cause
such instruments to be filed and recorded in such
jurisdictions and take such other actions as may be
required by applicable law to perfect or continue the
perfection of the Lien created under the Domestic
Collateral Agreements on the Collateral owned by or
transferred to the surviving entity;
(3) immediately both before and after giving effect to
such transaction, no Default or Event of Default
shall have occurred and be continuing;
(4) immediately after giving effect to such transaction
and the use of any net proceeds therefrom on a pro
forma basis, the Company could satisfy the provisions
of clause (iv) of the first paragraph of this
covenant; and
(5) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture or any
amendment or supplement to the Domestic Collateral
Agreements is required in connection with such
transaction, such supplemental indenture or such
amendment or supplement comply with the applicable
provisions of this Indenture and that all conditions
precedent in this Indenture relating to such
transaction have been satisfied.
Notwithstanding clauses (3) and (4) above, any Restricted Subsidiary
(other than the Dutch Issuer) may consolidate with, merge into or transfer all
or part of its properties and assets to the Company or any Domestic Guarantor.
Any merger or consolidation of (i) a Domestic Guarantor with and into
the Company (with the Company being the surviving entity) or another Domestic
Guarantor or (ii) a Domestic Guarantor or the Company with an Affiliate
organized solely for the purpose of reincorporating such Domestic Guarantor or
the Company in another jurisdiction in the United States or any State thereof or
the District of Columbia or changing the legal form of such Domestic Guarantor
or the Company need only comply with in the case of a merger or consolidation
involving (x) the Company as described in clause (ii) above, clauses (ii) and
(v) of the first paragraph of this covenant and (y) in the case of a Domestic
Guarantor as described in (1) clause (i) above, clause (5) of the immediately
preceding paragraph and (2) clause (ii) above, clauses (2) and (5) of the
immediately preceding paragraph.
(b) The Dutch Issuer shall not, in any single transaction or
series of related transactions, consolidate or merge with or into (whether or
not the Dutch Issuer is the Surviving Person), or sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or
assets (determined on a consolidated basis for the Dutch Issuer and the
Restricted Subsidiaries of the Dutch Issuer) in one or more related transactions
to, another Person, and the Dutch Issuer will not permit any Restricted
Subsidiary of the Dutch Issuer to enter into any such transaction or series of
related transactions if such transaction or series of related transactions, in
the aggregate, would result in a sale,
59
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the properties and assets of the Dutch Issuer and the
Restricted Subsidiaries of the Dutch Issuer, taken as a whole, to another
Person, unless:
(i) the Surviving Person is a corporation organized or
existing under the laws of the jurisdiction of organization of the
Dutch Issuer or Foreign Guarantor that is the subject of such
transaction;
(ii) the Surviving Person (if other than the Dutch Issuer)
assumes (a) all the obligations of the Dutch Issuer under the Dutch
Notes (and the Foreign Guarantees of the Guarantors shall be confirmed
as applying to such Surviving Person's obligations), this Indenture,
the Foreign Guarantee and, if then in effect, the Registration Rights
Agreement pursuant to a supplemental indenture or other written
agreement, as the case may be, in a form reasonably satisfactory to the
Trustee and (b) by amendment, supplement or other instrument (in form
and substance satisfactory to the Trustee and the Collateral Agent),
executed and delivered to the Trustee, all Obligations of the Company
under the Collateral Agreements and in connection therewith shall cause
such instruments to be filed and recorded in such jurisdictions and
take such other actions as may be required by applicable law to perfect
or continue the perfection of the Lien created under the Foreign
Collateral Agreements on the Collateral owned by or transferred to the
surviving entity;
(iii) immediately both before and after giving effect to
such transaction, no Default or Event of Default shall have occurred
and be continuing;
(iv) after giving pro forma effect to such transaction,
the Surviving Person (x) would have a Consolidated Net Worth equal to
or greater than the Consolidated Net Worth of the Company immediately
preceding such transaction and (y) would be permitted to incur at least
$1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to the covenant described under this Section 4.12; and
(v) the Dutch Issuer or the Surviving Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other disposition and, if a
supplemental indenture or any amendment or supplement to the Foreign
Collateral Agreements is required in connection with such transaction,
such supplemental indenture or such amendment or supplement comply with
the applicable provisions of the Indenture and that all conditions
precedent in this Indenture relating to such transaction have been
satisfied to the extent such conditions are required to be satisfied
thereunder either prior to or concurrent with the consummation of the
applicable transaction.
Notwithstanding clauses (iii) and (iv) above, any Restricted Subsidiary
of the Dutch Issuer may consolidate with, merge into or transfer all or part of
its properties and assets to the Dutch Issuer.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the immediately preceding paragraph in
which the Dutch Issuer is not the Surviving Person, such Surviving Person shall
succeed to, and be substituted for, and may exercise every right and power of,
the Dutch Issuer, and the Dutch Issuer shall be discharged from its obligations
under, this Indenture, the Dutch Notes, the Foreign Collateral Agreements and
the Registration Rights Agreement.
Each Foreign Guarantor (other than any Foreign Guarantor whose Foreign
Guarantee is to be released in accordance with the terms of the Foreign
Guarantee and this Indenture in connection with any
60
transaction complying with the provisions of this Section 4.16) will not, and
the Dutch Issuer will not cause or permit any Foreign Guarantor to, consolidate
with or merge with or into any Person other than the Dutch Issuer or any other
Foreign Guarantor unless:
(1) the entity formed by or surviving any such
consolidation or merger (if other than the Foreign
Guarantor) or to which such sale, lease, conveyance
or other disposition shall have been made is a
corporation organized and existing under the laws of
the jurisdiction of organization of the Dutch Issuer
or Foreign Guarantor that is the subject of such
transaction;
(2) such entity assumes (a) by supplemental indenture (in
form and substance satisfactory to the Trustee),
executed and delivered to the Trustee, all of the
obligations of the Foreign Guarantor under the
Foreign Guarantee and (b) by amendment, supplement or
other instrument (in form and substance satisfactory
to the Trustee and the Collateral Agent) executed and
delivered to the Trustee and the Collateral Agent,
all obligations of the Foreign Guarantor under the
Foreign Collateral Agreements and in connection
therewith shall cause such instruments to be filed
and recorded in such jurisdictions and take such
other actions as may be required by applicable law to
perfect or continue the perfection of the Lien
created under the Foreign Collateral Agreements on
the Collateral owned by or transferred to the
surviving entity;
(3) immediately both before and after giving effect to
such transaction, no Default or Event of Default
shall have occurred and be continuing;
(4) immediately after giving effect to such transaction
and the use of any net proceeds therefrom on a pro
forma basis, the Company could satisfy the provisions
of clause (iv) of the first paragraph of this
covenant; and
(5) the Dutch Issuer shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, sale,
assignment, transfer, lease, conveyance or other
disposition and, if a supplemental indenture or any
amendment or supplement to the Foreign Collateral
Agreements is required in connection with such
transaction, such supplemental indenture or such
amendment or supplement comply with the applicable
provisions of this Indenture and that all conditions
precedent in this Indenture relating to such
transaction have been satisfied.
Notwithstanding clauses (3) and (4) above, any Restricted Subsidiary of
the Dutch Issuer may consolidate with, merge into or transfer all or part of its
properties and assets to the Dutch Issuer, the U.S. Issuer or any other
Guarantor.
Any merger or consolidation of (i) a Foreign Guarantor with and into
the Dutch Issuer (with the Dutch Issuer being the surviving entity) or another
Foreign Guarantor or (ii) a Foreign Guarantor or the Dutch Issuer with an
Affiliate organized solely for the purpose of reincorporating such Foreign
Guarantor or the Dutch Issuer in another jurisdiction in the jurisdiction of
organization of the Dutch Issuer or Foreign Guarantor that is the subject of
such transaction or changing the legal form of such Foreign Guarantor or the
Dutch Issuer need only comply with in the case of a merger or consolidation
involving (x) the Dutch Issuer as described in clause (ii) above, clauses (ii)
and (v) of the first paragraph of this covenant and (y) in the case of a Foreign
Guarantor as described in (1) clause (i) above, clause (5) of the
61
immediately preceding paragraph and (2) clause (ii) above, clauses (2) and (5)
of the immediately preceding paragraph.
ARTICLE SIX
REMEDIES
SECTION 6.01. Events of Default. "Events of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) a default for 30 days in the payment when due of
premium, if any, or interest, if any, on or with respect to any Note;
(b) a default in the payment when due of principal on any
Note, whether upon maturity, acceleration, optional or mandatory
redemption, required repurchase or otherwise;
(c) failure to perform or comply with any covenant,
agreement or warranty in this Indenture (other than the defaults
specified in clauses (i) and (ii) above) or any Collateral Agreement
which failure continues for 30 days after written notice thereof has
been given to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes;
(d) the occurrence of one or more defaults under any
agreements, indentures or instruments under which the Company or any
Restricted Subsidiary then has outstanding Indebtedness in excess of
$5.0 million in the aggregate and, if not already matured at its final
maturity in accordance with its terms, such Indebtedness shall have
been accelerated and such acceleration is not rescinded, annulled or
cured within 10 days thereafter;
(e) one or more judgments, orders or decrees for the
payment of money in excess of $5.0 million, either individually or in
the aggregate, shall be entered against the Company or any Restricted
Subsidiary or any of their respective properties and which judgments,
orders or decrees are not paid, discharged, bonded or stayed or stayed
pending appeal for a period of 60 days after their entry;
(f) certain events of bankruptcy, insolvency or
reorganization of either Issuer or any Significant Subsidiary;
(g) any Guarantee of a Significant Subsidiary or the
Company Guarantee ceases to be in full force and effect (other than as
expressly provided for under this Indenture) or is declared null and
void, or any Guarantor which is a Significant Subsidiary or the U.S.
Issuer denies that it has any further liability under its Guarantee or
the Company Guarantee, as applicable, or gives notice to such effect
(other than by reason of the termination of this Indenture or the
release of such Guarantor or the U.S. Issuer from its Guarantee or the
Company Guarantee, as applicable, in accordance with this Indenture);
or
(h) any Collateral Agreement at any time for any reason
shall cease to be in full force and effect, or either Issuer or any
Guarantor which is a Significant Subsidiary denies that it has any
further liability under any Collateral Agreement, or gives notice to
such effect (other than
62
by reason of the termination of this Indenture or the release of such
Guarantor from any Collateral Agreement in accordance with this
Indenture), or any Collateral Agreement at any time for any reason
shall cease to be effective in all material respects to grant the
Collateral Agent the Liens purported to be created thereby on a
material portion of the Collateral thereunder, subject to Permitted
Liens and no other Liens except as permitted by this Indenture or the
Collateral Agreements, in each case for 30 days after the Company
receives written notice thereof specifying such occurrence from the
Trustee, the Collateral Agent or the Holders of at least 25% of the
outstanding principal amount at maturity of the Notes.
The Issuers shall provide an Officers' Certificate to the Trustee
within five days of the occurrence of any Default or Event of Default (provided,
however, that pursuant to Section 4.06 hereof the Company shall provide such
certification at least annually whether or not they know of any Default or Event
of Default) that has occurred and, if applicable, describe such Default or Event
of Default and the status thereof.
SECTION 6.02. Acceleration. (a) If any Event of Default (other than as
specified in clause (f) of Section 6.01 with respect to either Issuer) occurs
and is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes may, and the Trustee at the
request of such Holders shall, declare all the Notes to be due and payable
immediately by notice in writing to the Issuers, and to the Issuers and the
Trustee if by the Holders, specifying the respective Event of Default and that
such notice is a "notice of acceleration," and the Notes shall become
immediately due and payable. Notwithstanding the foregoing, in the case of an
Event of Default arising from the events specified in clause (f) of Section 6.01
with respect to either Issuer, the principal of, premium, if any, and any
accrued interest, if any, on all outstanding Notes of both Issuers shall ipso
facto become immediately due and payable without further action or notice.
Holders may not enforce this Indenture or the Notes except as provided in this
Indenture and under the Trust Indenture Act.
(b) At any time after a declaration of acceleration, but before a
judgment or decree for payment of the money due has been obtained by the
Trustee, the Holders of a majority in principal amount of the Notes outstanding,
by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (i) the Company has paid or deposited with
the Trustee a sum sufficient to pay (A) all sums paid or advanced by the Trustee
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, (B) all overdue interest (including any
interest accrued subsequent to an Event of Default specified in clause (f) or
(g) of Section 6.01 hereof) on all Notes, (C) the principal of and premium, if
any, on any Notes which have become due otherwise than by such declaration or
occurrence of acceleration and interest thereon at the rate borne by the Notes,
and (D) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Notes; and (ii) all Events of Default,
other than the non-payment of principal of Notes which have become due solely by
such declaration or occurrence of acceleration, have been cured or waived; and
(iii) the rescission would not conflict with any judgment, order or decree of
any court of competent jurisdiction.
(c) The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of all of the
Holders waive any existing Default or Event of Default and its consequences
under this Indenture except (i) a continuing Default or Event of Default in the
payment of the principal of, or premium, if any, or interest, if any, on, the
Notes (which may only be waived with the consent of each affected Holder), or
(ii) in respect of a covenant or provision which under this Indenture cannot be
modified or amended without the consent of each Holder. Subject to certain
limitations, the Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from the Holders notice of
63
any continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal, premium or interest) if it determines that
withholding notice is in their interest.
SECTION 6.03. 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 the principal of, premium, if any, or
interest on the Notes or to enforce the performance of any provision of the
Notes or this Indenture.
All rights of action and claims under this Indenture or the Notes may
be enforced by the Trustee even if it does not possess any of the Notes or does
not produce any of them in the proceeding. A delay or omission by the Trustee or
any Holder in exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or acquiescence
in the Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults. Prior to the declaration of
acceleration of the Notes, the Holders of not less than a majority in aggregate
principal amount of the Notes then outstanding by written notice to the Trustee
may, on behalf of the Holders of all the Notes, waive any existing Default or
Event of Default and its consequences under this Indenture, except a Default or
Event of Default specified in Section 6.01(i) or (ii) or in respect of any
provision hereof which cannot be modified or amended without the consent of the
Holder so affected pursuant to Section 9.02. When a Default or Event of Default
is so waived, it shall be deemed cured and shall cease to exist. This Section
6.04 shall be in lieu of ss. 316(a)(1)(B) of the TIA and such ss. 316(a)(1)(B)
of the TIA is hereby expressly excluded from this Indenture and the Notes, as
permitted by the TIA.
SECTION 6.05. Control by Majority. Subject to Section 2.09, the Holders
of the Notes may not enforce this Indenture or the Notes except as provided in
this Article Six and under the TIA. The Holders of not less than a majority in
aggregate principal amount of the outstanding Notes shall have the right to
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 the
Trustee, provided, however, that the Trustee may refuse to follow any direction
(a) that conflicts with any rule of law or this Indenture, (b) that the Trustee
determines, in its sole discretion, may be unduly prejudicial to the rights of
another Holder, or (c) that may expose the Trustee to personal liability for
which reasonable indemnity provided to the Trustee against such liability shall
be inadequate; provided further, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such direction
or this Indenture. This Section 6.05 shall be in lieu of ss. 316(a)(1)(A) of the
TIA, and such ss. 316(a)(1)(A) of the TIA is hereby expressly excluded from this
Indenture and the Notes, as permitted by the TIA.
SECTION 6.06. Limitation on Suits. No Holder of any Notes shall have
any right to institute any proceeding with respect to this Indenture or the
Notes or any remedy hereunder, unless the Holders of at least 25% in aggregate
principal amount of the outstanding Notes have made written request, and offered
reasonable indemnity satisfactory to the Trustee, to the Trustee to institute
such proceeding as Trustee under the Notes and this Indenture, the Trustee has
failed to institute such proceeding within 45 days after receipt of such notice,
request and offer of indemnity and the Trustee, within such 45-day period, has
not received directions inconsistent with such written request by Holders of not
less than a majority in aggregate principal amount of the outstanding Notes.
The foregoing limitations shall not apply to a suit instituted by a
Holder of a Note for the enforcement of the payment of the principal of,
premium, if any, or interest on, such Note on or after the respective due dates
expressed or provided for in such Note.
64
A Holder may not use this Indenture to prejudice the rights of any
other Holders or to obtain priority or preference over such other Holders.
SECTION 6.07. Right of Holders to Receive Payment. Notwithstanding any
other provision in this Indenture, the right of any Holder of a Note to receive
payment of the principal of, premium, if any, and interest on such Note, on or
after the respective due dates expressed or provided for in such Note, or to
bring suit for the enforcement of any such payment on or after the respective
due dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in clause (i) or (ii) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuers, or any other obligor on the Notes for the whole amount of
the principal of, premium, if any, 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 provided for 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.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents, counsel, accountants and experts) and the Holders allowed
in any judicial proceedings relative to the Issuers or Restricted Subsidiaries
(or any other obligor upon the Notes), their creditors or their property and
shall be entitled and empowered to participate as a member, voting or otherwise,
of any official committee of creditors appointed in such matter and 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 7.07. The Issuers' payment obligations under this Section 6.09 shall be
secured in accordance with the provisions of Section 7.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article Six it shall pay out such money in the following order:
First: to the Trustee for amounts due under Section 7.07 and
to the Collateral Agent for amounts due under Section 7.12 as it
relates to Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Notes for interest;
Third: to Holders for the principal amounts (including any
premium) owing under the Notes, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
the principal (including any premium); and
Fourth: the balance, if any, to the Issuers or any other
obligor on the Notes, as their interests may appear, or as a court of
competent jurisdiction may direct.
65
Notwithstanding anything to the contrary in this Section 6.10, to the
extent any moneys constitute (i) Foreign Collateral, proceeds thereof or
proceeds resulting from the foreclosure of any Foreign Collateral or payments by
the Dutch Issuer or any Foreign Guarantor, such moneys shall be applied pursuant
to the immediately preceding sentence solely in respect of the obligations of
(A) the Dutch Issuer under the Units, the Dutch Notes and the Indenture and (B)
the Foreign Guarantors under the Foreign Guarantee; or (ii) at anytime when an
Event of Default shall have occurred and is then continuing, Domestic
Collateral, proceeds thereof or proceeds resulting from the foreclosure of any
Domestic Collateral or payments by the U.S. Issuer or any Domestic Guarantor,
such proceeds shall be applied (A) first, in respect of the obligations of (1)
the U.S. Issuer under the Units, the U.S. Notes and the Indenture and (2) the
Domestic Guarantors under Domestic Guarantee to the extent such obligations are
in respect of the obligations of the U.S. Issuer described in clause (ii)(A)(1)
above and (B) second, in respect of the obligations of (1) the U.S. Issuer under
the Company Guarantee and the Domestic Guarantors under the Domestic Guarantee,
in each case, to the extent such obligations under the Company Guarantee and the
Domestic Guarantee are in respect of the obligations of the Dutch Issuer
described in clause (i)(A) above.
The Trustee, upon prior written notice to the Issuers, may fix a record
date and payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court may in its discretion
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to any suit by the
Trustee, any suit by a Holder pursuant to Section 6.07, or a suit by a Holder or
Holders of more than 10% in aggregate principal amount of the outstanding Notes.
SECTION 6.12. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture or any Note 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 the Issuers, the Trustee and the Holders shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee may exercise such of the rights and
powers vested in it by this Indenture and shall use the same degree of care and
skill in its exercise thereof as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no duties, covenants or
obligations of the Trustee shall be implied in this Indenture.
66
(ii) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or
opinions that by any provision hereof are specifically 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 (but need not confirm or investigate the
accuracy or mathematical calculations or other facts stated therein or
otherwise verify the contents thereof).
(c) Notwithstanding anything to the contrary herein contained, 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:
(i) This paragraph does not limit the effect of paragraph
(b) of this Section 7.01.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(iii) 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 6.02, 6.04 or 6.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section 7.01
and Section 7.02.
(f) The Trustee shall not be liable for interest on any money or
assets received by it except as the Trustee may agree in writing with the
Issuers. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
(g) The Trustee may refuse to perform any duty or exercise any
right or power hereunder unless (i) it is provided adequate funds to enable it
to do so and (ii) it receives indemnity satisfactory to it, in its sole
discretion, against any loss, liability, fee or expense.
SECTION 7.02. Rights of Trustee. Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any document
believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not and shall not be required to
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may consult with counsel of its selection and may require an Officers'
Certificate or an Opinion of Counsel, or both, which shall conform to
Sections 11.04 and 11.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
67
(d) The Trustee shall not be liable for any action that
it takes or omits to take in good faith which it reasonably believes to
be authorized or within its rights or powers.
(e) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, notice, request,
direction, consent, order, bond, debenture, or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled, upon reasonable notice to the Issuers, to examine
the books, records, and premises of the Issuers personally or by agent
or attorney and to consult with the officers and representatives of the
Issuers, including the Issuers' accountants and attorneys.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Holders pursuant to the
provisions of this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred by it in
compliance with such request, order or direction.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties
hereunder.
(h) Delivery of reports, information and documents to the
Trustee under Section 4.08 is for informational purposes only and the
Trustee's receipt of the foregoing shall not constitute constructive
notice of any information contained therein or determinable from
information contained therein, including the Issuers' compliance with
any of their covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers' Certificates).
(i) The permissive right of the Trustee to act hereunder
shall not be construed as a duty.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Issuers, any of their Subsidiaries, or their
respective Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, and it shall not be accountable for the Issuers'
use of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or any document entered into or
issued in connection with the issuance and sale of the Notes or any statement in
the Notes other than the Trustee's certificate of authentication.
SECTION 7.05. Notice of Default. If a Default or an Event of Default
occurs and is continuing and if it is known to a Trust Officer, the Trustee
shall mail to each Holder notice of the uncured Default or Event of Default
within 30 days after obtaining knowledge thereof. Except in the case of a
Default or an Event of Default in payment of principal of, or interest on, any
Note, including an accelerated payment, a Default in payment on (i) the Change
of Control Purchase Date pursuant to a Change of Control Offer, (ii) on the
Asset Sale Purchase Date pursuant to a Asset Sale Offer or (iii) the required
purchase date pursuant to an Excess Cash Flow Offer and a Default in compliance
with Article Five hereof, the Trustee may withhold the notice if and so long as
its Board of Directors, the executive committee of its Board of Directors or a
committee of its directors and/or Trust Officers in good faith determines that
withholding the notice is in the interest of the Holders. The foregoing sentence
of this Section 7.05 shall be in lieu of
68
the proviso to ss. 315(b) of the TIA and such proviso to ss. 315(b) of the TIA
is hereby expressly excluded from this Indenture and the Notes, as permitted by
the TIA.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
October 15 of each year beginning with 2004, the Trustee shall, to the extent
that any of the events described in TIA ss. 313(a) occurred within the previous
twelve months, but not otherwise, mail to each Holder a brief report dated as of
such date that complies with TIA ss. 313(a). The Trustee also shall comply with
TIA xx.xx. 313(b), (c) and (d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Issuers and filed with the Commission and each stock exchange, if
any, on which the Notes are listed.
The Issuers shall promptly, and in any event within 10 days, notify the
Trustee if the Notes become listed on any stock exchange and the Trustee shall
comply with TIA ss. 313(d).
SECTION 7.07. Compensation and Indemnity. The Issuers and the
Guarantors, jointly and severally, shall pay to the Trustee from time to time
such compensation for its services as has been agreed to in writing signed by
the Issuers and the Trustee. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Issuers and the
Guarantors, jointly and severally, shall reimburse the Trustee upon request for
all reasonable out-of-pocket disbursements, advances or expenses incurred or
made by it in connection with the performance of its duties under this
Indenture, any Collateral Agreement or the Intercreditor Agreement. Such
expenses shall include the reasonable fees and expenses of the Trustee's agents,
counsel, accountants and experts.
The Issuers and the Guarantors, jointly and severally, shall indemnify
each of the Trustee (or any predecessor Trustee) and its agents, employees,
stockholders, Affiliates and directors and officers for, and hold them each
harmless against, any and all loss, liability, damage, claim or expense
(including reasonable fees and expenses of counsel), including taxes (other than
taxes based on the income of the Trustee) incurred by any of them except for
such actions to the extent caused by any gross negligence, bad faith or willful
misconduct on their part, arising out of or in connection with the acceptance or
administration of this trust including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their rights, powers or duties hereunder,
under any Collateral Agreement or the Intercreditor Agreement. The Trustee shall
notify the Issuers and the Guarantors promptly of any claim asserted against the
Trustee for which it may seek indemnity, provided, however, that failure to so
notify the Issuers and the Guarantors shall not release the Issuers and the
Guarantors of their obligations hereunder or under any Collateral Agreement or
the Intercreditor Agreement unless and to the extent such failure results in the
forfeiture by the Issuers and the Guarantors of any substantial rights or
defenses. At the Trustee's sole discretion, the Issuers and the Guarantors shall
defend the claim and the Trustee shall cooperate and may participate in the
defense; provided, however, that any settlement of a claim shall be approved in
writing by the Trustee (such approval not to be unreasonably withheld) if such
settlement would result in an admission of liability by the Trustee or if such
settlement would not be accompanied by a full release of the Trustee for all
liability arising out of the events giving rise to such claim. Alternatively,
the Trustee may at its option have separate counsel of its own choosing and the
Issuers shall pay the reasonable fees and expenses of such counsel; provided
that the Issuers will not be required to pay such fees and expenses if the
Issuers assume the Trustee's defense and there is no conflict of interest
between the Issuers and the Trustee in connection with such defense as
reasonably determined by the Trustee. The Issuers need not pay for any
settlement made without their written consent, which consent will not be
unreasonably withheld. The Issuers need not reimburse any expense or indemnify
against any loss or liability to the extent incurred by the Trustee through its
negligence, bad faith or willful misconduct.
69
To secure the Issuers' and the Guarantors' payment obligations in this
Section 7.07, the Trustee shall have a lien prior to the Notes on all assets or
money held or collected by the Trustee, in its capacity as Trustee, except
assets or money held in trust to pay principal of or premium, if any, or
interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(vi) or (vii) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the resignation or
removal of the Trustee and the discharge or termination of this Indenture, any
Collateral Agreement or the Intercreditor Agreement.
Notwithstanding anything to the contrary in this Section 7.07, neither
the Dutch Issuer nor any Foreign Guarantor shall be liable for any obligations
of the U.S. Issuer or any Domestic Guarantor under this Section 7.07.
SECTION 7.08. Replacement of Trustee. The Trustee may resign at any
time by so notifying the Issuers in writing at least 30 days in advance of such
resignation; provided, however, that no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.08. The Holders of a majority in principal amount of the outstanding Notes may
remove the Trustee and appoint a successor Trustee with the Issuers' consent, by
so notifying the Issuers and the Trustee. The Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or 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.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers 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 aggregate principal
amount of the outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail notice of such successor Trustee's
appointment 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 Issuers or the
Holders of at least 10% in aggregate principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
70
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding any resignation or replacement of the Trustee pursuant
to this Section 7.08, the Issuers' obligations under Section 7.07 shall continue
for the benefit of the retiring Trustee.
SECTION 7.09. 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, 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; provided, however, that such corporation shall be
otherwise qualified and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirement of TIA xx.xx. 310(a)(1), (2)
and (5). The Trustee (or, in the case of a Trustee that is a corporation
included in a bank holding company system, the related bank holding company)
shall have a combined capital and surplus of at least $100 million as set forth
in its most recent published annual report of condition, and have a Corporate
Trust Office in the City of New York. In addition, if the Trustee is a
corporation included in a bank holding company system, the Trustee,
independently of such bank holding company, shall meet the capital requirements
of TIA ss. 310(a)(2). The Trustee shall comply with TIA ss. 310(b); provided,
however, that there shall be excluded from the operation of TIA ss. 310(b)(1)
any indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Issuers are outstanding,
if the requirements for such exclusion set forth in TIA ss. 310(b)(1) are met.
The provisions of TIA ss. 310 shall apply to the Issuers, as obligor of the
Notes.
SECTION 7.11. Preferential Collection of Claims Against the Issuers.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The
provisions of TIA ss. 311 shall apply to the Issuers, as obligor of the Notes.
SECTION 7.12. Trustee as Collateral Agent. References to the Trustee in
Sections 7.01(f), 7.02, 7.03, 7.04, 7.07 and 7.08 shall include the Trustee in
its role as Collateral Agent.
SECTION 7.13. Co-Trustees, Co-Collateral Agents, Sub-Collateral Agent,
Separate Trustees and Separate Collateral Agents. At any time or times, for the
purpose of meeting the legal requirements of any jurisdiction in which any of
the Collateral may at the time be located, the Issuers, the Collateral Agent and
the Trustee shall have power to appoint, and, upon the written request of the
Trustee or of the Holders of at least 25% in principal amount of the Notes
outstanding, the Issuers shall for such purpose join with the Trustee in the
execution, delivery and performance of all instruments and agreements necessary
or proper to appoint, one or more Persons approved by the Trustee either to act
as co-trustee, jointly with the Trustee, of all or any part of the Collateral,
to act as co-collateral agent, jointly with the Collateral Agent, or to act as
separate trustees, separate collateral agents or sub-collateral agent of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section 7.13. If the Issuers does not
join in such appointment within 15 days after the receipt by it of a request so
to do, or in case an Event of Default has occurred and is continuing, the
Trustee alone shall have power to make such appointment.
The Issuers, the Trustee, the Collateral Agent and the Holders by the
acceptance of their Units and Notes hereby appoint HSBC Bank plc to serve as a
sub-collateral agent with respect to one or more of the Foreign Collateral
Agreements as may be determined necessary to satisfy the legal requirements of
71
any jurisdiction in which any of the Collateral that is the subject of such
Foreign Collateral Agreements may at the time be located.
Should any written instrument from the Issuers be required by any
co-trustee, co-collateral agent, separate trustee, separate collateral agent or
sub-collateral agent so appointed for more fully confirming to such co-trustee,
co-collateral agent, separate trustee, separate collateral agent or
sub-collateral agent such property, title, right or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Issuers.
Every co-trustee, co-collateral agent, separate trustee, separate
collateral agent or sub-collateral agent shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
(a) The Units and Notes shall be authenticated and
delivered, and all rights, powers, duties and obligations hereunder in
respect of the custody of securities, cash and other personal property
held by, or required to be deposited or pledged with, the Trustee
hereunder, shall be exercised solely, by the Trustee.
(b) The rights, powers, duties and obligations hereby
conferred or imposed upon the Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and
exercised or performed by the Trustee or by the Trustee and such
co-trustee or separate trustee jointly, or by the Collateral Agent and
such co-collateral agent or separate collateral agent or sub-collateral
agent, jointly as shall be provided in the instrument appointing such
co-trustee, co-collateral agent, separate trustee, separate collateral
agent or sub-collateral agent, except to the extent that under any law
of any jurisdiction in which any particular act is to be performed, the
Trustee or Collateral Agent shall be incompetent or unqualified to
perform such act, in which event such rights, powers, duties and
obligations (including the holding of title to the collateral or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such co-trustee, co-collateral agent, separate
trustee, separate collateral agent or sub-collateral agent, but solely
at the discretion of the Trustee or Collateral Agent, as applicable.
(c) The Trustee at any time, by an instrument in writing
executed by it, with the concurrence of the Issuers evidenced by a
Board Resolution, may accept the resignation of or remove any
co-trustee, co-collateral agent, separate trustee, separate collateral
agent or sub-collateral agent appointed under this Section 7.13, and,
in case an Event of Default has occurred and is continuing, the Trustee
shall have power to accept the resignation of, or remove, any such
co-trustee, co-collateral agent, separate trustee, separate collateral
agent or sub-collateral agent without the concurrence of the Issuers.
Upon the written request of the Trustee, the Issuers shall join with
the Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such
resignation or removal. A successor to any co-trustee, co-collateral
agent, separate trustee, separate collateral agent or sub-collateral
agent so resigned or removed may be appointed in the manner provided in
this Section 7.13.
(d) No co-trustee, co-collateral agent, separate trustee,
separate collateral agent or sub-collateral agent hereunder shall be
personally liable by reason of any act or omission of the Trustee, the
Collateral Agent or any other such trustee or collateral agent
hereunder.
Any act of Holders delivered to the Trustee or Collateral Agent shall
be deemed to have been delivered to each such co-trustee, co-collateral agent,
separate trustee, separate collateral agent and sub-collateral agent.
72
Any notice, request or other writing given to the Trustee or Collateral
Agent shall be deemed to have been given to each of the then separate trustees,
separate collateral agent, sub-collateral agent, co-trustees and co-collateral
agents, as effectively as if given to each of them. Every instrument appointing
any co-trustee, co-collateral agent, separate trustee, separate collateral agent
or sub-collateral agent shall refer to this Indenture and the conditions of this
Article 7. Each co-trustee, co-collateral agent, separate trustee, separate
collateral agent and sub-collateral agent, upon its acceptance of the trusts
conferred (which in the case of HSBC Bank plc may be evidenced by its execution
of one or more of the Foreign Collateral Agreements), shall be vested with the
estates or property specified in its instrument of appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including the benefit of the
guarantees made under Section 12.01 hereof and every provision of this Indenture
relating to the conduct of, affecting the liability of, or affording protection
or rights (including the rights to compensation, reimbursement and
indemnification hereunder) to, the Trustee. Every such instrument shall be filed
with the Trustee.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01. Satisfaction and Discharge of Indenture. This Indenture
will be discharged and will cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the Notes, as
expressly provided for in this Indenture) as to all outstanding Notes when:
(i) either (A) all 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 Issuers) have been
delivered to the Trustee for cancellation or (B) all Notes not
theretofore delivered to the Trustee for cancellation have become due
and payable and the Issuers have irrevocably deposited or caused to be
deposited with the Trustee an amount in United States Dollars
sufficient to pay and discharge the entire indebtedness on the Notes
not theretofore delivered to the Trustee for cancellation, for the
principal of, premium, if any, interest, if any, to the date of
deposit;
(ii) the Issuers have paid or caused to be paid all other
sums payable under this Indenture by the Company; and
(iii) the Issuers have delivered to the Trustee Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent under this Indenture relating to the satisfaction and
discharge of this Indenture have been complied with.
SECTION 8.02. Defeasance or Covenant Defeasance. (a) Subject to the
satisfaction of the conditions in Section 8.02(c) hereof, the Issuers may, at
their option by Board Resolution, at any time, with respect to the Notes, elect
to have the obligations of the Issuers discharged with respect to the
outstanding Notes ("defeasance"). Upon such defeasance, the Issuers shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.04 hereof and the other Sections of and matters under
this Indenture referred to in (i) and (ii) below, and to have satisfied all its
other obligations under such Notes and this Indenture, except for the following,
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of Notes to receive solely from the trust fund described in
Section 8.02(c) and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest, if any, on such Notes when
such payments are due, (ii) the Company's obligations under Sections 2.03, 2.05,
2.06, 2.07, 2.10 and 4.02, (iii) the rights, powers, trusts,
73
duties and immunities of the Trustee hereunder, including, without limitation,
the Trustee's rights under Section 7.07, and (iv) this Article Eight. Subject to
compliance with this Article Eight, the Company may exercise its option under
this Section 8.02(a) notwithstanding the prior exercise of its option under
Section 8.02(b) with respect to the Notes.
(b) Subject to the satisfaction of the conditions in Section
8.02(c) hereof, the Issuers may, at its option by Board Resolution, at any time,
elect to effect covenant defeasance ("covenant defeasance"). On and after the
date such conditions are satisfied, (i) the Issuers shall be released from their
obligations under any covenant or provision contained in Sections 4.03 (but only
as to Restricted Subsidiaries), 4.04, 4.05, 4.06, 4.07, 4.08 and 4.10 through
4.26, (ii) clauses (iii) and (iv) of Section 6.01 hereof shall not apply, and
(iii) the provisions of Article Five and the Notes shall thereafter be deemed to
be 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 and the provisions of Article Five, but shall
continue to be deemed "outstanding" for all other purposes hereunder and subject
to any mandatory requirements of the TIA. For this purpose, such covenant
defeasance means that, with respect to the Notes, the Issuers may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such Section or Article, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under clauses (iii) and (iv) of Section 6.01
hereof, but, except as specified above, the remainder of this Indenture shall be
unaffected thereby.
(c) In order to effect defeasance or covenant defeasance, the
following conditions must be satisfied:
(i) the Issuers shall irrevocably deposit with the
Trustee, as trust funds in trust, for the benefit of the Holders, cash
in United States Dollars, U.S. Government Obligations, or a combination
thereof, in such amounts as will be sufficient, in the report of a
nationally recognized firm of independent public accountants or a
nationally recognized investment banking firm, to pay and discharge the
principal of, premium, if any, and interest, if any, on the outstanding
Notes to redemption or maturity;
(ii) the Issuers shall have delivered to the Trustee an
Opinion of Counsel in the United States to the effect that the Holders
will not recognize income, gain or loss for Federal income tax purposes
as a result of such defeasance or covenant defeasance, as the case may
be, and will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance, as the case may be, had not
occurred (in the case of defeasance, such Opinion of Counsel must refer
to and be based upon a ruling of the Internal Revenue Service or a
change in applicable Federal income tax laws);
(iii) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit or insofar as clause (vi)
under the first paragraph under Section 6.01 is concerned, at any time
during the period ending on the 91st day after the date of deposit;
(iv) such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default under this
Indenture or a default under any other agreement or instrument to which
either Issuer is a party or by which it is bound;
(v) the Issuers shall have delivered to the Trustee
Opinions of Counsel to the effect that (A) the trust funds will not be
subject to any rights of holders of Indebtedness (other than the
74
Holders) and (B) after the 91st 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; and
(vi) the Issuers shall have delivered to the Trustee an
Officers' Certificate and Opinions of Counsel, each stating that all
conditions precedent under this Indenture to either defeasance or
covenant defeasance, as the case may be, have been complied with and
that no violations under agreements governing any other outstanding
Indebtedness would result therefrom.
SECTION 8.03. Application of Trust Money. The Trustee or Paying Agent
shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited
with it pursuant to Section 8.01 or 8.02, and shall apply the deposited U.S.
Legal Tender and the money from U.S. Government Obligations in accordance with
this Indenture to the payment of the principal of and interest on the Notes. The
Trustee shall be under no obligation to invest said U.S. Legal Tender or U.S.
Government Obligations except as it may agree in writing with the Issuers.
The Issuers shall pay, and indemnify the Trustee against, any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.01 or 8.02 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.
SECTION 8.04. Repayment to the Issuers. Subject to Sections 8.01 and
8.02, the Trustee and the Paying Agent shall promptly pay to the Issuers upon
written request any excess U.S. Legal Tender or U.S. Government Obligations held
by them at any time and thereupon shall be relieved from all liability with
respect to such money. The Trustee and the Paying Agent shall pay to the Issuers
upon request any money held by them for the payment of principal or interest
that remains unclaimed for one year; provided, however, that the Trustee or such
Paying Agent, before being required to make any payment, may at the expense of
the Issuers cause to be published once in a newspaper of general circulation in
the City of New York or mail to each Holder entitled to such money notice that
such money remains unclaimed and that after a date specified therein which shall
be at least 30 days from the date of such publication or mailing any unclaimed
balance of such money then remaining will be repaid to the Issuers. After
payment to the Issuers, Holders entitled to such money must look to the Issuers
for payment as general creditors unless an applicable law designates another
Person.
SECTION 8.05. Reinstatement. If the Trustee or Paying Agent is unable
to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with
Section 8.01 or 8.02 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 Issuers' obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 or 8.02, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender
or U.S. Government Obligations in accordance with Section 8.01 or 8.02, as the
case may be; provided, however, that if the Issuers has made any payment of
interest on or principal of any Notes because of the reinstatement of its
obligations, the Issuers shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the U.S. Legal Tender or U.S. Government
Obligations held by the Trustee or Paying Agent.
SECTION 8.06. Acknowledgment of Discharge by Trustee. After (i) the
conditions of Section 8.01 or 8.02(a) have been satisfied, (ii) the Issuers have
paid or caused to be paid all other sums payable hereunder by the Issuers and
(iii) the Issuers have 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
75
the satisfaction and discharge or defeasance of this Indenture have been
complied with, the Trustee upon request shall acknowledge in writing the
discharge of the Issuers' obligations under this Indenture except for those
surviving obligations specified in Section 8.01 or 8.02, as the case may be.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Issuers, when authorized
by a Board Resolution, and the Trustee, together, may amend or supplement this
Indenture, any Collateral Agreement, the Intercreditor Agreement or the Notes
without notice to or consent of any Holder:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(iii) to provide for the assumption of either Issuer's
Obligations to Holders in the event of any Disposition involving such
Issuer in which such Issuer is not the Surviving Person;
(iv) to make any change that would provide any additional
rights or benefits to the Holders or that does not adversely affect the
rights of any such Holder;
(v) to release any Guarantor from its Guarantee and this
Indenture, any Collateral Agreement or the Intercreditor Agreement or
the U.S. Issuer with respect to the Company Guarantee from the Company
Guarantee that is permitted to be released under this Indenture in
accordance with the terms thereof; or
(vi) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act.
SECTION 9.02. With Consent of Holders. (a) Subject to Section 6.07, the
Issuers, when authorized by a Board Resolution, and the Trustee, together, with
the written consent of the Holder or Holders of at least a majority in aggregate
principal amount of the then outstanding Notes (including consents obtained in
connection with a tender offer or exchange offer for the Notes), may amend or
supplement this Indenture, any Collateral Agreement, the Intercreditor Agreement
or the Notes without notice to any other Holder. Subject to Section 6.02 and
6.07, the Holder or Holders of not less than a majority in aggregate principal
amount of the then outstanding Notes may waive compliance by the Issuers with
any provision of this Indenture, any Collateral Agreement, the Intercreditor
Agreement or the Notes without notice to any other Holder.
(b) Notwithstanding Section 9.02(a) hereof, no amendment,
supplement or waiver, including a waiver pursuant to Section 6.04, shall,
without the prior written consent of each Holder of each Note affected thereby:
(i) reduce the principal amount of the Notes whose
Holders must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed maturity
of any Note, or alter or waive the provisions with respect to the
redemption of the Notes in a manner adverse to the Holders other than
with respect to a Change of Control Offer or an Asset Sale Offer;
76
(iii) reduce the rate of or change the time for payment of
interest on any Notes;
(iv) waive a Default or Event of Default in the payment of
principal of, premium, if any, or interest, if any, on the Notes
(except that the Holders of at least a majority in aggregate principal
amount of the then outstanding Notes may (a) rescind an acceleration of
the Notes that resulted from a non-payment default, and (b) waive the
payment default that resulted from such acceleration);
(v) make any Note payable in money other than that stated
in the Notes;
(vi) make any change in the provisions of this Indenture
relating to the right of the Holders to waive past Defaults or the
rights of the Holders to receive payments of principal of, or premium,
if any, or interest, if any, on, the Notes;
(vii) following the occurrence of a Change of Control,
amend, change or modify either Issuer's obligation to make and
consummate a Change of Control Offer by reason of such a Change of
Control or modify any of the provisions or definitions with respect
thereto in a manner adverse to the Holders with respect to such Change
of Control, or following the exercise by the Dutch Issuer of the Change
of Control Redemption of Dutch Notes Right or Tax Redemption, amend,
change or modify the Dutch Issuer's obligation to make and consummate a
Change of Control Redemption of Dutch Notes or Tax Redemption with
respect to such exercise or modify any of the provisions or definitions
with respect thereto in a manner adverse to the Holders with respect to
such Change of Control Redemption of Dutch Notes Right, Change of
Control Redemption of Dutch Notes or Tax Redemption, or following the
occurrence of an Asset Sale or any fiscal year of the Company ending on
or after June 30, 2004, for which Excess Cash Flow was in an amount at
least equal to $250,000, amend, change or modify the Issuers'
obligations to make and consummate an Asset Sale Offer with respect to
such Asset Sale or an Excess Flow Offer with respect to such fiscal
year, as the case may be, or modify any of the provisions or
definitions with respect thereto in a manner adverse to the Holders
with respect to such Asset Sale Offer or Excess Cash Flow Offer, as the
case may be;
(viii) release any Guarantor that is a Significant
Subsidiary or the U.S. Issuer with respect to the Company Guarantee
from any of its obligations under its Guarantee, this Indenture, any
Collateral Agreement, the Intercreditor Agreement or the Company
Guarantee, as applicable, other than in accordance with the terms of
this Indenture; or
(ix) release all or substantially all of the Collateral.
SECTION 9.03. Compliance with TIA. Every amendment, waiver or
supplement of this Indenture, any Collateral Agreement, the Intercreditor
Agreement or the Notes shall comply with the TIA as then in effect; provided,
however, that this Section 9.03 shall not of itself require that this Indenture
or the Trustee be qualified under the TIA or constitute any admission or
acknowledgment by any party hereto that any such qualification is required prior
to the time this Indenture and the Trustee are required by the TIA to be so
qualified.
SECTION 9.04. Revocation and Effect of Consents. Until an amendment,
waiver or supplement becomes effective, a consent to it by a Holder is a
continuing consent by the Holder 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. Subject to the
following paragraph, any such Holder or subsequent Holder may revoke the consent
as to such Holder's Note or portion of such Note by notice to the Trustee or the
Issuers received before the date on which the Trustee receives an Officers'
77
Certificate certifying that the Holders of the requisite principal amount of
Notes have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver. An amendment, supplement or waiver becomes
effective upon receipt by the Trustee of such Officers' Certificate and evidence
of consent by the Holders of the requisite percentage in principal amount of
outstanding Notes.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be at least 30 days prior to the
first solicitation of such consent. If a record date is fixed, then
notwithstanding the second sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date (or their duly designated
proxies), and only those Persons, shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it makes any change described in Section 9.02(b), in
which case, the amendment, supplement or waiver shall bind only each Holder of a
Note who has consented to it and every subsequent Holder of a Note or portion of
a Note that evidences the same debt as the consenting Holder's Note; provided,
however, that any such waiver shall not impair or affect the right of any Holder
to receive payment of principal of and interest 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 without the
consent of such Holder.
SECTION 9.05. Notation on or Exchange of Notes. If an amendment,
supplement or waiver changes the terms of a Note, the Trustee may require the
Holder of such Note to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and return it to the
Holder. Alternatively, if the Issuers or the Trustee so determines, the Issuers
in exchange for the Note shall issue and the Trustee shall authenticate a new
Note that reflects the changed terms.
SECTION 9.06. Trustee To Sign Amendments, Etc. The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this Article
Nine; provided, however, that the Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture, any Collateral Agreement or
the Intercreditor Agreement. The Trustee shall be entitled to receive, 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 Nine is authorized or permitted by
this Indenture. Such Opinion of Counsel shall not be an expense of the Trustee
or the Holders.
ARTICLE TEN
SECURITY
SECTION 10.01. Grant of Security Interest. To secure the due and
punctual payment of the principal of, premium, if any, and interest on the Notes
and amounts due hereunder and under the Guarantees when and as the same shall be
due and payable, whether on an Interest Payment Date, at maturity, by
acceleration, purchase, repurchase, redemption or otherwise, and interest on the
overdue principal of, premium, if any, and interest (to the extent permitted by
law), if any, on the Notes and the performance of all other Obligations of the
Issuers and the Guarantors to the Holders, the Collateral Agent or the Trustee
under this Indenture, the Notes and the Guarantees, as applicable, (i) the
Company hereby covenants to cause the Domestic Collateral Agreement and (ii) the
Dutch Issuer hereby covenants to cause the Foreign Collateral Agreements, in
each case, to be executed and delivered concurrently with this Indenture.
Subject to the Intercreditor Agreement to the extent applicable, the Collateral
Agreements
78
shall grant to the Collateral Agent for the benefit of each Secured Party
Security Interests in the Collateral and shall be deemed hereby incorporated by
reference herein to the same extent and as fully as if set forth in their
entirety at this place, and reference is made hereby to each Collateral
Agreement for a more complete description of the terms and provisions thereof.
The Trustee and each Holder, by its acceptance of a Note, consents and
agrees to the terms of each Collateral Agreement and the Intercreditor
Agreement, as the same may be in effect or may be amended from time to time in
accordance with its terms, and authorizes and directs the Collateral Agent to
enter into the Collateral Agreements and to perform its obligations and exercise
its rights thereunder in accordance therewith. The Issuers shall, and shall
cause each of their Subsidiaries to, do or cause to be done, at its sole cost
and expense, all such actions and things as may be necessary or proper, or as
may be required by the provisions of the Collateral Agreements, to assure and
confirm to the Trustee and the Collateral Agent the Security Interests in the
Collateral contemplated hereby and by the Collateral Agreements, as from time to
time constituted, so as to render the same available for the security and
benefit of this Indenture, of the Guarantees and of the Notes secured hereby,
according to the intent and purpose herein and therein expressed. The Issuers
shall, and shall cause each of their Subsidiaries to take any and all actions
required to cause the Collateral Agreements to create and maintain, as security
for the Obligations contained in this Indenture and the Notes, valid and
enforceable, perfected (except as expressly provided herein, therein or to the
extent applicable, in the Intercreditor Agreement) Security Interests in and on
all the Collateral, in favor of the Collateral Agent, superior to and prior to
the rights of all third Persons, and subject to no other Liens, in each case,
except as expressly provided herein, therein, or to the extent applicable, in
the Intercreditor Agreement.
Notwithstanding anything to the contrary in the preceding two
paragraphs, no provision thereof shall be construed to provide for the grant of
any Security Interest by the Dutch Issuer or any Foreign Guarantor in respect of
the Obligations of the U.S. Issuer under the U.S. Notes or the Indenture.
SECTION 10.02. Intercreditor Agreement. This Indenture and each
Collateral Agreement is to the extent applicable, subject to the terms,
limitations and conditions set forth in the Intercreditor Agreement. The Trustee
and each Holder of a Note, by its acceptance thereof, is deemed to have
authorized and instructed the Collateral Agent to enter into the Intercreditor
Agreement on its behalf and acknowledges HSBC Bank USA will act as the
Collateral Agent for the Trustee and the Holders under the Intercreditor
Agreement.
SECTION 10.03. Recording and Opinions. (a) The Issuers shall take or
cause to be taken all action required to perfect, maintain, preserve and protect
the Security Interests in the Collateral granted by the Collateral Agreements to
the extent set forth in such Collateral Agreement, subject to the Intercreditor
Agreement to the extent applicable. The Issuers shall from time to time promptly
pay all financing and continuation statement recording and/or filing fees,
charges and taxes relating to this Indenture, the Collateral Agreements, the
Intercreditor Agreement and any amendments hereto or thereto and any other
instruments of further assurance required pursuant hereto or thereto.
(b) The Issuers shall furnish to the Trustee and the Collateral
Agent (if other than the Trustee), on the Closing Date, at such time as required
by Section 314(b) of the TIA, and promptly after the execution and delivery of
any other instrument of further assurance or amendment granting, perfecting,
protecting, preserving or making effective a security interest pursuant to any
Collateral Agreement, an Opinion of Counsel either (i) stating that, in the
opinion of such counsel, this Indenture and the Collateral Agreements and
financing statements then executed and delivered, as applicable, and all other
instruments of further assurance or amendment then executed and delivered have
been properly recorded, registered and filed, and all certificates evidencing
capital stock pledged to the Trustee and the Holders under the Collateral
Agreements have been, subject to the terms of the Intercreditor Agreement to
79
the extent applicable and the Collateral Agreement delivered and duly endorsed
in blank, to the extent necessary to perfect the Security Interests created by
this Indenture and the Collateral Agreements and reciting the details of such
action or referring to prior Opinions of Counsel in which such details are
given, and stating that as to such Collateral Agreements and such other
instruments, such recording, registering, filing and delivery are the only
recordings, registerings, filings and deliveries necessary to perfect such
security interest and that no re-recordings, re-registerings, re-filings or
re-deliveries are necessary to maintain such perfection, and further stating
that all financing statements and continuation statements have been executed and
filed, and all such certificates have been delivered, that are necessary to
perfect such security interests of the Holders, the Trustee and the Collateral
Agent hereunder and under the Collateral Agreements or (ii) stating that, in the
Opinion of such Counsel, no such action is necessary to perfect any Security
Interest created under this Indenture, the Notes or any of the Collateral
Agreements as intended by this Indenture, the Notes and such Collateral
Agreements.
(c) Annually, within 30 days after June 1 and beginning with the
year 2005, the Issuers shall furnish to the Trustee and the Collateral Agent (if
other than the Trustee), one or more Opinions of Counsel, dated as of such date,
either (i) stating that: (A) in the opinion of such counsel, action has been
taken with respect to the registering, recording, filing, re-recording,
re-registering and refiling of financing statements, continuation statements and
other documents, and delivery of all certificates, as are then necessary to
perfect or continue the perfection of the Security Interests created by the
Collateral Agreements, subject to the terms of the Intercreditor Agreement to
the extent applicable and the Collateral Agreements and reciting the details of
such action or referring to prior Opinions of Counsel in which such details are
given; and (B) based on relevant laws as in effect on the date of such Opinion
of Counsel, all financing statements, continuation statements and other
documents have been executed (if necessary) and filed that are necessary as of
such date and during the succeeding 6 months fully to maintain, perfect or
continue the perfection of such Security Interests under the Collateral
Agreements with respect to the Collateral and to maintain, preserve, and protect
the rights of the Holders, the Collateral Agent and the Trustee hereunder and
under the Collateral Agreements or (ii) stating that, in the opinion of such
counsel, no such action is then necessary to perfect or continue the perfection
of such Security Interests.
SECTION 10.04. Release of Collateral. (a) Subject to the Intercreditor
Agreement to the extent applicable, the Collateral Agent shall not at any time
release Collateral from the Security Interests created by this Indenture and the
Collateral Agreements unless such release is in accordance with the provisions
of this Indenture and the applicable Collateral Agreements.
(b) Subject to the Intercreditor Agreement to the extent
applicable, at any time when a Default or an Event of Default shall have
occurred and be continuing, no release of Collateral pursuant to the provisions
of this Indenture and the Collateral Agreements shall be effective as against
any Secured Party.
(c) The release of any Collateral from the terms of the Collateral
Agreements shall not be deemed to impair the security under this Indenture in
contravention of the provisions hereof if and to the extent the Collateral is
released pursuant to this Indenture and the Collateral Agreements or to the
extent applicable, pursuant to the Intercreditor Agreement. To the extent
applicable, the Issuers shall cause Section 314(d) of the TIA relating to the
release of property from the Security Interests created by this Indenture and
the Collateral Agreements to be complied with. Any certificate or opinion
required by Section 314(d) of the TIA may be made by an Officer of the Issuers,
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 or approved by the
Trustee in the exercise of reasonable care. A Person is "independent" if such
Person (a) is in fact independent, (b) does not have any direct financial
interest or any material indirect financial interest in the Issuers or in any
Affiliate of the Issuers and (c) is not an officer, employee, promoter,
underwriter, trustee, partner or director or person
80
performing similar functions to any of the foregoing for the Issuers. The
Trustee and the Collateral Agent shall be entitled to receive and conclusively
rely upon a certificate provided by any such Person confirming that such Person
is independent within the foregoing definition.
(d) Notwithstanding anything contained in this Indenture to the
contrary, (i) the provisions of Section 10.04(c) of this Indenture will not be
applicable to any release or withdrawal of inventory, receivables and cash from
the Issuers' deposit accounts in the ordinary course of the Issuers' business
pursuant to the terms of the Collateral Agreements and (ii) the fair value of
inventory, receivables and cash from the Issuers' deposit accounts released
pursuant to this Section 10.04(d) need not be considered in determining whether
the aggregate fair value of inventory, receivables and cash from the Issuers'
deposit accounts released in any calendar year exceeds the 10% threshold
specified in Section 314(d)(1) of the TIA; provided, that the Issuers' right to
rely on this Section 10.04(d) will be conditioned upon the Issuers delivering to
the Trustee and the Collateral Agent, within 30 calendar days following the end
of each six-month period beginning on June 1 and December 1 of any year, an
Officers' Certificate to the effect that all such releases and withdrawals of
inventory, receivables and cash from the Issuers' deposit accounts during such
six-month period in respect of which the provisions of Section 10.04(c) were not
complied with were to make payments or investment in the ordinary course of the
company's business, which were not prohibited by this Indenture.
SECTION 10.05. Specified Releases of Collateral. (a) The Issuers shall
be entitled to obtain a full release of items of Collateral (the "Released
Interests") from the Security Interests created by this Indenture and the
Collateral Agreements upon compliance with the conditions precedent set forth in
Sections 4.16, 8.01 or 8.02 of this Indenture, the applicable Collateral
Agreements and to the extent applicable, the Intercreditor Agreement. So long as
no Default or Event of Default exists, upon the request of the Issuers and the
furnishing of each of the items required by Section 10.05(b), the Collateral
Agent upon the direction of the Trustee (or the Trustee if acting as Collateral
Agent) shall forthwith take all necessary action (at the request of and the
expense of the Issuers, without recourse or warranty and without any
representation of any kind), including the delivery of appropriate UCC-3
termination statements (and authorization to file such termination statements)
or any other filing required to be made, to release and reconvey to the Issuers
all of the Released Interests, and shall deliver such Released Interests in its
possession to the Issuers and the applicable Guarantors.
(b) So long as no Default or Event of Default exists, the Issuers
shall be entitled to obtain a release of, and the Collateral Agent shall
release, the Released Interests upon compliance with the condition precedent
that the Issuers shall have satisfied all applicable conditions precedent to any
such release set forth in this Indenture, the applicable Collateral Agreements
and to the extent applicable, the Intercreditor Agreement and shall have
delivered to the Trustee and the Collateral Agent the following, as applicable:
(i) in connection with release of Collateral resulting
from an Asset Sale under Section 4.16, written notice from the Company
requesting the release of the Released Interests: (A) describing the
proposed Released Interests; and (B) specifying the Fair Market Value
of such Released Interests on a date within 60 days of such notice (the
"Valuation Date");
(ii) in connection with release of Collateral resulting
from an Asset Sale under Section 4.16, an Officers' Certificate of the
Company certifying that: (A) such Asset Sale complies with the terms
and conditions of this Indenture with respect to such Asset Sale to the
extent such terms and conditions are required to be satisfied hereunder
either prior to or concurrent with the consummation of such Asset Sale;
(B) there is no Default or Event of Default in effect or continuing on
the date thereof or the date of such Asset Sale; (C) the release of the
Collateral will not result in a Default or Event of Default under this
Indenture; (D) the purchase
81
price received is at least equal to the Fair Market Value of the
Released Interests; (E) the release of such Released Interests would
not be expected to interfere in any material respect with the
Collateral Agent's ability to realize the value of the remaining
Collateral and will not impair in any material respect the maintenance
and operation of the remaining Collateral; and (F) all conditions
precedent in this Indenture relating to the release in question have
been or will be complied with; and
(iii) in connection with release of Collateral resulting
from an Asset Sale under Section 4.16, an Opinion of Counsel certifying
that all conditions precedent to the release of the Released Interests
have been met and that such release complies with the terms and
conditions of this Indenture, the applicable Collateral Agreements and
to the extent applicable, the Intercreditor Agreement.
(iv) all applicable certificates, opinions and other
documentation required by the TIA or this Indenture, if any.
Upon compliance by the Issuers with the conditions precedent set forth
above, the Collateral Agent shall cause to be released and reconveyed, without
recourse and without representation or warranty of any kind, to the Issuers, the
Released Interests.
(c) So long as no Default or Event of Default exists, the Issuers
shall be entitled to obtain a release of the Liens granted in favor of the
Collateral Agent for the benefit of itself, the Trustee and the Holders on
Collateral (including Collateral consisting of the Capital Stock of any
Restricted Subsidiary and any equipment that is obsolete or no longer useful in
the business of the applicable Issuer or Guarantor) and proceeds thereof that is
sold, conveyed or otherwise disposed of by the applicable Issuer or Guarantor
(including by way of a sale-and-leaseback) in the ordinary course of business,
whether in a single transaction or a series of related transactions, to any
Person (other than to the Company or any Guarantor) for Net Proceeds of $250,000
or less shall be subject to termination and release upon the consummation of any
such sale, conveyance or disposition.
(d) So long as no Default or Event of Default exists, and
notwithstanding any provision to the contrary in this Indenture, Collateral
comprised of accounts receivable, inventory or the proceeds of the foregoing
shall be subject to termination and release upon sales of such inventory and
collection of the proceeds of such receivables in the ordinary course of
business.
(e) Upon compliance by the Issuers with the conditions precedent
set forth in clauses (c) and (d) above, the Lien granted under the Collateral
Agreements on such items of Collateral shall terminate and be released
automatically and without any action by or on behalf of the Collateral Agent.
SECTION 10.06. Form and Sufficiency of Release. In the event that
either Issuer or any Guarantor has sold, exchanged, or otherwise disposed of or
proposes to sell, exchange or otherwise dispose of any portion of the Collateral
that may be sold, exchanged or otherwise disposed of by such Issuer or such
Guarantor, and such Issuer or such Guarantor, as the case may be, requests in
writing that the Collateral Agent furnish a written disclaimer, release or
quit-claim of any interest in such property under this Indenture and the
Collateral Agreements, the Collateral Agent shall execute, acknowledge and
deliver to such Issuer or such Guarantor (in proper form) such an instrument
promptly after satisfaction of the conditions set forth herein for delivery of
any such release. Notwithstanding the preceding sentence, all purchasers and
grantees of any property or rights purporting to be released herefrom shall be
entitled to rely upon any release executed by the Collateral Agent hereunder as
sufficient for the purpose of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
or of the Collateral Agreements.
82
SECTION 10.07. Purchaser Protected. No purchaser or grantee of any
property or rights purporting to be released herefrom shall be bound to
ascertain the authority of the Collateral Agent to execute the release or to
inquire as to the existence of any conditions herein prescribed for the exercise
of such authority; nor shall any purchaser or grantee of any property or rights
permitted by this Indenture to be sold or otherwise disposed of by either Issuer
or any Guarantor be under any obligation to ascertain or inquire into the
authority of such Issuer or such Guarantor to make such sale or other
disposition.
SECTION 10.08. Authorization of Actions To Be Taken by the Collateral
Agent Under the Collateral Agreements. Subject to the provisions of the
applicable Collateral Agreements and to the extent applicable, the Intercreditor
Agreement, the Trustee and each Holder, by acceptance of its Note(s), agrees
that (a) the Collateral Agent shall execute and deliver the Collateral
Agreements and the Intercreditor Agreement and act in accordance with the terms
thereof, (b) the Collateral Agent may, in its sole discretion and without the
consent of the Holders or the Trustee, take all actions they deem necessary or
appropriate in order to (i) enforce any of the terms of the Collateral
Agreements and (ii) collect and receive any and all amounts payable in respect
of the Obligations of either Issuer or any Guarantor hereunder or under any
Collateral Agreement, Note or Guarantee, and (c) the Collateral Agent shall have
power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any act that may be
unlawful or in violation of the Collateral Agreements or this Indenture, and
suits and proceedings as the Collateral Agent may deem expedient to preserve or
protect its interests and the interests of the Trustee and the Holders in the
Collateral (including the power to institute and maintain suits or proceedings
to restrain the enforcement of or compliance with any legislative or other
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 interest thereunder or be prejudicial to the interests
of the Holders, the Trustee or the Collateral Agent). Notwithstanding the
foregoing, the Collateral Agent may, at the expense of the Issuers, request the
direction of the Holders with respect to any such actions and upon receipt of
the written consent of the Holders of at least a majority in aggregate principal
amount of the outstanding Notes, shall take such actions; provided that all
actions so taken shall, at all times, be in conformity with the requirements of
the Intercreditor Agreement to the extent applicable.
SECTION 10.09. Authorization of Receipt of Funds by the Collateral
Agent Under the Collateral Agreements. The Collateral Agent is authorized to
receive any funds for the benefit of the Holders distributed under the
Collateral Agreements and the Intercreditor Agreement to the extent permitted or
provided under the Intercreditor Agreement, for turnover to the Trustee to make
further distributions of such funds to any Secured Party in accordance with the
provisions of Section 6.10 and the other provisions of this Indenture.
SECTION 10.10. Limitation on Duty of Collateral Agent in Respect of
Collateral; Indemnification. (a) Beyond the exercise of reasonable care in the
custody thereof, the Collateral Agent shall have no duty as to any Collateral in
their possession or control or in the possession or control of any agent or
bailee or any income thereon or as to preservation of rights against prior
parties or any other rights pertaining thereto and the Collateral Agent 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 Collateral Agent shall be deemed to have exercised
reasonable care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property and shall not be liable or responsible for any loss or
diminution in the value of any of the Collateral, by reason of the act or
omission of any carrier, forwarding agency or other agent or bailee selected by
the Collateral Agent in good faith.
(b) The Collateral Agent 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
83
Collateral, whether impaired by operation of law or by reason of any action or
omission to act on its part hereunder, except to the extent such action or
omission constitutes gross negligence or willful misconduct on the part of the
Collateral Agent, for the validity or sufficiency of the Collateral or any
agreement or assignment contained therein, for the validity of the title of
either Issuer or any Guarantor 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. The Collateral Agent shall
have no duty to ascertain or inquire as to the performance or observance of any
of the terms of this Indenture, any Collateral Agreement or the Intercreditor
Agreement.
SECTION 10.11. Rights of the Issuers and the Guarantors.
So long as no Event of Default has occurred and is continuing, and subject to
certain terms and conditions in this Indenture, the Intercreditor Agreement (to
the extent applicable) and the Collateral Agreements, each Issuer and each
Guarantor shall be entitled to receive all cash dividends, interest and other
payments made upon or with respect to the Capital Stock of any of its
Subsidiaries held as Collateral and to exercise any voting, consensual and other
rights pertaining to such Capital Stock. Upon the occurrence and during the
continuance of an Event of Default, upon notice from the Collateral Agent, (a)
all of the applicable Issuer's or Guarantor's rights to exercise such voting,
consensual or other rights shall cease and all such rights shall become vested
in the Collateral Agent, which, to the extent permitted by law, shall have the
sole right to exercise such voting, consensual or other rights, (b) all of
applicable Issuer's or Guarantor's rights to receive all cash dividends,
interest and other payments made upon or with respect to the Collateral shall
cease, and such cash dividends, interest and other payments shall be paid to the
Collateral Agent, and (c) the Collateral Agent may sell the Collateral or any
part thereof in accordance with the applicable Collateral Agreement. All funds
distributed under the Collateral Agreement by the Collateral Agent shall be
distributed by the Collateral Agent in accordance with Section 6.11 this
Indenture.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls. If any provision of this Indenture limits,
qualifies, or conflicts with another provision which is required to be included
in this Indenture by the TIA, the required provision shall control; provided,
however, that this Section 11.01 shall not of itself require that this Indenture
or the Trustee be qualified under the TIA or constitute any admission or
acknowledgment by any party hereto that any such qualification is required prior
to the time this Indenture and the Trustee are required by the TIA to be so
qualified.
SECTION 11.02. 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 telex, by telecopier or overnight courier guaranteeing
next-day delivery or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Issuers or any Guarantor:
PHIBRO ANIMAL HEALTH CORPORATION
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
84
with a copy to:
Golenbock Xxxxxxx Xxxxx Xxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxxx X. Xxxx, Esq.
if to the Trustee or Collateral Agent:
HSBC Bank USA
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000 000-0000
Attention: Issuer Services
Each of the Issuers, the Trustee or the Collateral Agent by written
notice to the other may designate additional or different addresses for notices
to such Person. Any notice or communication to the Issuers, the Trustee or the
Collateral Agent shall be deemed to have been given or made as of the date so
delivered if hand delivered; when answered back, if telexed; when receipt is
acknowledged, if faxed; and five (5) calendar days after mailing if sent by
registered or certified mail, postage prepaid (except that (i) the Trustee shall
not be deemed to have knowledge of such notice nor shall any time period within
which the Trustee is required to act as a result of such notice commence until
the Trustee actually receives the notice in question and (ii) a notice of change
of address 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 by first
class mail, certified or registered return receipt requested, or by overnight
courier guaranteeing next-day delivery to its address as it appears on the
registration books of the Registrar. Any notice or communication shall be mailed
to any Person as described in TIA ss. 313(c), to the extent required by the TIA.
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.
SECTION 11.03. Communications by Holders with Other Holders. Holders
may communicate pursuant to TIA ss. 312(b) with other Holders with respect to
their rights under this Indenture, the Units or the Notes. The Issuers, the
Trustee, the Registrar and any other Person shall have the protection of TIA ss.
312(c).
SECTION 11.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Issuers to the Trustee to take any action
under this Indenture, the Issuers shall if the Trustee shall so request furnish
to the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory
to the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed by the Issuers, if any, provided for in this Indenture
relating to the proposed action have been complied with; and/or
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent to be performed by the Issuers, if any,
provided for in this Indenture relating to the proposed
85
action have been complied with (which counsel, as to factual matters, may rely
on an Officers' Certificate).
SECTION 11.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture, other than the Officers' Certificate required by
Section 4.06, 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, he has made
such examination or investigation as is reasonably necessary to enable him 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; provided, however,
that with respect to such matters of fact an Opinion of Counsel may rely on an
Officers' Certificate or certificate of public officials, and provided, further,
that an Opinion of Counsel may have qualifications for opinions of the type
required.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar. The Trustee
may make reasonable rules in accordance with the Trustee's customary practices
for action by or at a meeting of Holders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. Legal Holidays. A "Legal Holiday" used with respect to a
particular place of payment is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or at such place of payment are not required
to be open. If a payment date is a Legal Holiday at such place, payment may be
made at such place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
SECTION 11.08. Governing Law. THIS INDENTURE, THE UNITS, THE NOTES, THE
GUARANTEES AND THE COMPANY GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.09. No Adverse Interpretation of Other Agreements. Indenture
may not be used to interpret another indenture, loan or debt agreement of the
Issuers or any of their Subsidiaries. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 11.10. No Personal Liability. No recourse for the payment of
the principal of, premium, if any, interest on, if any, with respect to any of
the Notes or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of either Issuer or
any Guarantor in this Indenture, the Guarantees, the Registration Rights
Agreement, the Company Guarantee or in any of the Units or Notes or because of
the creation of any Indebtedness represented thereby, shall be had against any
officer, employee, incorporator, direct or indirect controlling person,
shareholder, member, partner or Affiliate of the Issuers, the Guarantors or of
any successor
86
Person thereof, except to the extent any such Person is a party to any Guarantee
or Company Guarantee. Each Holder, by accepting the Units and the Notes, and the
Collateral Agent and the Trustee, waive and release all such liability.
SECTION 11.11. Successors. All agreements of the Issuers in this
Indenture and the Units and the Notes shall bind their successors. All
agreements of the Trustee in this Indenture shall bind its successors.
SECTION 11.12. Duplicate Originals. All parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together shall represent the same agreement.
SECTION 11.13. 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 11.14. Jurisdiction; Waiver of Jury Trial. EACH PARTY HERETO
HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF THE FEDERAL AND STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE; AND (II) WAIVES (A) ITS RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS INDENTURE, AND (B) ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
SECTION 11.15. English Language. This Indenture has been negotiated and
executed in the English language. All certificates, reports, notices and other
documents and communications given or delivered pursuant to this Indenture shall
be in the English language, or accompanied by a certified English translation
thereof. Except in the case of laws of, or official communications of, The
Netherlands or Belgium, in the case of any document originally issued in a
language other than English, the English language version of any such document
shall for purposes of this Indenture and absent manifest error, control the
meaning of the matters set forth therein.
SECTION 11.16. Service of Process. THE ISSUERS AND THE GUARANTORS EACH
DESIGNATE AND APPOINT PHIBRO ANIMAL HEALTH CORPORATION, WHOSE ADDRESS IS XXX
XXXXXX XXXXX, XXXX XXX, XXX XXXXXX 00000, IRREVOCABLY AGREEING IN WRITING TO
SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY ANY
ISSUER OR GUARANTOR, AS THE CASE MAY BE, TO BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
87
ARTICLE TWELVE
GUARANTEE OF NOTES
SECTION 12.01. Unconditional Guarantee. Each Guarantor and the U.S.
Issuer hereby fully and unconditionally guarantees on a senior secured basis
(each a "Guarantee" and, collectively, the "Guarantees"), jointly and severally,
to each Holder, the Collateral Agent and the Trustee, the full and prompt
performance of each Issuer's Obligations under the Indenture and the Notes;
provided, that the Guarantee of each Foreign Guarantor shall only be in respect
of the Dutch Notes and the other Obligations of the Dutch Issuer under the
Indenture and the Units and not in respect of the U.S. Notes or any other
Obligation of the U.S. Issuer and the Guarantee of the U.S. Issuer is solely in
respect of the Dutch Issuer's Obligations under the Indenture and the Dutch
Notes.
Each of the Guarantors and the U.S. Issuer hereby agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or this Indenture, the absence of any
action to enforce the same, any waiver or consent by any Holder of the Notes
with respect to any provisions hereof or thereof, any release of any other
Guarantor, the recovery of any judgment against the Issuers, any action to
enforce the same, whether or not a Guarantee or Company Guarantee is affixed to
any particular Note, or any other circumstance which might otherwise constitute
a legal or equitable discharge or defense of a guarantor. Each of the Guarantors
and the U.S. Issuer hereby waives the benefit of diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuers, any right to require a proceeding first against the
Issuers, protest, notice and all demands whatsoever and covenants that its
Guarantee or Company Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes, this Indenture, this
Guarantee and this Company Guarantee. This Guarantee and Company Guarantee is a
guarantee of payment and not of collection. If any Holder or the Trustee is
required by any court or otherwise to return to any Guarantor or to the U.S.
Issuer, or any custodian, trustee, liquidator or other similar official acting
in relation to such Guarantor or the U.S. Issuer, any amount paid by such
Guarantor or the U.S. Issuer to the Trustee or such Holder, the Obligations of
such Guarantor or the U.S. Issuer, as applicable, under this Section 12.01 to
the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor and the U.S. Issuer further agrees that, as between it, on the
one hand, and the Holders, the Collateral Agent and the Trustee, on the other
hand, (a) subject to this Article Twelve, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six hereof for the
purposes of this Section 12.01, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Six hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors and the U.S.
Issuer for the purpose of this Section 12.01.
No director, officer, employee, incorporator, direct or indirect
controlling person, stockholder, member, partner or affiliate, as such, of any
Guarantor or the U.S. Issuer, or any successor entity, as such, shall have any
liability for any obligations of such Guarantor or the U.S. Issuer under the
Notes, this Indenture, the Guarantees or the Registration Rights Agreement or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes by accepting a Note, the Collateral Agent
and the Trustee, waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
If any Guarantor or the U.S. Issuer that makes a payment or
distribution under this Section 12.01, such Guarantor or the U.S. Issuer, as the
case may be, shall be entitled to a contribution from each other Guarantor in an
amount pro rata, based on the net assets of each Guarantor, determined in
accordance with GAAP; provided, however, that no Domestic Guarantor shall be
entitled to any contribution from
88
any Foreign Guarantor to the extent such payment or distribution was in respect
the Obligations of the U.S. Issuer under the U.S. Notes or the Indenture.
SECTION 12.02. Limitations on Guarantees. The obligations of each
Domestic Guarantor under Section 12.01 will be limited to the maximum amount
which, after giving effect to all other contingent and fixed liabilities of such
Domestic Guarantor and after giving effect to any collections from or payments
made by or on behalf of any other Domestic Guarantor or the U.S. Issuer in
respect of the obligations of such other Domestic Guarantor under its Guarantee
or pursuant to its contribution obligations under this Indenture, will result in
the obligations of such Domestic Guarantor under Section 12.01, as applicable,
not constituting a fraudulent conveyance or fraudulent transfer under federal or
state law.
SECTION 12.03. Execution and Delivery of Guarantee. To further evidence
their respective guarantees set forth in Section 12.01, each Guarantor and the
U.S. Issuer hereby agrees that a notation of such guarantee, substantially in
the form of Exhibit E, Exhibit F or Exhibit G, hereto, as applicable, and shall
be endorsed on each Note authenticated and delivered by the Trustee; provided
that no Foreign Guarantor shall execute a guarantee to be affixed to the U.S.
Notes. Such Guarantee or Company Guarantee shall be executed on behalf of each
Guarantor and the U.S. Issuer by either manual or facsimile signature of two
Officers, or an Officer and an Assistant Secretary, of each Guarantor or the
U.S. Issuer, each of whom, in each case, shall have been duly authorized to so
execute by all requisite corporate or other action. The validity and
enforceability of any Guarantee or the Company Guarantee shall not be affected
by the fact that it is not affixed to any particular Note.
Each of the Guarantors and the U.S. Issuer hereby agrees that its
guarantee set forth in Section 12.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Guarantee
or Company Guarantee.
If an Officer of a Guarantor or the U.S. Issuer whose signature is on
this Indenture, Guarantee or Company Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which such Guarantee is endorsed
or at any time thereafter, such Guarantor's Guarantee of such Note or the U.S.
Issuers' Company Guarantee of such Note, as applicable, shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee or Company
Guarantee set forth in this Indenture on behalf of each Guarantor or the U.S.
Issuer.
SECTION 12.04. Release of a Guarantor.
(a) So long as no Event of Default shall have occurred and be
continuing, upon (i) (A) the sale or disposition (whether by merger, stock
purchase, asset or sale or otherwise) of a Guarantor (or all or substantially
all of the assets of any such Guarantor or all of the Capital Stock of any such
Guarantor) to an entity which is not a Subsidiary of the Company or (B) such
Guarantor ceases to be a Restricted Subsidiary, and the satisfaction, in each
case, to the extent applicable, of the provisions of Section 4.16 that are
required to be satisfied thereunder either prior to or concurrent with the
consummation of the applicable transaction; (ii) the designation by the Company
of such Guarantor as an Unrestricted Subsidiary in accordance with the
provisions of Section 4.10 above; (iii) upon satisfaction and discharge of the
Indenture or payment in full of the principal of, premium, if any, accrued and
unpaid interest, if any, on the Notes and all other Obligations that are then
due and payable, such Guarantor or the U.S. Issuer with respect to the Company
Guarantee shall be deemed released from all its obligations under its Guarantee
of the Notes and the Indenture or the Company Guarantee, as applicable, or (iv)
in the case of any Foreign Guarantor or the U.S. Issuer with respect to the
Company Guarantee, upon payment in full of
89
the principal of, premium, if any, accrued and unpaid interest, if any, on the
Dutch Notes and all other Obligations of the Dutch Issuer that are then due and
payable, such Foreign Guarantor or the U.S. Issuer, as the case may be, shall be
deemed released from all its Obligations under its Foreign Guarantee of the
Dutch Notes and the Indenture or the Company Guarantee, as applicable. Upon the
release of any Guarantor or the U.S. Issuer, as the case may be, from its
Guarantee or the Company Guarantee, as applicable, pursuant to the provisions of
the Indenture, each other Guarantor not so released shall remain liable for the
full amount of principal of, premium, if any, and interest, if any, on, the
Notes as and to the extent provided in the Indenture.
(b) Upon delivery by the Company to the Collateral Agent and the
Trustee of an opinion of counsel to the effect that the conditions described in
the immediately preceding paragraph have been met, the Collateral Agent shall,
at the sole cost and expense of the Company, execute and deliver to the Company
such documents, without any representation, warranty or recourse of any kind
whatsoever, as the Company shall reasonably request to evidence such release..
SECTION 12.05. Postponement of Subrogation. Until this Indenture is
discharged and all of the Notes are discharged and paid in full, each Guarantor
and the U.S. Issuer hereby irrevocably waives and agrees not to exercise any
claim or other rights which it may now or hereafter acquire against the Issuers
that arise from the existence, payment, performance or enforcement of the
Issuers' obligations under the Notes or this Indenture and such Guarantor's
obligations under this Guarantee and this Indenture, and the U.S. Issuer's
obligations under this Company Guarantee, in any such instance including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution, indemnification, and any right to participate in any claim or
remedy of the Holders against the Issuers, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Issuers, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor or the U.S. Issuer in violation of the preceding
sentence and any amounts owing to the Trustee or the Holders of Notes under the
Notes, this Indenture, or any other document or instrument delivered under or in
connection with such agreements or instruments, shall not have been paid in
full, such amount shall have been deemed to have been paid to such Guarantor or
the U.S. Issuer, as applicable, for the benefit of, and held in trust for the
benefit of, the Trustee or the Holders and shall forthwith be paid to the
Trustee for the benefit of itself or such Holders to be credited and applied to
the obligations in favor of the Trustee or the Holders, as the case may be,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Guarantor and the U.S. Issuer acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated by this Indenture
and that the waiver set forth in this Section 12.05 is knowingly made in
contemplation of such benefits.
SECTION 12.06. No Set-Off. Each payment to be made by a Guarantor and
the U.S. Issuer hereunder in respect of its obligations hereunder shall be
payable in the currency or currencies in which such obligations are denominated,
and shall be made without set-off, counterclaim, reduction or diminution of any
kind or nature.
SECTION 12.07. Obligations Absolute. Except as otherwise provided in
this Indenture, the obligations of each Guarantor and the U.S. Issuer hereunder
are and shall be absolute and unconditional and any monies or amounts expressed
to be owing or payable by each Guarantor and the U.S. Issuer hereunder which may
not be recoverable from such Guarantor or the U.S. Issuer on the basis of a
Guarantee or the Company Guarantee shall be recoverable from such Guarantor or
the U.S. Issuer as a primary obligor and principal debtor in respect thereof.
SECTION 12.08. Obligations Continuing. Except as otherwise provided in
this Indenture, the obligations of each Guarantor and the U.S. Issuer hereunder
shall be continuing and shall remain in full
90
force and effect until all the obligations have been paid and satisfied in full.
Each Guarantor and the U.S. Issuer agrees with the Trustee that, if requested,
it will from time to time deliver to the Trustee suitable acknowledgments of
this continued liability hereunder and under any other instrument or instruments
in such form as counsel to the Trustee may advise and as will prevent any action
brought against it in respect of any default hereunder being barred by any
statute of limitations now or hereafter in force and, in the event of the
failure of a Guarantor or the U.S. Issuer so to do, it hereby irrevocably
appoints the Trustee the attorney and agent of such Guarantor or the U.S. Issuer
to make, execute and deliver such written acknowledgment or acknowledgments or
other instruments as may from time to time become necessary or advisable, in the
judgment of the Trustee on the advice of counsel, to fully maintain and keep in
force the liability of such Guarantor or the U.S. Issuer hereunder.
SECTION 12.09. Obligations Not Reduced. The obligations of each
Guarantor and the U.S. Issuer hereunder shall not be satisfied, reduced or
discharged solely by the payment of such principal, premium, if any, interest,
fees and other monies or amounts as may at any time prior to discharge of this
Indenture pursuant to Article Eight be or become owing or payable under or by
virtue of or otherwise in connection with the Notes or this Indenture.
SECTION 12.10. Obligations Reinstated. The obligations of each
Guarantor and the U.S. Issuer hereunder shall continue to be effective or shall
be reinstated, as the case may be, if at any time any payment which would
otherwise have reduced the obligations of any Guarantor or the U.S. Issuer
hereunder (whether such payment shall have been made by or on behalf of the
Issuers or by or on behalf of a Guarantor or the U.S. Issuer) is rescinded or
reclaimed from any of the Holders upon the insolvency, bankruptcy, liquidation
or reorganization of either Issuer or any Guarantor or otherwise, all as though
such payment had not been made. If demand for, or acceleration of the time for,
payment by the Issuers is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Issuers, all such Indebtedness otherwise subject to demand
for payment or acceleration shall nonetheless be payable by each Guarantor or
the U.S. Issuer as provided herein.
SECTION 12.11. Obligations Not Affected. Except as otherwise provided
in this Indenture, the obligations of each Guarantor and the U.S. Issuer
hereunder shall not be affected, impaired or diminished in any way by any act,
omission, matter or thing whatsoever, occurring before, upon or after any demand
for payment hereunder (and whether or not known or consented to by any
Guarantor, the U.S. Issuer or any of the Holders) which, but for this provision,
might constitute a whole or partial defense to a claim against any Guarantor or
the U.S. Issuer hereunder or might operate to release or otherwise exonerate any
Guarantor or the U.S. Issuer from any of its obligations hereunder or otherwise
affect such obligations, whether occasioned by default of any of the Holders or
otherwise, including, without limitation:
(a) any limitation of status or power, disability,
incapacity or other circumstance relating to the Issuers or any other
person, including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding up or
other proceeding involving or affecting the Issuers or any other
person;
(b) any irregularity, defect, unenforceability or
invalidity in respect of any Indebtedness or other obligation of the
Issuers or any other person under this Indenture, the Notes or any
other document or instrument;
(c) any failure of the Issuers, whether or not without
fault on its part, to perform or comply with any of the provisions of
this Indenture or the Notes, or to give notice thereof to a Guarantor;
91
(d) the taking or enforcing or exercising or the refusal
or neglect to take or enforce or exercise any right or remedy from or
against the Issuers or any other Person or their respective assets or
the release or discharge of any such right or remedy;
(e) the granting of time, renewals, extensions,
compromises, concessions, waivers, releases, discharges and other
indulgences to the Issuers or any other Person;
(f) any change in the time, manner or place of payment
of, or in any other term of, any of the Notes, or any other amendment,
variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Notes or this Indenture, including, without
limitation, any increase or decrease in the principal amount of or
premium, if any, or interest on any of the Notes;
(g) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Issuers or
a Guarantor;
(h) any merger, consolidation or amalgamation of the
Issuers or a Guarantor with any Person or Persons;
(i) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any present or future
action of any governmental authority or court amending, varying,
reducing or otherwise affecting, or purporting to amend, vary, reduce
or otherwise affect, any of the obligations under the Notes and this
Indenture or the obligations of a Guarantor under its Guarantee; and
(j) any other circumstance (other than by complete,
irrevocable payment or a release made pursuant to Section 12.04) that
might otherwise constitute a legal or equitable discharge or defense of
the Issuers under this Indenture or the Notes or of a Guarantor in
respect of its Guarantee hereunder.
SECTION 12.12. Waiver. Without in any way limiting the provisions of
Section 12.01 hereof, each Guarantor hereby waives notice of acceptance hereof,
notice of any liability of any Guarantor hereunder, notice or proof of reliance
by the Holders upon the obligations of any Guarantor hereunder, and diligence,
presentment, demand for payment on the Issuers, protest, notice of dishonor or
non-payment of any of the obligations under the Notes or this Indenture, or
other notice or formalities to the Issuers or any Guarantor of any kind
whatsoever.
SECTION 12.13. No Obligation to Take Action Against the Issuers.
Neither the Trustee nor any other Person (including, without limitation, the
Collateral Agent) shall have any obligation to enforce or exhaust any rights or
remedies or to take any other steps under any security for the obligations under
the Notes or this Indenture or against the Issuers or any other Person or any
property of the Issuers or any other Person before the Trustee is entitled to
demand payment and performance by any or all Guarantors and/or the U.S. Issuer
of their liabilities and obligations under their Guarantees, its Company
Guarantee or under this Indenture, as applicable.
SECTION 12.14. Dealing with the Issuers and Others. The Holders,
without releasing, discharging, limiting or otherwise affecting in whole or in
part the obligations and liabilities of any Guarantor or the U.S. Issuer
hereunder and without the consent of or notice to any Guarantor or the U.S.
Issuer, may
92
(a) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Issuers or any other Person;
(b) take or abstain from taking security or collateral
from the Issuers or from perfecting security or collateral of the
Issuers;
(c) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or
without consideration) any and all collateral, mortgages or other
security given by the Issuers or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;
(d) accept compromises or arrangements from the Issuers;
(e) apply all monies at any time received from the
Issuers or from any security upon such part of the obligations under
the Notes or this Indenture as the Holders may see fit or change any
such application in whole or in part from time to time as the Holders
may see fit; and
(f) otherwise deal with, or waive or modify their right
to deal with, the Issuers and all other Persons and any security as the
Holders or the Trustee may see fit.
SECTION 12.15. Default and Enforcement. If any Guarantor or the U.S.
Issuer fails to pay in accordance with Section 12.01 hereof, the Trustee may
proceed in its name as trustee hereunder in the enforcement of the Guarantee of
any such Guarantor or the Company Guarantee of the U.S. Issuer and such
Guarantor's or U.S. Issuers' obligations thereunder and hereunder by any remedy
provided by law, whether by legal proceedings or otherwise, and to recover from
such Guarantor or the U.S. Issuer the obligations.
SECTION 12.16. Amendment, Etc. No amendment, modification or waiver of
any provision of this Indenture relating to any Guarantor or the U.S. Issuer or
consent to any departure by any Guarantor, the U.S. Issuer or any other Person
from any such provision will in any event be effective unless it is signed by
such Guarantor, the U.S. Issuer and the Trustee.
SECTION 12.17. Acknowledgment. Each Guarantor and the U.S. Issuer
hereby acknowledges communication of the terms of this Indenture and the Notes
and consents to and approves of the same.
SECTION 12.18. Costs and Expenses. Each Guarantor and the U.S. Issuer
shall pay on demand by the Trustee any and all costs, fees and expenses
(including, without limitation, legal fees) incurred by the Trustee, its agents,
advisors and counsel or any of the Holders in enforcing any of their rights
under any Guarantee or the Company Guarantee in the same manner as the Issuers
shall be requested to pay the Trustee's fees.
SECTION 12.19. No Merger or Waiver; Cumulative Remedies. No Guarantee
or Company Guarantee, as applicable shall operate by way of merger of any of the
obligations of a Guarantor or the U.S. Issuer under any other agreement,
including, without limitation, this Indenture. No failure to exercise and no
delay in exercising, on the part of the Trustee or the Holders, any right,
remedy, power or privilege hereunder or under this Indenture or the Notes, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder or under this Indenture or the Notes
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
in the Guarantee, the Company Guarantee and under this Indenture, the Notes and
any other document or instrument between a Guarantor or the U.S.
93
Issuer and/or the Issuers and the Trustee are cumulative and not exclusive of
any rights, remedies, powers and privileges provided by law.
SECTION 12.20. Survival of Obligations. Without prejudice to the
survival of any of the other obligations of each Guarantor and the U.S. Issuer
hereunder, the obligations of each Guarantor and the U.S. Issuer under Section
12.01 shall survive the payment in full of the obligations under this Indenture
and the Notes and shall be enforceable against such Guarantor or the U.S. Issuer
without regard to and without giving effect to any defense, right of offset or
counterclaim available to or which may be asserted by either Issuer or any
Guarantor.
SECTION 12.21. Guarantee in Addition to Other Obligations. The
obligations of each Guarantor under its Guarantee, the U.S. Issuer under its
Company Guarantee and this Indenture are in addition to and not in substitution
for any other obligations to the Trustee or to any of the Holders in relation to
this Indenture or the Notes and any guarantees or security at any time held by
or for the benefit of any of them.
SECTION 12.22. Severability. Any provision of this Article Twelve which
is prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction unless its removal would substantially defeat the basic
intent, spirit and purpose of this Indenture and this Article Twelve.
SECTION 12.23. Successors and Assigns. Each Guarantee and the Company
Guarantee shall be binding upon and inure to the benefit of each Guarantor or
the U.S. Issuer and the Trustee and the other Holders and their respective
successors and permitted assigns, except that no Guarantor or the U.S. Issuer
may assign any of its obligations hereunder or thereunder other than as
otherwise provided herein.
94
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the date first written above.
PHIBRO ANIMAL HEALTH CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
PHILIPP BROTHERS NETHERLANDS III B.V.
By Philipp Brothers Netherlands II B.V.
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Managing Director
DOMESTIC GUARANTORS:
PRINCE AGRIPRODUCTS, INC.
PHIBROCHEM, INC.
PHIBRO ANIMAL HEALTH HOLDINGS, INC.
PHIBRO CHEMICALS, INC.
WESTERN MAGNESIUM CORP.
C P CHEMICALS, INC.
PHIBRO-TECH, INC.
PHIBRO ANIMAL HEALTH U.S., INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FOREIGN GUARANTORS:
PHIBRO ANIMAL HEALTH (BELGIUM) SPRL
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Manager
Accepted and Agreed to:
HSBC BANK USA
By: /s/ Herawattee Alli
-------------------------------
Name: Herawattee Alli
Title: Corporate Trust Officer
S-2
EXHIBIT A
[FACE OF INITIAL UNIT]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH PHIBRO ANIMAL HEALTH CORPORATION OR
ANY AFFILIATE OF PHIBRO ANIMAL HEALTH CORPORATION WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO PHIBRO ANIMAL HEALTH
CORPORATION OR ANY OF ITS SUBSIDIARIES, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 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, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO PHIBRO ANIMAL HEALTH CORPORATION'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FORGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS
A-1
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, ITS NOMINEES AND
THEIR RESPECTIVE SUCCESSORS (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY,
OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF
SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DEPOSITORY TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL UNIT SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL UNIT SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
A-2
PHIBRO ANIMAL HEALTH CORPORATION
AND
PHILIPP BROTHERS NETHERLANDS III B.V.
105,000 Units
Each Unit Consisting of
$809.5238095 Principal Amount of 13% Senior Secured Notes Due 2007
of Phibro Animal Health Corporation
and $190.4761905 Principal Amount of 13% Senior Secured Notes Due 2007
of Philipp Brothers Netherlands III B.V.
No. ___
CUSIP No. _________ Certificate for _______ Units
Each of Phibro Animal Health Corporation, a New York
corporation (the "Company"), which term includes any successor corporation, and
Philipp Brothers Netherlands III B.V., a Dutch private company with limited
liability and an indirect wholly owned subsidiary of the Company ("Dutch
Issuer"), which term includes any successor company, hereby certifies that [ ]
is the owner of [ ] Units as described above, transferable only on the books of
the Company and Dutch Issuer by the Holder thereof in person or by his or her
duly authorized attorney on surrender of this Certificate properly endorsed.
Each Unit consists of $809.5238095 principal amount of 13% Senior Secured Notes
due 2007 of the Company (the "U.S. Notes") and $190.4761905 principal amount of
13% Senior Secured Notes due 2007 of Dutch Issuer (the "Dutch Notes" and,
together with the U.S. Notes, the "Notes"). This Unit is issued pursuant to the
Indenture, dated as of October 21, 2003 among the Company, Dutch Issuer, the
Guarantors and HSBC Bank USA, as Trustee and Collateral Agent, (the "Indenture")
and is subject to the terms and provisions contained therein, to all of which
terms and provisions the Holder of this Unit Certificate consents by acceptance
hereof. The terms of the Notes, the Guarantees and the Company Guarantee are
governed by the Indenture, and are subject to the terms and provisions contained
therein, to all of which terms and provisions the Holder of this Unit
Certificate consents by acceptance hereof.
Reference is made to the further provisions of this Unit
Certificate contained herein, which will for all purposes have the same effect
as if set forth at this place. Copies of the Indenture are on file at the office
of the Company and Dutch Issuer and are available to any Holder on written
request and without cost.
The Notes will not trade separately unless (i) an event of
default on the Notes has occurred, (ii) a tax redemption of the Dutch Notes
pursuant to Section 3.03(d) of the Indenture has occurred, or (iii) the
occurrence of a Change of Control of Dutch Issuer.
The Indenture, this Unit and the Notes shall be governed by
and construed in accordance with the laws of the State of New York.
All terms used in this Unit which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-3
IN WITNESS WHEREOF, the Company and Dutch Issuer have caused
this Unit to be signed manually or by facsimile by one of its duly authorized
officers.
PHIBRO ANIMAL HEALTH CORPORATION
By:___________________________
Name:
Title:
PHILIPP BROTHERS NETHERLANDS III B.V.
By: Philipp Brothers Netherlands II B.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
A-4
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The HSBC Bank USA, as Trustee, certifies that this is one of
the Units referred to in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By:_____________________________________
Authorized Signatory
Date of Authentication:
A-5
ASSIGNMENT FORM
If you the Holder want to assign this Unit, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Unit to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this Unit on the books of the Company and Dutch Issuer. The
agent may substitute another to act for him.
Dated: ______________________ Signed: __________________________________
(Sign exactly as your name appears
on the other side of this Unit)
Signature Guarantee: __________________________
A-6
[FACE OF INITIAL U.S. NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH PHIBRO ANIMAL HEALTH CORPORATION OR
ANY AFFILIATE OF PHIBRO ANIMAL HEALTH CORPORATION WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO PHIBRO ANIMAL HEALTH
CORPORATION OR ANY OF ITS SUBSIDIARIES, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 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, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO PHIBRO ANIMAL HEALTH CORPORATION'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FORGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
A-7
WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, ITS NOMINEES AND
THEIR RESPECTIVE SUCCESSORS (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY,
OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF
SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DEPOSITORY TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
A-8
PHIBRO ANIMAL HEALTH CORPORATION
13% Senior Secured Notes Due 2007
No. Q-1 $
CUSIP No.
PHIBRO ANIMAL HEALTH CORPORATION, a New York corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum of $85,
000,000 Dollars on December 1, 2007.
Interest Rate: 13.0%
Interest Payment Dates: June 1 and December 1, commencing
December 1, 2003.
Record Dates: May 15 and November 15.
Additional provisions of this Note are set forth on the
reverse side of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
PHIBRO ANIMAL HEALTH CORPORATION
By: ____________________________________
Name:
Title:
A-9
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The HSBC Bank USA, as Trustee, certifies that this is one of
the U.S. Notes referred to in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By: ____________________________________
Authorized Signatory
Date of Authentication:
A-10
[REVERSE OF INITIAL U.S. NOTE]
13% SENIOR SECURED NOTE DUE 2007
1. Separable.
This U.S. Note, together with the 13% Senior Secured Note due
2007 of Philipp Brothers Netherlands III B.V. ("Dutch Issuer") (the "Dutch
Note"), comprise a unit (each a "Unit"). The U.S. Notes and Dutch Notes are
collectively referred to in this Note as the "Notes." The Notes will not trade
separately unless (i) an event of default on the Notes has occurred, (ii) a
redemption of the Dutch Notes pursuant to Section 3.03(d) of the Indenture has
occurred, or (iii) the occurrence of a Change of Control of Dutch Issuer.
2. Interest.
PHIBRO ANIMAL HEALTH CORPORATION, a New York corporation (such
entity, and its successors and assigns under the Indenture hereinafter referred
to, and each other entity which is required to become the Company pursuant to
the Indenture, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay interest on the principal amount of this
U.S. Note at the rate per annum shown above. The Company will pay interest
semi-annually on June 1 and December 1 of each year, commencing December 1,
2003. Interest on the U.S. Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from October 21, 2003.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. 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) from time to time on demand at 1% per annum in excess
of the rate borne by the U.S. Notes.
3. Method of Payment.
The Company will pay interest on the U.S. Notes (except
defaulted interest) to the Persons who are registered Holders of U.S. Notes at
the close of business on the Record Date immediately preceding the Interest
Payment Date even if U.S. Notes are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement)) after the Record Date. Holders must
surrender U.S. Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder's registered address.
4. Paying Agent and Registrar.
Initially, HSBC Bank USA, a New York banking corporation
("Trustee"), will act as Paying Agent and Registrar. The Issuers and any of
their Subsidiaries may appoint and
A-11
change any Paying Agent, Registrar or co-Registrar without notice. The Company
may act as Paying Agent, Registrar, co-Registrar or transfer agent.
5. Indenture.
The Company issued the U.S. Notes under an Indenture dated as
of October 21 , 2003 (the "Indenture"), among the Issuers, the Guarantors, the
Trustee and the Collateral Agent. This U.S. Note is one of a duly authorized
issue of Initial U.S. Notes of the Company designated as its 13% Senior Secured
Notes due 2007 (the "Initial U.S. Notes"). The U.S. Notes include the Initial
U.S. Notes and the Exchange U.S. Notes issued in exchange for the Initial U.S.
Notes pursuant to the Registration Rights Agreement. The Initial U.S. Notes, the
Exchange U.S. Notes, the Initial Dutch Notes and the Exchange Dutch Notes are
treated as a single class of securities under the Indenture. The terms of the
U.S. 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.C. Section
77aaa-77bbbb) as in effect and amended, on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The U.S. Notes are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of those
terms. Any conflict between this U.S. Note and the Indenture will be governed by
the Indenture.
6. Redemption.
(a) Optional Redemption Prior to June 1, 2005. At any
time prior to June 1, 2005, the Issuers may, at their option, on one or more
occasions redeem all or part of their Notes at a redemption price equal to the
greater of (1) 100% of the aggregate principal amount of the Notes being
redeemed and (2) the sum of the present values of 114% of the aggregate
principal amount of the Notes being redeemed and scheduled payments of interest
on such Notes to and including June 1, 2005 discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points, together with, in each case,
accrued and unpaid interest, if any, to the date of redemption. The foregoing
optional redemption of the Notes prior to June 1, 2005 shall include both U.S.
Notes and Dutch Notes on a pro rata basis based on the aggregate principal
amount of the Notes outstanding at the time of redemption, unless a Change in
Control of the Dutch Issuer has occurred.
(i) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption period.
(ii) "Comparable Treasury Issue" means the United
States Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of the Notes
(as if the final maturity of the Notes was June 1, 2005) that would be utilized
at the time of selection and in accordance with customary financial practice in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes (as if the final maturity of the Notes was June 1,
2005).
A-12
(iii) "Comparable Treasury Price" means, with
respect to any redemption date, (1) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
(iv) "Reference Treasury Dealer Quotation" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Issuers by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
(v) "Reference Treasury Dealer" means any
primary U.S. government securities dealer in the City of New York selected by
the Issuers.
(b) Optional Redemption on or after June 1, 2005. The
Notes are redeemable at the option of the Issuers, in whole or in part, at any
time on or after June 1, 2005 at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below plus in each case accrued
and unpaid interest and Additional Interest, if any, to the date of redemption,
if redeemed during the six-month period beginning on the dates indicated below:
Period Percentage
------ ----------
June 1, 2005.................................................. 114.0%
December 1, 2005.............................................. 109.0%
June 1, 2006.................................................. 105.0%
December 1, 2006 and thereafter............................... 101.0%
The foregoing optional redemption of the Notes on or after June l, 2005
shall include both U.S. Notes and Dutch Notes on a pro rata basis based on the
aggregate principal amount of the Notes outstanding at the time of redemption,
unless a Change of Control of the Dutch Issuer has occurred.
(c) Redemption Upon Equity Offering. In addition, at any
time and from time to time prior to June 1, 2005, the Issuers may redeem at
their option in the aggregate up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes issued in the Offering and (ii) the respective
initial aggregate principal amount of the Notes issued under the Indenture after
the Issue Date, on one or more of the occasions with the net proceeds of one or
more Public Equity Offerings at 113.0% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, that
A-13
immediately after giving effect to such redemption, at least 65% of the sum of
(i) $105.0 million (the initial aggregate principal amount of the Notes issued
in the Offering) and (ii) the respective initial aggregate principal amount of
the Notes issued under the Indenture after the Issue Date remain outstanding
(other than any Notes owned by the Company or any of its Affiliates). In order
to effect the foregoing redemption with the proceeds of any Public Equity
Offering, we will make such redemption not more than 90 days after the
consummation of any such Public Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, 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 Issuers
default in the payment of such Redemption Price plus accrued interest, if any,
the Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued interest, if any.
Unless the Issuers fail to comply with the preceding paragraph
and defaults in the payment of such Redemption Price plus accrued interest, if
any, interest 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.
8. Offers to Purchase.
Sections 4.15, 4.16 and 4.24 of the Indenture provide that
upon the occurrence of a Change of Control of the Company, after certain Asset
Sales, and upon the Company having Excess Cash Flow, and subject to further
limitations contained therein, the Company and Dutch Issuer will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. The Registration Rights Agreement.
Pursuant to the Registration Rights Agreement among the
Issuers, the Guarantors and the Holders of the Initial U.S. Notes, the Company
has made certain covenants as set forth therein with respect to consummation of
an Exchange Offer (as defined in the Registration Rights Agreement). Upon such
exchange offering, the Holders of U.S. Notes shall have the right, subject to
compliance with securities laws, to exchange such U.S. Notes for 13% Senior
Secured U.S. Notes due 2007, which have been registered under the Securities Act
(the "Exchange U.S. Notes"), identical in all material respects to the U.S.
Notes, including the guarantees endorsed thereon, except for restrictive legends
and additional interest provisions. The Holders of the Initial U.S. Notes shall
be entitled to receive certain Additional Interest in the
A-14
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
10. Denominations.
The U.S. Notes are in registered form, without coupons, and in
denominations of $809.5238095 and integral multiples thereof.
11. Persons Deemed Owners.
The registered Holder of this U.S. Note may be treated as the
owner of it for all purposes.
12. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the U.S. Notes and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the U.S. Notes to redemption or
maturity, as the case may be.
14. Amendment, Waiver.
Subject to Section 6.07 of the Indenture, the Issuers, when
authorized by a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal
amount of the then outstanding U.S. Notes (including consents obtained in
connection with a tender offer or exchange offer for the U.S. Notes), may amend
or supplement the Indenture or the U.S. Notes without notice to any other
Holder. Subject to Section 6.02 and 6.07 of the Indenture, the Holder or Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Issuers with any provision of the
Indenture or the U.S. Notes without notice to any other Holder. Subject to
certain exceptions set forth in the Indenture, the Issuers, when authorized by a
Board Resolution, and the Trustee, together, may amend or supplement the
Indenture or the U.S. Notes without notice to or consent of any Holder in order
to cure any ambiguity, defect or inconsistency, provide for uncertificated U.S.
Notes in addition to or in place of certificated U.S. Notes; provide for the
assumption of either Issuer's Obligations to Holders in the event of any
Disposition involving such Issuer in which such Issuer is not the Surviving
Person, make any change that would provide any additional rights or benefits to
the Holders or that does not adversely affect the rights of any such Holder;
release any Guarantor from its Guarantee and the Indenture or the U.S. Issuer
with respect to the Company Guarantee from the Company Guarantee that is
permitted to be released under the Indenture in accordance with the terms
A-15
thereof; or comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of U.S. Notes and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, interest on, if any, with respect to any of the U.S. Notes or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture, the
Guarantees, the Registration Rights Agreement, the Company Guarantee or in any
of the Units or U.S. Notes or because of the creation of any Indebtedness
represented thereby, shall be had against any officer, employee, incorporator,
direct or indirect controlling person, shareholder, member, partner or Affiliate
of the Company, the Guarantors or of any successor Person thereof, except to the
extent any such Person is a party to any Guarantee or Company Guarantee. Each
Holder, by accepting the Units and the U.S. Notes, waives and releases all such
liability.
17. Guarantees.
This U.S. Note will be entitled to the benefits of certain
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Company, the Guarantors, the
Trustee and the Holders.
18. Governing Law.
THE INDENTURE AND THE U.S. NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO AND THE HOLDERS (BY THEIR
ACCEPTANCE OF A U.S. NOTE) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE INDENTURE, THIS U.S. NOTE, THE
GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THE
INDENTURE.
A-16
20. Authentication.
This U.S. Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this U.S. Note.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
22. CUSIP Numbers.
Upon the occurrence of a Separation Event, the Company will,
as soon as practicable, obtain CUSIP numbers and have such CUSIP numbers printed
on the U.S. Notes and direct the Trustee to use such CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the U.S. Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to: Phibro Animal Health Corporation, Xxx Xxxxxx Xxxxx, Xxxx Xxx, XX 00000, Tel:
(000) 000-0000, Attention: Corporate Legal Department.
A-17
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint ________________________________________________________
agent to transfer this Note on the books of the Company and Dutch Issuer. The
agent may substitute another to act for him.
Dated: __________________________ Signed: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ____________________________
A-18
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this U.S. Note purchased by the
Company pursuant to Section 4.15, 4.16 and 4.24 of the Indenture, check the box:
/ /
If you want to elect to have only part of this U.S. Note
purchased by the Company pursuant to Section 4.15, 4.16 and 4.24 of the
Indenture, state the amount: $
Date: ________________ Your Signature: ___________________________________
(Sign exactly as your name appears
on the other side of the U.S. Note)
Signature Guarantee: ______________________________
(Signature must be guaranteed)
A-19
[FACE OF INITIAL DUTCH NOTE]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS A NON-U.S. PURCHASER AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH PHIBRO ANIMAL HEALTH CORPORATION OR
ANY AFFILIATE OF PHIBRO ANIMAL HEALTH CORPORATION WAS THE OWNER OF THIS SECURITY
(OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO PHIBRO ANIMAL HEALTH
CORPORATION OR ANY OF ITS SUBSIDIARIES, (B) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, 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, (C) PURSUANT TO OFFERS AND SALES TO NON-U.S. PURCHASERS
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER
THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF
SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH
A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO PHIBRO ANIMAL HEALTH CORPORATION'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C), (D) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FORGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
A-20
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, ITS NOMINEES AND
THEIR RESPECTIVE SUCCESSORS (THE "DEPOSITORY") TO A NOMINEE OF THE DEPOSITORY,
OR BY ANY SUCH NOMINEE OF THE DEPOSITORY, OR BY THE DEPOSITORY OR NOMINEE OF
SUCH SUCCESSOR DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF DEPOSITORY TO AN ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DEPOSITORY (AND ANY PAYMENT HEREON IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
A-21
PHILIPP BROTHERS NETHERLANDS III B.V.
13% Senior Secured Notes Due 2007
No. $
CUSIP No.
PHILIPP BROTHERS NETHERLANDS III B.V., a company under the
laws of the Netherlands, promises to pay to Cede & Co., or registered assigns,
the principal sum of $20,000,000 Dollars on December 1, 2007.
Interest Rate: 13.0%
Interest Payment Dates: June 1 and December 1, commencing
December 1, 2003.
Record Dates: May 15 and November 15.
Additional provisions of this Note are set forth on the
reverse side of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
PHILIPP BROTHERS NETHERLANDS III B.V.
By: Philipp Brothers Netherlands II B.V.
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
A-22
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The HSBC Bank USA, as Trustee, certifies that this is one of
the Dutch Notes referred to in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By: ____________________________________
Authorized Signatory
Date of Authentication:
A-23
[REVERSE OF INITIAL DUTCH NOTE]
13% SENIOR SECURED NOTE DUE 2007
1. Separable.
This Dutch Note, together with the 13% Senior Secured Note due
2007 of Phibro Animal Health Corporation (the "U.S. Note"), comprise a unit
(each a "Unit"). The U.S. Notes and Dutch Notes are collectively referred to in
this Note as the "Notes." The Notes will not trade separately unless (i) an
event of default on the Notes has occurred, (ii) a redemption of the Dutch Notes
pursuant to Section 3.03(d) of the Indenture has occurred, or (iii) the
occurrence of a Change of Control of Dutch Issuer.
2. Interest.
PHILIPP BROTHERS NETHERLANDS III B.V., a Dutch private company
with limited liability and an indirect wholly owned subsidiary of Phibro Animal
Health Corporation (such entity, and its successors and assigns under the
Indenture hereinafter referred to, and each other entity which is required to
become the Company pursuant to the Indenture, and its successors and assigns
under the Indenture, being herein called the "Company"), promises to pay
interest on the principal amount of this Dutch Note at the rate per annum shown
above. The Company will pay interest semi-annually on June 1 and December 1 of
each year, commencing December 1, 2003. Interest on the Dutch Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from October 21, 2003. Interest will be computed on the basis of a
360-day year of twelve 30-day months. 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) from
time to time on demand at 1% per annum in excess of the rate borne by the Dutch
Notes.
3. Method of Payment.
The Company will pay interest on the Dutch Notes (except
defaulted interest) to the Persons who are registered Holders of Dutch Notes at
the close of business on the Record Date immediately preceding the Interest
Payment Date even if Dutch Notes are cancelled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement)) after the Record Date. Holders must
surrender Dutch Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("Legal Tender"). However, the Company may pay principal and interest by its
check payable in such Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder's registered address.
4. Paying Agent and Registrar.
Initially, HSBC Bank USA, a New York banking corporation
("Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-Registrar without notice. The Issuers
and any of their Subsidiaries may act as Paying Agent, Registrar, co-Registrar
or transfer agent.
A-24
5. Indenture.
The Company issued the Dutch Notes under an Indenture dated as
of October 21, 2003 (the "Indenture"), among the Issuers, the Guarantors, the
Trustee and the Collateral Agent. This Dutch Note is one of a duly authorized
issue of Initial Dutch Notes of the Company designated as its 13% Senior Secured
Notes due 2007 (the "Initial Dutch Notes"). The Dutch Notes include the Initial
Dutch Notes and the Exchange Dutch Notes issued in exchange for the Initial
Dutch Notes pursuant to the Registration Rights Agreement. The Initial Dutch
Notes, the Exchange Dutch Notes, the Initial U.S. Notes and the Exchange U.S.
Notes are treated as a single class of securities under the Indenture. The terms
of the Dutch 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.C. Section
77aaa-77bbbb) as in effect and amended on the date of the Indenture (the "TIA").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Dutch Notes are subject to all such terms, and
Holders are referred to the Indenture and the TIA for a statement of those
terms. Any conflict between this Dutch Note and the Indenture will be governed
by the Indenture.
6. Redemption.
(a) Optional Redemption Prior to June 1, 2005. At any
time prior to June 1, 2005, the Issuers may, at their option, on one or more
occasions redeem all or part of their Notes at a redemption price equal to the
greater of (1) 100% of the aggregate principal amount of the Notes being
redeemed and (2) the sum of the present values of 114% of the aggregate
principal amount of the Notes being redeemed and scheduled payments of interest
on such Notes to and including June 1, 2005 discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points, together with, in each case,
accrued and unpaid interest, if any, to the date of redemption. The foregoing
optional redemption of the Notes prior to June 1, 2005 shall include both U.S.
Notes and Dutch Notes on a pro rata basis based on the aggregate principal
amount of the Notes outstanding at the time of redemption, unless a Change in
Control of the Dutch Issuer has occurred.
(i) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption period.
(ii) "Comparable Treasury Issue" means the United
States Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of the Notes
(as if the final maturity of the Notes was June 1, 2005) that would be utilized
at the time of selection and in accordance with customary financial practice in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes (as if the final maturity of the Notes was June 1,
2005).
(iii) "Comparable Treasury Price" means, with
respect to any redemption date, (1) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (B) if the Company
A-25
obtains fewer than three such Reference Treasury Dealer Quotations, the average
of all such Reference Treasury Dealer Quotations.
(iv) "Reference Treasury Dealer Quotation" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Issuers by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
(v) "Reference Treasury Dealer" means any
primary U.S. government securities dealer in the City of New York selected by
the Issuers.
(b) Optional Redemption on or after June 1, 2005. The
Notes are redeemable at the option of the Issuers, in whole or in part, at any
time on or after June 1, 2005 at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below plus in each case accrued
and unpaid interest and Additional Interest, if any, to the date of redemption,
if redeemed during the six-month period beginning on the dates indicated below:
Period Percentage
------ ----------
June 1, 2005................................................... 114.0%
December 1, 2005............................................... 109.0%
June 1, 2006................................................... 105.0%
December 1, 2006 and thereafter................................ 101.0%
The foregoing optional redemption of the Notes on or after June l, 2005
shall include both U.S. Notes and Dutch Notes on a pro rata basis based on the
aggregate principal amount of the Notes outstanding at the time of redemption,
unless a Change of Control of the Dutch Issuer has occurred.
(c) Redemption Upon Equity Offering. In addition, at any
time and from time to time prior to June 1, 2005, the Issuers may redeem at
their option in the aggregate up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes issued in the Offering and (ii) the respective
initial aggregate principal amount of the Notes issued under the Indenture after
the Issue Date, on one or more of the occasions with the net proceeds of one or
more Public Equity Offerings at 113.0% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, that
immediately after giving effect to such redemption, at least 65% of the sum of
(i) $105.0 million (the initial aggregate principal amount of the Notes issued
in the Offering) and (ii) the respective initial aggregate principal amount of
the Notes issued under the Indenture after the Issue Date remain outstanding
(other than any Notes owned by the Company or any of its Affiliates).
The foregoing optional redemption of the Notes shall include
both U.S. Notes and Dutch Notes on a pro rata basis based on the aggregate
principal amount of the Notes outstanding at the time of redemption, unless a
Change of Control of Dutch Issuer has occurred.
(b) Tax Redemption. Dutch Notes may be redeemed, at the
option of Dutch Issuer, as a whole, but not in part (limited to Dutch Notes with
respect to which an Additional Amount (as described
A-26
below) is or may be required), at any time, upon giving notice to Holders not
less than 30 days nor more than 60 days prior to the date fixed for redemption
(which notice shall be irrevocable), at a redemption price equal to the
principal amount thereof, together with interest accrued to the date fixed for
redemption and any Additional Amounts payable with respect thereto, if Dutch
Issuer determines and certifies to the Trustee immediately prior to the giving
of such notice that (i) they have or will become obligated to pay Additional
Amounts in respect of such Dutch Notes as a result of any change in or amendment
to the laws (or any regulations or rulings promulgated thereunder) of the
Netherlands or any relevant jurisdiction or any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in the official
position regarding the application or interpretation of such laws, regulations
or rulings (including a holding by a court of competent jurisdiction) which
change or amendment becomes effective on or after the date of issuance of such
Dutch Notes and (ii) such obligation cannot be avoided by Dutch Issuer taking
reasonable measures available to it, provided, that no such notice of redemption
shall be given earlier than 60 days prior to the earliest date on which Dutch
Issuer would be obligated to pay such Additional Amounts if a payment in respect
of such Dutch Notes was then due. Prior to the giving of any notice of
redemption described in this Section 6(d), Dutch Issuer shall deliver to the
Trustee (a) a certificate signed by two directors of Dutch Issuer stating that
the obligation to pay Additional Amounts cannot be avoided by Dutch Issuer
taking reasonable measures available to them and (b) an Opinion of Counsel to
the effect that Dutch Issuer has become obligated to pay Additional Amounts as a
result of such a change or amendment described above and that Dutch Issuer
cannot avoid payment of such Additional Amount by taking reasonable measures
available to them.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, 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 Issuers
default in the payment of such Redemption Price plus accrued interest, if any,
the Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued interest, if any.
Unless the Issuers fail to comply with the preceding paragraph
and defaults in the payment of such Redemption Price plus accrued interest, if
any, interest 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.
8. Offers to Purchase.
Sections 4.15, 4.16 and 4.24 of the Indenture provide that
upon the occurrence of a Change of Control of the Company after certain Asset
Sales, and upon the Company having Excess Cash Flow, and subject to further
limitations contained therein, the Company and Dutch Issuer will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture. Section 4.15(b) of the Indenture provides that upon the
occurrence of the Change of Control of Dutch Issuer, Dutch Issuer may, at its
option at any time, redeem the Dutch Notes in whole, and not in part, at the
optional redemption prices specified in (i) Section 3.03(a) of the Indenture for
redemptions prior to June 1, 2005 and (ii) the first paragraph of Section
3.03(b) of the Indenture for redemptions on or after
A-27
June 1, 2005. If Dutch Issuer has not delivered a notice of redemption within 30
days following a Change of Control of Dutch Issuer, each Holder of a Dutch Note
shall have the right to require that Dutch Issuer repurchase all or a portion of
such Holder's Dutch Notes in accordance with the procedures set forth in the
Indenture.
9. The Registration Rights Agreement.
Pursuant to the Registration Rights Agreement among the
Issuers, the Guarantors and the Holders of the Initial Dutch Notes, the Company
has made certain covenants as set forth therein with respect to consummation of
an Exchange Offer (as defined in the Registration Rights Agreement). Upon such
exchange offering, the Holders of Dutch Notes shall have the right, subject to
compliance with securities laws, to exchange such Dutch Notes for 13% Senior
Secured Notes due 2007, which have been registered under the Securities Act (the
"Exchange Dutch Notes"), identical in all material respects to the Dutch Notes,
including the guarantees endorsed thereon, except for restrictive legends and
additional interest provisions. The Holders of the Initial Dutch Notes shall be
entitled to receive certain Additional Interest in the event such exchange offer
is not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
10. Denominations.
The Dutch Notes are in registered form, without coupons, and
in denominations of $190.4761905 and integral multiples thereof.
11. Persons Deemed Owners.
The registered Holder of this Dutch Note may be treated as the
owner of it for all purposes.
12. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Dutch Notes and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Dutch Notes to redemption or
maturity, as the case may be.
14. Amendment, Waiver.
Subject to Section 6.07 of the Indenture, the Issuers, when
authorized by a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal
amount of the then outstanding Dutch Notes (including consents obtained in
connection with a tender offer or exchange offer for the Dutch Notes), may amend
or supplement the Indenture or the Dutch Notes without notice to any other
Holder. Subject to Section 6.02 and 6.07 of the Indenture, the Holder or Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Issuers with any provision of the
Indenture or the Dutch
A-28
Notes without notice to any other Holder. Subject to certain exceptions set
forth in the Indenture, the Issuers, when authorized by a Board Resolution, and
the Trustee, together, may amend or supplement the Indenture or the Notes
without notice to or consent of any Holder in order to cure any ambiguity,
defect or inconsistency, provide for uncertificated Dutch Notes in addition to
or in place of certificated Dutch Notes; provide for the assumption of either
Issuer's Obligations to Holders in the event of any Disposition involving such
Issuer in which such Issuer is not the Surviving Person, make any change that
would provide any additional rights or benefits to the Holders or that does not
adversely affect the rights of any such Holder; release any Guarantor from its
Guarantee and the Indenture or the U.S. Issuer with respect to the Company
Guarantee from the Company Guarantee that is permitted to be released under the
Indenture in accordance with the terms thereof; or comply with the requirements
of the Commission in order to effect or maintain the qualification of this
Indenture under the Trust Indenture Act.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Dutch Notes and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
16. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, interest on, if any, with respect to any of the Dutch Notes or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture, the
Guarantees, the Registration Rights Agreement, the Company Guarantee or in any
of the Units or Dutch Notes or because of the creation of any Indebtedness
represented thereby, shall be had against any officer, employee, incorporator,
direct or indirect controlling person, shareholder, member, partner or Affiliate
of the Company, the Guarantors or of any successor Person thereof, except to the
extent any such Person is a party to any Guarantee or Company Guarantee. Each
Holder, by accepting the Units and the Dutch Notes, waives and releases all such
liability.
17. Guarantees.
This Dutch Note will be entitled to the benefits of certain
Guarantees and a Company Guarantee, if any, made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the Company,
Guarantors, the Trustee and the Holders.
18. Governing Law.
THE INDENTURE AND THE DUTCH NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO AND THE HOLDERS (BY THEIR
ACCEPTANCE OF A DUTCH NOTE) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
A-29
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE INDENTURE, THIS DUTCH NOTE, THE
GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THE
INDENTURE.
20. Authentication.
This Dutch Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Dutch Note.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
22. CUSIP Numbers.
Upon the occurrence of a Separation Event, the Company will,
as soon as practicable, obtain CUSIP numbers and have such CUSIP numbers printed
on the Dutch Notes and direct the Trustee to use such CUSIP numbers in notices
of redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Dutch Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to: Philipp Brothers Netherlands III B.V. c/o Phibro Animal Health Corporation,
Xxx Xxxxxx Xxxxx, Xxxx Xxx, XX 00000, Tel: (000) 000-0000, Attention: Corporate
Legal Department.
A-30
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company and Phibro Animal Health
Corporation. The agent may substitute another to act for him.
Dated: ____________________ Signed: _______________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee: ____________________________
A-31
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Dutch Note purchased by the
Company pursuant to Section 4.15, 4.16 and 4.24 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Dutch Note
purchased by the Company pursuant to Section 4.15, 4.16 and 4.24 of the
Indenture, state the amount: $
Date: __________________ Your Signature: ____________________________________
(Sign exactly as your name appears
on the other side of the Dutch Note)
Signature Guarantee: ___________________________________
(Signature must be guaranteed)
A-32
EXHIBIT B
[FACE OF EXCHANGE UNIT]
PHIBRO ANIMAL HEALTH CORPORATION
AND
PHILIPP BROTHERS NETHERLANDS III B.V.
105,000 Units
Each Unit Consisting of
$809.5238095 Principal Amount of 13% Senior Secured Notes Due 2007
of Phibro Animal Health Corporation
and $190.4761905 Principal Amount of 13% Senior Secured Notes Due 2007
of Philipp Brothers Netherlands III B.V.
No. ___ Certificate for _______ Units
CUSIP No. _________
Each of Phibro Animal Health Corporation, a New York
corporation (the "Company"), which term includes any successor corporation, and
Philipp Brothers Netherlands III B.V., a company organized under the laws of the
Netherlands ("Dutch Issuer"), which term includes any successor company, hereby
certifies that [ ] is the owner of [ ] Units as described above,
transferable only on the books of the Company and Dutch Issuer by the Holder
thereof in person or by his or her duly authorized attorney on surrender of this
Certificate properly endorsed. Each Unit consists of $809.5238095 principal
amount of 13% Senior Secured Notes due 2007 of the Company (the "U.S. Notes")
and $190.4761905 principal amount of 13% Senior Secured Notes due 2007 of Dutch
Issuer (the "Dutch Notes" and, together with the U.S. Notes, the "Notes"). This
Unit is issued pursuant to the Indenture, dated as of October 21, 2003 among the
Company, Dutch Issuer, the Guarantors and HSBC Bank USA, as Trustee and
Collateral Agent, (the "Indenture") and is subject to the terms and provisions
contained therein, to all of which terms and provisions the Holder of this Unit
Certificate consents by acceptance hereof. The terms of the Notes and the
Guarantees are governed by the Indenture, and are subject to the terms and
provisions contained therein, to all of which terms and provisions the Holder of
this Unit Certificate consents by acceptance hereof.
Reference is made to the further provisions of this Unit
Certificate contained herein, which will for all purposes have the same effect
as if set forth at this place. Copies of the Indenture are on file at the office
of the Company and Dutch Issuer and are available to any Holder on written
request and without cost.
The Notes will not trade separately unless (i) an event of
default on the Notes has occurred, (ii) a tax redemption of the Dutch Notes
pursuant to Section 3.03(d) of the Indenture has occurred, or (iii) the
occurrence of a Change of Control of Dutch Issuer.
The Indenture, this Unit and the Notes shall be governed by
and construed in accordance with the laws of the State of New York.
All terms used in this Unit which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
B-1
IN WITNESS WHEREOF, the Company and Dutch Issuer have caused
this Unit to be signed manually or by facsimile by one of its duly authorized
officers.
PHIBRO ANIMAL HEALTH CORPORATION
By:__________________________
Name:
Title:
PHILIPP BROTHERS NETHERLANDS III B.V.
By: Philipp Brothers Netherlands II B.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
B-2
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The HSBC Bank USA, as Trustee, certifies that this is one of
the Units referred to in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By:_____________________________________
Authorized Signatory
Date of Authentication:
B-3
ASSIGNMENT FORM
If you the Holder want to assign this Unit, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Unit to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably ________________________________________________________________
appoint agent to transfer this Unit on the books of the Company and Dutch
Issuer. The agent may substitute another to act for him.
Dated: _________________________ Signed: __________________________________
(Sign exactly as your name appears
on the other side of this Unit)
Signature Guarantee: ____________________________________
B-4
[FACE OF EXCHANGE U.S. NOTE]
PHIBRO ANIMAL HEALTH CORPORATION
13% Senior Secured Notes Due 2007
No. $
CUSIP No.
PHIBRO ANIMAL HEALTH CORPORATION, a New York corporation,
promises to pay to Cede & Co., or registered assigns, the principal sum of
$85,000,000 Dollars on December 1, 2007.
Interest Rate: 13.0%
Interest Payment Dates: June 1 and December 1, commencing
December 1, 2003.
Record Dates: May 15 and November 15.
Additional provisions of this Note are set forth on the
reverse side of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
PHIBRO ANIMAL HEALTH CORPORATION
By:_____________________________________
Name:
Title:
B-5
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The HSBC Bank USA, as Trustee, certifies that this is one of
the U.S. Notes referred to in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By:____________________________________
Authorized Signatory
Date of Authentication:
B-6
[REVERSE OF EXCHANGE U.S. NOTE]
13% SENIOR SECURED NOTE DUE 2007
1. Separable.
This U.S. Note, together with the 13% Senior Secured Note due
2007 of Philipp Brothers Netherlands III B.V. ("Dutch Issuer") (the "Dutch
Note"), comprise a unit (each a "Unit"). The U.S. Notes and Dutch Notes are
collectively referred to in this Note as the "Notes." The Notes will not trade
separately unless (i) an event of default on the Notes has occurred, (ii) a
redemption of the Dutch Notes pursuant to Section 3.03(d) of the Indenture has
occurred, or (iii) the occurrence of a Change of Control of Dutch Issuer.
2. Interest.
PHIBRO ANIMAL HEALTH CORPORATION, a New York corporation (such
entity, and its successors and assigns under the Indenture hereinafter referred
to, and each other entity which is required to become the Company pursuant to
the Indenture, and its successors and assigns under the Indenture, being herein
called the "Company"), promises to pay interest on the principal amount of this
U.S. Note at the rate per annum shown above. The Company will pay interest
semi-annually on June 1 and December 1 of each year, commencing December 1,
2003. Interest on the U.S. Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from October 21, 2003.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. 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) from time to time on demand at 1% per annum in excess
of the rate borne by the U.S. Notes.
3. Method of Payment.
The Company will pay interest on the U.S. Notes (except
defaulted interest) to the Persons who are registered Holders of U.S. Notes at
the close of business on the Record Date immediately preceding the Interest
Payment Date even if U.S. Notes are canceled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement)) after the Record Date. Holders must
surrender U.S. Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("U.S. Legal Tender"). However, the Company may pay principal and interest by
its check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder's registered address.
4. Paying Agent and Registrar.
Initially, HSBC Bank USA, a New York banking corporation
("Trustee"), will act as Paying Agent and Registrar. The Issuers and any of
their Subsidiaries may appoint and
B-7
change any Paying Agent, Registrar or co-Registrar without notice. The Company
may act as Paying Agent, Registrar, co-Registrar or transfer agent.
5. Indenture.
The Company issued the U.S. Notes under an Indenture dated as
of October 21 , 2003 (the "Indenture"), among the Issuers, the Guarantors, the
Trustee and the Collateral Agent. This U.S. Note is one of a duly authorized
issue of Initial U.S. Notes of the Company designated as its 13% Senior Secured
Notes due 2007 (the "Initial U.S. Notes"). The U.S. Notes include the Initial
U.S. Notes and the Exchange U.S. Notes issued in exchange for the Initial U.S.
Notes pursuant to the Registration Rights Agreement. The Initial U.S. Notes, the
Exchange U.S. Notes, the Initial Dutch Notes and the Exchange Dutch Notes are
treated as a single class of securities under the Indenture. The terms of the
U.S. 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.C. Section
77aaa-77bbbb) as in effect and amended, on the date of the Indenture (the
"TIA"). Terms defined in the Indenture and not defined herein have the meanings
ascribed thereto in the Indenture. The U.S. Notes are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of those
terms. Any conflict between this U.S. Note and the Indenture will be governed by
the Indenture.
6. Redemption.
(a) Optional Redemption Prior to June 1, 2005. At any
time prior to June 1, 2005, the Issuers may, at their option, on one or more
occasions redeem all or part of their Notes at a redemption price equal to the
greater of (1) 100% of the aggregate principal amount of the Notes being
redeemed and (2) the sum of the present values of 114% of the aggregate
principal amount of the Notes being redeemed and scheduled payments of interest
on such Notes to and including June 1, 2005 discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points, together with, in each case,
accrued and unpaid interest, if any, to the date of redemption. The foregoing
optional redemption of the Notes prior to June 1, 2005 shall include both U.S.
Notes and Dutch Notes on a pro rata basis based on the aggregate principal
amount of the Notes outstanding at the time of redemption, unless a Change in
Control of the Dutch Issuer has occurred.
(i) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption period.
(ii) "Comparable Treasury Issue" means the United
States Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of the Notes
(as if the final maturity of the Notes was June 1, 2005) that would be utilized
at the time of selection and in accordance with customary financial practice in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes (as if the final maturity of the Notes was June 1,
2005).
B-8
(iii) "Comparable Treasury Price" means, with
respect to any redemption date, (1) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
(iv) "Reference Treasury Dealer Quotation" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Issuers by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
(v) "Reference Treasury Dealer" means any
primary U.S. government securities dealer in the City of New York selected by
the Issuers.
(b) Optional Redemption on or after June 1, 2005. The
Notes are redeemable at the option of the Issuers, in whole or in part, at any
time on or after June 1, 2005 at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below plus in each case accrued
and unpaid interest and Additional Interest, if any, to the date of redemption,
if redeemed during the six-month period beginning on the dates indicated below:
Period Percentage
------ ----------
June 1, 2005...................................................... 114.0%
December 1, 2005.................................................. 109.0%
June 1, 2006...................................................... 105.0%
December 1, 2006 and thereafter................................... 101.0%
The foregoing optional redemption of the Notes on or after June l, 2005
shall include both U.S. Notes and Dutch Notes on a pro rata basis based on the
aggregate principal amount of the Notes outstanding at the time of redemption,
unless a Change of Control of the Dutch Issuer has occurred.
(c) Redemption Upon Equity Offering. In addition, at any
time and from time to time prior to June 1, 2005, the Issuers may redeem at
their option in the aggregate up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes issued in the Offering and (ii) the respective
initial aggregate principal amount of the Notes issued under the Indenture after
the Issue Date, on one or more of the occasions with the net proceeds of one or
more Public Equity Offerings at 113.0% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, that
B-9
immediately after giving effect to such redemption, at least 65% of the sum of
(i) $105.0 million (the initial aggregate principal amount of the Notes issued
in the Offering) and (ii) the respective initial aggregate principal amount of
the Notes issued under the Indenture after the Issue Date remain outstanding
(other than any Notes owned by the Company or any of its Affiliates). In order
to effect the foregoing redemption with the proceeds of any Public Equity
Offering, we will make such redemption not more than 90 days after the
consummation of any such Public Equity Offering.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, 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 Issuers
default in the payment of such Redemption Price plus accrued interest, if any,
the Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued interest, if any.
Unless the Issuers fail to comply with the preceding paragraph
and defaults in the payment of such Redemption Price plus accrued interest, if
any, interest 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.
8. Offers to Purchase.
Sections 4.15, 4.16 and 4.24 of the Indenture provide that
upon the occurrence of a Change of Control of the Company after certain Asset
Sales, and upon the Company having Excess Cash Flow, and subject to further
limitations contained therein, the Company and Dutch Issuer will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture.
9. Denominations.
The U.S. Notes are in registered form, without coupons, and in
denominations of $809.5238095 and integral multiples thereof.
10. Persons Deemed Owners.
The registered Holder of this U.S. Note may be treated as the
owner of it for all purposes.
B-10
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for one year, the Trustee or Paying Agent shall pay the money back to
the Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the U.S. Notes and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the U.S. Notes to redemption or
maturity, as the case may be.
13. Amendment, Waiver.
Subject to Section 6.07 of the Indenture, the Issuers, when
authorized by a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal
amount of the then outstanding U.S. Notes (including consents obtained in
connection with a tender offer or exchange offer for the U.S. Notes), may amend
or supplement the Indenture or the U.S. Notes without notice to any other
Holder. Subject to Section 6.02 and 6.07 of the Indenture, the Holder or Holders
of not less than a majority in aggregate principal amount of the then
outstanding Notes may waive compliance by the Issuers with any provision of the
Indenture or the U.S. Notes without notice to any other Holder. Subject to
certain exceptions set forth in the Indenture, the Issuers, when authorized by a
Board Resolution, and the Trustee, together, may amend or supplement the
Indenture or the U.S. Notes without notice to or consent of any Holder in order
to cure any ambiguity, defect or inconsistency, provide for uncertificated U.S.
Notes in addition to or in place of certificated U.S. Notes; provide for the
assumption of either Issuer's Obligations to Holders in the event of any
Disposition involving such Issuer in which such Issuer is not the Surviving
Person, make any change that would provide any additional rights or benefits to
the Holders or that does not adversely affect the rights of any such Holder;
release any Guarantor from its Guarantee and the Indenture or the U.S. Issuer
with respect to the Company Guarantee from the Company Guarantee that is
permitted to be released under the Indenture in accordance with the terms
thereof; or comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of U.S. Notes and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
B-11
15. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, interest on, if any, with respect to any of the Dutch Notes or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture, the
Guarantees, the Registration Rights Agreement, the Company Guarantee or in any
of the Units or Dutch Notes or because of the creation of any Indebtedness
represented thereby, shall be had against any officer, employee, incorporator,
direct or indirect controlling person, shareholder, member, partner or Affiliate
of the Company, the Guarantors or of any successor Person thereof, except to the
extent any such Person is a party to any Guarantee or Company Guarantee. Each
Holder, by accepting the Units and the Dutch Notes, waives and releases all such
liability.
16. Guarantees.
This U.S. Note will be entitled to the benefits of certain
Guarantees, if any, made for the benefit of the Holders. Reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and obligations thereunder of the Company, the Guarantors, the
Trustee and the Holders.
17. Governing Law.
THE INDENTURE AND THE U.S. NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO AND THE HOLDERS (BY THEIR
ACCEPTANCE OF A U.S. NOTE) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE INDENTURE, THIS U.S. NOTE, THE
GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THE
INDENTURE.
19. Authentication.
This U.S. Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this U.S. Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (=
B-12
joint tenants with rights of survivorship and not as tenants in common), CUST (=
custodian), and U/G/M/A (= Uniform Gift to Minors Act).
21. CUSIP Numbers.
Upon the occurrence of a Separation Event, the Company will,
as soon as practicable, obtain CUSIP numbers and have such CUSIP numbers printed
on the U.S. Notes and direct the Trustee to use such CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the U.S. Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to: Phibro Animal Health Corporation, Xxx Xxxxxx Xxxxx, Xxxx Xxx, XX 00000, Tel:
(000) 000-0000, Attention: Corporate Legal Department.
B-13
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint agent __________________________________________________
to transfer this Note on the books of the Company and Dutch Issuer. The agent
may substitute another to act for him.
Dated: ________________________ Signed: _____________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee: ______________________________
B-14
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this U.S. Note purchased by the
Company pursuant to Section 4.15, 4.16 and 4.24 of the Indenture, check the box:
/ /
If you want to elect to have only part of this U.S. Note
purchased by the Company pursuant to Section 4.15, 4.16 and 4.24 of the
Indenture, state the amount: $
Date: ______________ Your Signature: ____________________________________
(Sign exactly as your name appears on
the other side of the U.S. Note)
Signature Guarantee: _________________________________
(Signature must be guaranteed)
B-15
[FACE OF DUTCH EXCHANGE NOTE]
PHILIPP BROTHERS NETHERLANDS III B.V.
13% Senior Secured Notes Due 2007
No. $
CUSIP No.
PHILIPP BROTHERS NETHERLANDS III B.V., a company under the
laws of the Netherlands, promises to pay to Cede & Co., or registered assigns,
the principal sum of $ 20,000,000 Dollars on December 1, 2007.
Interest Rate: 13.0%
Interest Payment Dates: June 1 and December 1, commencing
December 1, 2003.
Record Dates: May 15 and November 15.
Additional provisions of this Note are set forth on the
reverse side of this Note.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by one of its duly authorized officers.
PHILIPP BROTHERS NETHERLANDS III B.V.
By: Philipp Brothers Netherlands II B.V.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
B-16
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
The HSBC Bank USA, as Trustee, certifies that this is one of
the Dutch Notes referred to in the within-mentioned Indenture.
HSBC BANK USA, as Trustee
By:_____________________________________
Authorized Signatory
Date of Authentication:
B-17
[REVERSE OF DUTCH NOTE]
13% SENIOR SECURED NOTE DUE 2007
1. Separable.
This Dutch Note, together with the 13% Senior Secured Note due
2007 of Phibro Animal Health Corporation (the "U.S. Note"), comprise a unit
(each a "Unit"). The U.S. Notes and Dutch Notes are collectively referred to in
this Note as the "Notes." The Notes will not trade separately unless (i) an
event of default on the Notes has occurred, (ii) a redemption of the Dutch Notes
pursuant to Section 3.03(d) of the Indenture has occurred, or (iii) the
occurrence of a Change of Control of Dutch Issuer.
2. Interest.
PHILIPP BROTHERS NETHERLANDS III B.V., a Dutch private company
with limited liability and an indirect wholly owned subsidiary of Phibro Animal
Health Corporation (such entity, and its successors and assigns under the
Indenture hereinafter referred to, and each other entity which is required to
become the Company pursuant to the Indenture, and its successors and assigns
under the Indenture, being herein called the "Company"), promises to pay
interest on the principal amount of this Dutch Note at the rate per annum shown
above. The Company will pay interest semi-annually on June 1 and December 1 of
each year, commencing December 1, 2003. Interest on the Dutch Notes will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from October 21, 2003. Interest will be computed on the basis of a
360-day year of twelve 30-day months. 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) from
time to time on demand at 1% per annum in excess of the rate borne by the Dutch
Notes.
3. Method of Payment.
The Company will pay interest on the Dutch. Notes (except
defaulted interest) to the Persons who are registered Holders of Dutch Notes at
the close of business on the Record Date immediately preceding the Interest
Payment Date even if Dutch Notes are cancelled on registration of transfer or
registration of exchange (including pursuant to an Exchange Offer (as defined in
the Registration Rights Agreement)) after the Record Date. Holders must
surrender Dutch Notes to a Paying Agent to collect principal payments. The
Company will pay principal and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts
("Legal Tender"). However, the Company may pay principal and interest by its
check payable in such Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder's registered address.
4. Paying Agent and Registrar.
Initially, HSBC Bank USA, a New York banking corporation ("Trustee"),
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent,
B-18
Registrar or co-Registrar without notice. The Issuers and any of their
Subsidiaries may act as Paying Agent, Registrar, co-Registrar or transfer agent.
5. Indenture.
The Dutch Issuer issued the Dutch Notes under an Indenture
dated as of October 21, 2003 (the "Indenture"), among the Issuers, the
Guarantors, the Trustee and the Collateral Agent. This Dutch Note is one of a
duly authorized issue of Initial Dutch Notes of the Company designated as its
13% Senior Secured Notes due 2007 (the "Initial Dutch Notes"). The Dutch Notes
include the Initial Dutch Notes and the Exchange Dutch Notes issued in exchange
for the Initial Dutch Notes pursuant to the Registration Rights Agreement. The
Initial Dutch Notes, the Exchange DUTCH Notes, the Initial U.S. Notes and the
Exchange U.S. Notes are treated as a single class of securities under the
Indenture. The terms of the Dutch 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.C. Section 77aaa-77bbbb) as in effect and amended on the date of
the Indenture (the "TIA"). Terms defined in the Indenture and not defined herein
have the meanings ascribed thereto in the Indenture. The Dutch Notes are subject
to all such terms, and Holders are referred to the Indenture and the TIA for a
statement of those terms. Any conflict between this Dutch Note and the Indenture
will be governed by the Indenture.
6. Redemption.
(a) Optional Redemption Prior to June 1, 2005. At any
time prior to June 1, 2005, the Issuers may, at their option, on one or more
occasions redeem all or part of their Notes at a redemption price equal to the
greater of (1) 100% of the aggregate principal amount of the Notes being
redeemed and (2) the sum of the present values of 114% of the aggregate
principal amount of the Notes being redeemed and scheduled payments of interest
on such Notes to and including June 1, 2005 discounted to the date of redemption
on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 50 basis points, together with, in each case,
accrued and unpaid interest, if any, to the date of redemption. The foregoing
optional redemption of the Notes prior to June 1, 2005 shall include both U.S.
Notes and Dutch Notes on a pro rata basis based on the aggregate principal
amount of the Notes outstanding at the time of redemption, unless a Change in
Control of the Dutch Issuer has occurred.
(vi) "Treasury Rate" means, with respect to any
redemption date, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption period.
(vii) "Comparable Treasury Issue" means the United
States Treasury security selected by a Reference Treasury Dealer appointed by
the Company as having a maturity comparable to the remaining term of the Notes
(as if the final maturity of the Notes was June 1, 2005) that would be utilized
at the time of selection and in accordance with customary financial practice in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes (as if the final maturity of the Notes was June 1,
2005).
B-19
(viii) "Comparable Treasury Price" means, with
respect to any redemption date, (1) the average of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day preceding such redemption date, as
set forth in the daily statistical release (or any successor release) published
by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities" or (2) if such release (or any
successor release) is not published or does not contain such prices on such
business day, (A) the average of the Reference Treasury Dealer Quotations (as
defined below) for such redemption date, after excluding the highest and lowest
such Reference Treasury Dealer Quotation or (B) if the Company obtains fewer
than three such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
(ix) "Reference Treasury Dealer Quotation" means,
with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Issuers by such Reference Treasury
Dealer at 5:00 p.m. on the third Business Day preceding such redemption date.
(i) "Reference Treasury Dealer" means any
primary U.S. government securities dealer in the City of New York selected by
the Issuers.
(b) Optional Redemption on or after June 1, 2005. The
Notes are redeemable at the option of the Issuers, in whole or in part, at any
time on or after June 1, 2005 at the redemption prices (expressed as percentages
of the principal amount of the Notes) set forth below plus in each case accrued
and unpaid interest and Additional Interest, if any, to the date of redemption,
if redeemed during the six-month period beginning on the dates indicated below:
Period Percentage
------ ----------
June 1, 2005.................................................. 114.0%
December 1, 2005.............................................. 109.0%
June 1, 2006.................................................. 105.0%
December 1, 2006 and thereafter............................... 101.0%
The foregoing optional redemption of the Notes on or after June l, 2005
shall include both U.S. Notes and Dutch Notes on a pro rata basis based on the
aggregate principal amount of the Notes outstanding at the time of redemption,
unless a Change of Control of the Dutch Issuer has occurred.
(c) Redemption Upon Equity Offering. In addition, at any
time and from time to time prior to June 1, 2005, the Issuers may redeem at
their option in the aggregate up to 35% of the sum of (i) the initial aggregate
principal amount of the Notes issued in the Offering and (ii) the respective
initial aggregate principal amount of the Notes issued under the Indenture after
the Issue Date, on one or more of the occasions with the net proceeds of one or
more Public Equity Offerings at 113.0% of the principal amount thereof, plus
accrued and unpaid interest and Additional Interest, if any, to the redemption
date (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided, that
B-20
immediately after giving effect to such redemption, at least 65% of the sum of
(i) $105.0 million (the initial aggregate principal amount of the Notes issued
in the Offering) and (ii) the respective initial aggregate principal amount of
the Notes issued under the Indenture after the Issue Date remain outstanding
(other than any Notes owned by the Company or any of its Affiliates).
The foregoing optional redemption of the Notes shall include
both U.S. Notes and Dutch Notes on a pro rata basis based on the aggregate
principal amount of the Notes outstanding at the time of redemption, unless a
Change of Control of Dutch Issuer has occurred.
(b) Tax Redemption. Dutch Notes may be redeemed, at the
option of Dutch Issuer, as a whole, but not in part (limited to Dutch Notes with
respect to which an Additional Amount (as described below) is or may be
required), at any time, upon giving notice to Holders not less than 30 days nor
more than 60 days prior to the date fixed for redemption (which notice shall be
irrevocable), at a redemption price equal to the principal amount thereof,
together with interest accrued to the date fixed for redemption and any
Additional Amounts payable with respect thereto, if Dutch Issuer determines and
certifies to the Trustee immediately prior to the giving of such notice that (i)
they have or will become obligated to pay Additional Amounts in respect of such
Dutch Notes as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the Netherlands or any
relevant jurisdiction or any political subdivision or taxing authority thereof
or therein affecting taxation, or any change in the official position regarding
the application or interpretation of such laws, regulations or rulings
(including a holding by a court of competent jurisdiction) which change or
amendment becomes effective on or after the date of issuance of such Dutch Notes
and (ii) such obligation cannot be avoided by Dutch Issuer taking reasonable
measures available to it, provided, that no such notice of redemption shall be
given earlier than 60 days prior to the earliest date on which Dutch Issuer
would be obligated to pay such Additional Amounts if a payment in respect of
such Dutch Notes was then due. Prior to the giving of any notice of redemption
described in this Section 6(d), Dutch Issuer shall deliver to the Trustee (a) a
certificate signed by two directors of Dutch Issuer stating that the obligation
to pay Additional Amounts cannot be avoided by Dutch Issuer taking reasonable
measures available to them and (b) an Opinion of Counsel to the effect that
Dutch Issuer has become obligated to pay Additional Amounts as a result of such
a change or amendment described above and that Dutch Issuer cannot avoid payment
of such Additional Amount by taking reasonable measures available to them.
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 but not more
than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at its registered address. Notes in denominations larger than $1,000 may be
redeemed in part.
Except as set forth in the Indenture, 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 Issuers
default in the payment of such Redemption Price plus accrued interest, if any,
the Notes called for redemption will cease to bear interest from and after such
Redemption Date and the only right of the Holders of such Notes will be to
receive payment of the Redemption Price plus accrued interest, if any.
B-21
Unless the Issuers fail to comply with the preceding paragraph
and defaults in the payment of such Redemption Price plus accrued interest, if
any, interest 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.
8. Offers to Purchase.
Sections 4.15, 4.16 and 4.24 of the Indenture provide that
upon the occurrence of a Change of Control of the Company after certain Asset
Sales, and upon the Company having Excess Cash Flow, and subject to further
limitations contained therein, the Company and Dutch Issuer will make an offer
to purchase certain amounts of the Notes in accordance with the procedures set
forth in the Indenture. Section 4.15(b) of the Indenture provides that upon the
occurrence of the Change of Control of Dutch Issuer, Dutch Issuer may, at its
option at any time, redeem the Dutch Notes in whole, and not in part, at the
optional redemption prices specified in (i) Section 3.03(a) of the Indenture for
redemptions prior to June 1, 2005 and (ii) the first paragraph of Section
3.03(b) of the Indenture for redemptions on or after June 1, 2005. If Dutch
Issuer has not delivered a notice of redemption within 30 days following a
Change of Control of Dutch Issuer, each Holder of a Dutch Note shall have the
right to require that Dutch Issuer repurchase all or a portion of such Holder's
Dutch Notes in accordance with the procedures set forth in the Indenture.
9. Denominations.
The Dutch Notes are in registered form, without coupons, and
in denominations of $190.4761905 and integral multiples thereof.
10. Persons Deemed Owners.
The registered Holder of this Dutch Note may be treated as the
owner of it for all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains
unclaimed for [two] years, the Trustee or Paying Agent shall pay the money back
to the Company at its written request unless an abandoned property law
designates another Person. After any such payment, Holders entitled to the money
must look only to the Company and not to the Trustee for payment.
12. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Dutch Notes and the Indenture
if the Company deposits with the Trustee money or U.S. Government Obligations
for the payment of principal and interest on the Dutch Notes to redemption or
maturity, as the case may be.
X-00
00. Xxxxxxxxx, Xxxxxx.
Subject to Section 6.07 of the Indenture, the Issuers, when
authorized by a Board Resolution, and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal
amount of the then outstanding Dutch Notes (including consents obtained in
connection with a tender offer or exchange offer for the Dutch Notes), may amend
or supplement the Indenture or the Dutch Notes without notice to any other
Holder. Subject to Section 6.02 and 6.07 of the Indenture, the Holder or Holders
of not less than a majority in aggregate principal amount of the then
outstanding Dutch Notes may waive compliance by the Issuers with any provision
of the Indenture or the Dutch Notes without notice to any other Holder. Subject
to certain exceptions set forth in the Indenture, the Issuers, when authorized
by a Board Resolution, and the Trustee, together, may amend or supplement the
Indenture or the Dutch Notes without notice to or consent of any Holder in order
to cure any ambiguity, defect or inconsistency, provide for uncertificated Dutch
Notes in addition to or in place of certificated Dutch Notes; provide for the
assumption of either Issuer's Obligations to Holders in the event of any
Disposition involving such Issuer in which such Issuer is not the Surviving
Person, make any change that would provide any additional rights or benefits to
the Holders or that does not adversely affect the rights of any such Holder;
release any Guarantor from its Guarantee and the Indenture or the U.S. Issuer
with respect to the Company Guarantee from the Company Guarantee that is
permitted to be released under the Indenture in accordance with the terms
thereof; or comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Dutch Notes and may otherwise deal with and collect
obligations owed to it by the Company or any of its Affiliates and may otherwise
deal with the Company or any of its Affiliates with the same rights it would
have if it were not Trustee.
15. No Recourse Against Others.
No recourse for the payment of the principal of, premium, if
any, interest on, if any, with respect to any of the Dutch Notes or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture, the
Guarantees, the Registration Rights Agreement, the Company Guarantee or in any
of the Units or Dutch Notes or because of the creation of any Indebtedness
represented thereby, shall be had against any officer, employee, incorporator,
direct or indirect controlling person, shareholder, member, partner or Affiliate
of the Company, the Guarantors or of any successor Person thereof, except to the
extent any such Person is a party to any Guarantee or Company Guarantee. Each
Holder, by accepting the Units and the Dutch Notes, waives and releases all such
liability.
B-23
16. Guarantees.
This Dutch Note will be entitled to the benefits of certain
Guarantees and a Company Guarantee, if any, made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the Company,
Guarantors, the Trustee and the Holders.
17. Governing Law.
THE INDENTURE AND THE DUTCH NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICT OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
18. Waiver of Jury Trial.
EACH OF THE PARTIES HERETO AND THE HOLDERS (BY THEIR
ACCEPTANCE OF A DUTCH NOTE) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR IN CONNECTION WITH THE INDENTURE, THIS DUTCH NOTE, THE
GUARANTEES, THE COLLATERAL AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED BY THE
INDENTURE.
19. Authentication.
This Dutch Note shall not be valid until an authorized
signatory of the Trustee (or an authenticating agent) manually signs the
certificate of authentication on the other side of this Dutch Note.
20. Abbreviations.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with rights of survivorship and not as
tenants in common), CUST (= custodian), and U/G/M/A (= Uniform Gift to Minors
Act).
21. CUSIP Numbers.
Upon the occurrence of a Separation Event, the Company will,
as soon as practicable, obtain CUSIP numbers and have such CUSIP numbers printed
on the Dutch Notes and direct the Trustee to use such CUSIP numbers in notices
of redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Dutch Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge to the Holder a copy of the Indenture. Requests may be made
to: Philipp Brothers Netherlands
B-24
III B.V. c/o Phibro Animal Health Corporation, Xxx Xxxxxx Xxxxx, Xxxx Xxx, XX
00000, Tel: (000) 000-0000, Attention: Corporate Legal Department.
B-25
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form
below and have your signature guaranteed:
I or we assign and transfer this Note to:
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint agent __________________________________________________
to transfer this Note on the books of the Company and Phibro Animal Health
Corporation. The agent may substitute another to act for him.
Dated: ________________________ Signed: _____________________________________
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee: ____________________________
B-26
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Dutch Note purchased by the
Company pursuant to Section 4.15, 4.16 and 4.24 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Dutch Note
purchased by the Company pursuant to Section 4.15, 4.16 and 4.24 of the
Indenture, state the amount: $
Date: ______________ Your Signature: _____________________________________
(Sign exactly as your name appears on
the other side of the Dutch Note)
Signature Guarantee: _______________________________
(Signature must be guaranteed)
B-27
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[__________], [____]
[___________________________]
[___________________________]
[___________________________]
Re: Phibro Animal Health Corporation and
Philipp Brothers Netherlands III B.V.
Ladies and Gentlemen:
In connection with our proposed purchase of Senior Secured
Note Units due 2007 (the "Units"), each Unit consisting of $809.5238095
principal amount of 13% Senior Secured Notes due 2007 issued by the Phibro
Animal Health Corporation (the "Company") and $190.4761905 principal amount of
13% Senior Secured Notes due 2007 issued by Philipp Brothers Netherlands III
B.V. (the "Dutch Issuer" and together with the Company, the "Issuers")
(together, the "Notes"), we confirm that:
(i) We have received a copy of the Offering
Circular (the "Offering Circular"), dated as of October 10, 2003, relating to
the Notes and Units and such other information as we deem necessary in order to
make our investment decision. We acknowledge that we have read and agreed to the
matters stated in the section entitled "Notice to Investors" of such Offering
Circular.
(ii) We understand that any subsequent transfer
of the Notes or Units is subject to certain restrictions and conditions set
forth in the Indenture relating to the Notes and Units (the "Indenture") as
described in the Offering Circular and the undersigned agrees to be bound by,
and not to resell, pledge or otherwise transfer the Notes or Units except in
compliance with, such restrictions and conditions and the Securities Act of
1933, as amended (the "Securities Act"), and all applicable state securities
laws.
(iii) We understand that the offer and sale of the
Notes and Units have not been registered under the Securities Act, and that the
Notes and Units may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which we
are acting as hereinafter stated, that if we should sell any Notes or Units, we
will do so only (i) to the Company or any subsidiary thereof, (ii) inside the
United States in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined in Rule 144A promulgated under the
Securities Act), (iii) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee (as defined in
the Indenture) a signed letter containing certain representations and agreements
relating to the restrictions on
C-1
transfer of the Notes and Units (the form of which letter can be obtained from
the Trustee), (iv) outside the United States in accordance with Rule 904 of
Regulation S promulgated under the Securities Act to non-U.S. persons, (v)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (vi) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing any of the Securities from us a notice advising such purchaser
that resales of the Notes and Units are restricted as stated herein.
(iv) We understand that, on any proposed resale
of any Notes or Units, we will be required to furnish to the Trustee and the
Issuers such certification, legal opinions and other information as the Trustee
and the Issuers may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the Notes
and Units purchased by us will bear a legend to the foregoing effect.
(v) We are an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) and have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes and Units, and we and any accounts for which we are
acting are each able to bear the economic risk of our or their investment, as
the case may be.
(vi) We are acquiring the Notes and Units
purchased by us for our account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You, the Issuers, the Trustee and others are entitled to rely
upon this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By:______________________________
Name:
Title:
C-2
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[__________], [____]
[_____________________________]
[_____________________________]
[_____________________________]
Re: Phibro Animal Health Corporation and
Philipp Brothers Netherlands III B.V. (the "Issuers")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of the Notes and Units, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the U.S.
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
1. the offer of the Notes and Units was not made to a
person in the United States;
(a) either (a) at the time the buy offer 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 executed in, on or through the facilities of a
designated offshore securities market and neither we nor any person acting on
our behalf knows that the transaction has been prearranged with a buyer in the
United States;
(b) no directed selling efforts have been made in the
United States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable;
(c) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act; and
(d) we have advised the transferee of the transfer
restrictions applicable to the Units and Notes.
D-1
You, the Issuers and counsel for the Issuers are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:______________________________
Authorized Signature
D-2
EXHIBIT E
DOMESTIC GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees on a senior secured basis, as principal obligor and not only as a
surety, to the Holder cash payments in United States dollars of principal of,
premium, if any, and interest on the U.S. Note and the Dutch Note (and including
Additional Interest payable thereon) in the amounts and at the times when due
and interest on the overdue principal, premium, if any, and interest, if any, of
the U.S. Note and Dutch Note, if lawful, and the payment or performance of all
other obligations of Phibro Animal Health Corporation, a New York corporation,
as U.S. issuer (the "Company") and Philipp Brothers Netherlands III B.V. a
private company with limited liability and an indirect wholly owned subsidiary
of the Company, as Dutch issuer (the "Dutch Issuer") under the Indenture (as
defined below) or the Notes and Units, to the Holder and the Trustee, all in
accordance with and subject to the terms and limitations of this Note, Article
Twelve of the Indenture and this Guarantee. This Guarantee will become effective
in accordance with Articles Eleven and Twelve of the Indenture and its terms
shall be evidenced therein. The validity and enforceability of any Guarantee
shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Indenture dated as of October 21, 2003 by and among the Company,
the Dutch Issuer, each of the Guarantors named therein, HSBC Bank USA, in its
capacity as trustee (the "Trustee"), and HSBC Bank USA, in its capacity as
Collateral Agent, as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Articles Ten and Twelve of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
E-1
IN WITNESS WHEREOF, each Domestic Guarantor has caused its
Guarantee to be duly executed.
DOMESTIC GUARANTORS:
PRINCE AGRIPRODUCTS, INC.
PHIBROCHEM, INC.
WESTERN MAGNESIUM CORP.
CP CHEMICALS, INC.
PHIBRO - TECH, INC.
PHIBRO ANIMAL HEALTH U.S., INC.
PHIBRO ANIMAL HEALTH HOLDINGS, INC.
PHIBRO CHEMICALS, INC.
By:_____________________________________
Name:
Title:
E-2
EXHIBIT F
FOREIGN GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees on a senior secured basis, as principal obligor and not only as a
surety, to the Holder cash payments in United States dollars of principal of,
premium, if any, and interest on the Dutch Note (and including Additional
Interest payable thereon) in the amounts and at the times when due and interest
on the overdue principal, premium, if any, and interest, if any, of the Dutch
Note, if lawful, and the payment or performance of all other obligations of
Philipp Brothers Netherlands III B.V., a Dutch private company with limited
liability and an indirect wholly owned subsidiary of the Company (the "Dutch
Issuer") under the Indenture (as defined below) or the Notes and Units, to the
Holder and the Trustee, all in accordance with and subject to the terms and
limitations of this Note, Article Twelve of the Indenture and this Guarantee.
This Guarantee will become effective in accordance with Articles Eleven and
Twelve of the Indenture and its terms shall be evidenced therein. The validity
and enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Note. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Indenture dated as of
October 21, 2003 by and among Phibro Animal Health Corporation, a New York
corporation, as U.S. issuer, the Dutch Issuer, each of the Guarantors named
therein, HSBC Bank USA, in its capacity as trustee (the "Trustee"), and HSBC
Bank USA, in its capacity as Collateral Agent, as amended or supplemented (the
"Indenture").
The obligations of the undersigned to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Articles Ten and Twelve of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE JURISDICTION OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW. Each Guarantor hereby agrees to
submit to the jurisdiction of the courts of the in any action or proceeding
arising out of or relating to this Guarantee.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
F-1
IN WITNESS WHEREOF, each Foreign Guarantor has caused its
Guarantee to be duly executed.
FOREIGN GUARANTORS:
PHIBRO ANIMAL HEALTH (BELGIUM) SPRL
By:_____________________________________
Name:
Title:
F-2
EXHIBIT G
COMPANY GUARANTEE
For value received, the undersigned hereby unconditionally
guarantees on a senior secured basis, as principal obligor and not only as a
surety, to the Holder cash payments in United States dollars of principal of,
premium, if any, and interest on the Dutch Note (and including Additional
Interest payable thereon) in the amounts and at the times when due and interest
on the overdue principal, premium, if any, and interest, if any, of the Dutch
Note, if lawful, and the payment or performance of all other obligations of
Philipp Brothers Netherlands III B.V., a Dutch private company with limited
liability and an indirect wholly owned subsidiary of the Company (the "Dutch
Issuer") under the Indenture (as defined below) or the Notes and Units, to the
Holder and the Trustee, all in accordance with and subject to the terms and
limitations of this Note, Article Twelve of the Indenture and this Guarantee.
This Guarantee will become effective in accordance with Articles Eleven and
Twelve of the Indenture and its terms shall be evidenced therein. The validity
and enforceability of any Guarantee shall not be affected by the fact that it is
not affixed to any particular Note. Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Indenture dated as of
October 21, 2003 by and among Phibro Animal Health Corporation, a New York
corporation, as U.S. issuer, the Dutch Issuer, each of the Guarantors named
therein HSBC Bank USA, in its capacity as trustee (the "Trustee"), and HSBC Bank
USA, in its capacity as Collateral Agent, as amended or supplemented (the
"Indenture").
The obligations of the undersigned to the Holders and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Articles Ten and Twelve of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Guarantee and all of the other provisions
of the Indenture to which this Guarantee relates.
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. Each Guarantor hereby agrees to submit to the jurisdiction of
the courts of the in any action or proceeding arising out of or relating to this
Guarantee.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
G-1
IN WITNESS WHEREOF, the Company has caused its Guarantee to be
duly executed.
COMPANY GUARANTORS:
PHIBRO ANIMAL HEALTH CORPORATION
By:_____________________________________
Name:
Title:
G-2
EXHIBIT H
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated
as of _______________, among [Guarantor] (the "New Guarantor"), [a subsidiary of
Phibro Animal Health Corporation (or its successor)], [Philipp Brothers
Netherlands III B.V. (or its successor)] (the "Company"), the Guarantors (the
"Existing Guarantors") under the Indenture referred to below, and HSBC Bank USA,
as trustee under the Indenture referred to below (the "Trustee").
W I T N E S S E T H :
WHEREAS the Issuers and the Guarantors named therein have
heretofore executed and delivered to the Trustee an Indenture (as such may be
amended from time to time, the "Indenture"), dated as of October 21, 2003,
providing for the issuance of 105,000 Units due 2007 (the "Units"), each Unit
consisting of $809.5238095 principal amount of 13% Senior Secured Notes due 2007
issued by the Phibro Animal Health Corporation and $190.4761905 principal amount
of 13% Senior Secured Notes due 2007 issued by Philipp Brothers Netherlands III
B.V. (together, the "Notes");
WHEREAS Section 4.22 of the Indenture provides that under
certain circumstances the Issuers and each Guarantor is required to cause the
New Guarantor to execute and deliver to the Trustee a supplemental indenture
pursuant to which the New Guarantor shall unconditionally guarantee on a senior
secured basis all of the [U.S. Issuer's/Dutch Issuer's] obligations under the
Notes pursuant to a Guarantee on the terms and conditions set forth herein; and
WHEREAS pursuant to Section 5.01 of the Indenture, the
Trustee, the Issuers and Existing Guarantors are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the New Guarantor, the Issuers, the Existing Guarantors and the Trustee mutually
covenant and agree for the equal and ratable benefit of the Holders as follows:
1. Definitions. (a) Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.
(b) For all purposes of this Supplemental Indenture,
except as otherwise herein expressly provided or unless the context otherwise
requires: (i) the terms and expressions used herein shall have the same meanings
as corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof" and "hereby" and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not
to any particular section hereof.
2. Agreement to Guarantee. The New Guarantor hereby
agrees, jointly and severally with all other Guarantors, to guarantee on a
senior secured basis the [U.S. Issuer's/
H-1
Dutch Issuer's] obligations under the Notes on the terms and subject to the
conditions set forth in Article 12 of the Indenture and to be bound by all other
applicable provisions of the Indenture. From and after the date hereof, the New
Guarantor shall be a Guarantor for all purposes under the Indenture and the
Notes.
3. Ratification of Indenture; Supplemental Indenture
Part of Indenture. Except as expressly amended hereby, the Indenture is in all
respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder heretofore or
hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
5. Trustee Makes No Representation. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
6. Counterparts. The parties may sign any number of
copies of this Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
7. Effect of Headings. The Section headings herein are
for convenience only and shall not affect the construction thereof.
H-2
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the date first above written.
PHIBRO ANIMAL HEALTH CORPORATION
By:_____________________________________
Name:
Title:
PHILIPP BROTHERS NETHERLANDS III B.V.
By: Philipp Brothers Netherlands II, B.V.
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
HSBC BANK USA,
as Trustee and Collateral Agent
By:_____________________________________
Name:
Title:
H-3
GUARANTORS:
PRINCE AGRIPRODUCTS, INC.
PHIBRO CHEM, INC.
WESTERN MAGNESIUM CORP.
CP CHEMICALS, INC.
PHIBRO - TECH, INC.
PHIBRO ANIMAL HEALTH U.S., INC.
PHIBRO ANIMAL HEALTH HOLDINGS, INC.
PHIBRO CHEMICALS, INC.
By:_____________________________________
Name:
Title:
FOREIGN GUARANTORS:
PHIBRO ANIMAL HEALTH (BELGIUM) SPRL
By:_____________________________________
Name:
Title:
H-4
EXHIBIT I
FORM OF INCUMBENCY CERTIFICATE
The undersigned, ________________, being the ________________
of ________________ (the "Company") does hereby certify that the individuals
listed below are qualified and acting officers of the Company as set forth in
the right column opposite their respective names and the signatures appearing in
the extreme right column opposite the name of each such officer is a true
specimen of the genuine signature of such officer and such individuals have the
authority to execute documents to be delivered to, or upon the request of, HSBC
Bank USA, as Trustee under the Indenture dated as of ________________ ___, 20__,
by and between the Company and HSBC Bank USA.
Name Title Signature
---- ----- ---------
---------------- ---------------- ----------------
---------------- ---------------- ----------------
---------------- ---------------- ----------------
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Certificate as of the ____ day of _________, 20__.
_____________________________________
Name:
Title:
I-1
EXHIBIT J
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 105,000 Units (the "Units") consisting of
13% Senior Secured Notes due 2007 of
Phibro Animal Health Corporation
and 13% Senior Secured Notes due 2007,
of Philipp Brothers Netherlands III B.V.
This Certificate relates to $________ principal amount of Units held in
the form of *_________ a beneficial interest in a Global Unit or *_________
Physical Unit by ___________ (the "Transferor").
The Transferor:*
|___| has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Unit held by the Depository a
Physical Unit or Physical Units in definitive, registered form of authorized
denominations and an aggregate number equal to its beneficial interest in such
Global Unit (or the portion thereof indicated above); or
|___| has requested by written order that the Registrar exchange or
register the transfer of a Physical Unit or Physical Units.
In connection with such request and in respect of each such Unit, the
Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above-captioned Units and the restrictions on
transfers thereof as provided in Section 5.01 of such Indenture, and that the
transfer of this Unit does not require registration under the Securities Act of
1933, as amended (the "Act"), because*:
|___| Such Unit is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.17(a)(II)(A) or Section 2.17
(d)(I)(a) of the Indenture).
|___| Such Note is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
|___| Such Note is being transferred to an institutional "accredited
investor" (within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule
501 under the Act).
|___| Such Note is being transferred in reliance on Regulation S under
the Act.
|___| Such Note is being transferred in reliance on Rule 144 under the
Act.
_______________________________
* Check applicable box.
J-1
|___| Such Note is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
________________________________________
[INSERT NAME OF TRANSFEROR]
By:_____________________________________
[Authorized Signatory]
Date: _____________________
J-2
EXHIBIT K
FORM OF LANDLORD WAIVER
The undersigned _______, as landlord ("Landlord") under that certain
lease (the "Lease") dated _______ with _____________, as tenant (the "Tenant"),
a copy of which is annexed hereto as Exhibit A, for the premises at
_______________ (the "Premises") hereby certifies to HSBC Bank USA, as
Collateral Agent as follows:
1. The Lease is in full force and effect, and except as indicated
on Exhibit B attached hereto, has not been amended, modified, supplemented or
superseded and, to the best knowledge of Landlord, Tenant is not in default of
performance of any covenant, agreement, obligation or condition contained in the
Lease.
2. Landlord hereby acknowledges that in connection with the
Indenture (the "Indenture"), dated as of October 21, 2003, by and among Phibro
Animal Health Corporation, Philipp Brothers Netherlands III B.V., the Guarantors
named therein and HSBC Bank USA ("Collateral Agent"), Tenant has entered into a
[_________] Collateral Agreement whereby it has granted a lien on certain of its
assets and properties for the benefit of the Collateral Agent in order to secure
its obligations under the Indenture and the related [____] Notes and
[__________] Guarantees (each as defined in such Indenture).
3. Landlord agrees to send to the Agent, at its address at 000
0xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Issuers Services, a copy of any
notice of default under the Lease and to allow the Agent a period of thirty (30)
days after the receipt by the Agent of the foregoing notice to commence to cure
such default. If the Agent commences to cure such default, Landlord will not
terminate the Lease so long as the Agent complies with all provisions of the
Lease requiring the payment or expenditure of money by Tenant.
4. Landlord agrees that in the event of a termination,
disaffirmance or rejection of the Lease for any reason, including, without
limitation, pursuant to any laws (including any bankruptcy or other insolvency
laws) by Tenant or the termination of the Lease for any reason by Landlord,
Landlord will give the Agent the right, within ninety (90) days of such event
and provided all curable defaults under the Lease have been cured, to enter into
a new lease of the Premises, in the name of the Agent on behalf of the Lenders
(or a designee to be named by the Agent at the time), for the remainder of the
term of the Lease and upon all of the terms and conditions, and subject to all
of the restrictions, thereof, or, if the Agent shall elect not to exercise such
right, Landlord will give the Agent the right to enter upon the Premises during
such ninety (90) day period for the purpose of removing Tenant's personal
property therefrom, but only if the Agent repairs any damage arising from such
removal.
5. (a) The security interest granted by Tenant to the Agent in
Tenant's interest in the Lease, the Premises, all personal property and
removable trade fixtures of Tenant, whether now or hereafter existing or now
owned or hereafter acquired and located on or about the Premises, of every kind
and description, tangible or intangible (such personal property, including
removable trade fixtures, referred to as the "Personal Property"), shall have
priority to the extent of all obligations of Tenant to the Agent secured thereby
over any security interest or lien,
K-1
whether acquired by statute, agreement or otherwise, of Landlord in or affecting
the Personal Property.
(b) The Personal Property shall remain personalproperty
notwithstanding the manner or mode of the attachment thereof to the
Premises and shall not become fixtures, and notwithstanding the
occurrence of an event of default resulting from default by Tenant
under the Lease, Tenant and/or the Agent (or each of their respective
assigns or designees) may remove the Personal Property from the
Premises.
6. Landlord and Tenant will not amend, alter, modify or change
any provision of the Lease without the prior written consent of the Agent. The
Agent is expressly hereby made a third-party beneficiary of this Section 6.
The undersigned acknowledges that this waiver is delivered to the Agent
in order to induce the Agent to secure certain obligations of the Tenant under
the Indenture and the related [____________] Notes and [__________] Guarantee
and the Agent will act in reliance upon the truth and accuracy of statements
contained in this waiver and without this waiver the Agent would not secure such
obligations.
This waiver may be executed in any number of counterparts, each of
which shall be an original, but all of which shall constitute one instrument.
DATED: _____________ __, 200[_]
Landlord
________________________________________
By: ____________________________________
Name:
Title:
K-2
EXHIBIT A
[ATTACH A COPY OF THE LEASE]
K-3
EXHIBIT B
AMENDMENTS TO THE LEASE
K-4
ACKNOWLEDGMENT
STATE OF ____________)
) SS:
COUNTY OF ___________)
I hereby certify, that on this ____ day of ____________, 200[_], before
the undersigned notary public, personally appeared ________, who acknowledged
himself to be the __________ of __________, ______ a corporation, and that he,
as such officer, being authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of such corporation by
himself as such officer.
________________________________________
Notary Public
My Commission Expires:
________________________________________
[NOTARY SEAL]
K-5
EXHIBIT L
FORM OF BAILEE WAIVER
[________], 200[_]
HSBC Bank USA
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the Indenture, dated as of October 21, 2003, by and
among Phibro Animal Health Corporation, Philipp Brothers Netherlands III B.V.,
the Guarantors named therein and HSBC Bank USA ("Collateral Agent"),
[____________] (the "Xxxxxx") has represented to us that it has entered into a
[_________] Collateral Agreement whereby it has granted a lien on certain of its
assets and properties for the benefit of the Collateral Agent in order to secure
their obligations under the Indenture and the related [____] Notes and
[__________] Guarantees (each as defined in such Indenture). The Xxxxxx has
requested that the undersigned (the "Bailee") agree to certain conditions
requested by the Collateral Agent with respect to certain property owned by the
Xxxxxx which is now stored or located, or may hereafter be stored or located, at
Bailee's premises at [__________________] (the "Premises").
For the purpose of this waiver, the term "Inventory" shall mean and
include all merchandise, raw materials, parts, work-in-progress, finished goods,
products intended for sale, rent, lease or other disposition, consigned goods to
the extent of the consignee's interest therein, materials and supplies of any
kind, nature or description which are or might be used in connection with the
manufacture, packing, shipping, advertising, sale or finishing of any such
goods, and all packaging material of every kind and description, and returns
upon any accounts or other proceeds, all documents of title or documents
representing the same and all records, files and writings with respect thereto
owned by the Xxxxxx that is now or hereafter located at the Premises.
Subject to the terms and conditions specified herein, Bailee and the
Xxxxxx agree for the benefit of the Collateral Agent as follows:
(a) The liens, security interests and claims which Bailee
has or may have against the Xxxxxx or the Inventory (collectively, the
"Bailee Liens") for or in respect of any accrued and unpaid cost
reimbursements, processing fees, storage fees, warehousing fees, and
all other fees or amounts charged or chargeable by Bailee arising by
operation
L-1
of law or out of or connected with the Agreement dated as of
[__________], 200[_] , between the Xxxxxx and Bailee (as amended,
supplemented, amended and restated or otherwise modified from time to
time, the "Agreement"), are and shall be prior to all liens, security
interests and claims which the Collateral Agent has or may have against
the Xxxxxx or the Inventory. Except for the Bailee Liens referred to in
the sentence immediately preceding this sentence, the Collateral
Agent's liens and security interests in and claims against the
Inventory or the Xxxxxx shall be prior to all liens, security interests
and claims which Bailee has or may assert against the Inventory or the
Xxxxxx.
(b) Bailee may issue warehouse receipts and other
customary documents of title which evidence Inventory ("Receipts") to
or for the account of the Xxxxxx.
(c) The Xxxxxx authorizes Bailee to release Inventory to
any person acting or apparently acting as agent of the Xxxxxx
(hereafter, an "agent of the Xxxxxx") upon the Xxxxxx'x written request
unless and until Bailee actually receives written notice from any
person acting or apparently acting as the Collateral Agent to cease
releasing Inventory. Following the Bailee's receipt of such written
notice from the Collateral Agent, the Bailee will refuse to release the
Inventory and will thereafter only release such inventory as directed
in any further written notice from the Collateral Agent actually
delivered to Bailee; provided, that, the Xxxxxx shall pay all
warehousing fees, storage fees or other fees relating to the --------
storage or shipment of the Inventory from and after the date of such
written notice and shall reimburse Bailee for all costs, expenses
(including, without limitation, reasonable attorneys' fees) or damages
reasonably incurred by Bailee as a result of Bailee's compliance with
the terms of this paragraph.
(d) Following actual receipt of written notice from the
Collateral Agent addressed to the Bailee at [______________],
[_______], [________], Attention: [________], Bailee will mail to the
Collateral Agent, at the address set forth above, three (3) business
days after the release of Inventory, a copy of each receipt describing
the person to whom Inventory was released and the quantity and general
description of the released Inventory; provided, that, the Xxxxxx shall
reimburse Bailee for all reasonable expenses incurred by virtue of
compliance with this paragraph.
(e) The Xxxxxx shall indemnify, defend and hold Bailee
and Bailee's agents, affiliates, representatives and employees harmless
from any and all liability to any person that results from, is
connected with, relates to or is incidental to the performance by
Bailee or its agents, affiliates, representatives or employees of its
obligations under this waiver.
Notwithstanding anything herein to the contrary, this waiver shall not
have any legal effect and Bailee shall have no liability or obligation
whatsoever to the Xxxxxx or the Collateral Agent in respect of the undertakings
described in this waiver, unless this waiver shall have been signed and returned
to Bailee by an authorized officer of the Xxxxxx. This waiver will remain in
effect until the undersigned has been advised in writing by the Collateral Agent
that the Xxxxxx has no outstanding obligations under the Indenture or the
[______] Notes or [________] Guarantees relating to such Indenture.
L-2
If the foregoing is acceptable, counterpart copies of this waiver
should be signed by an authorized officer of the Xxxxxx and returned to me. This
waiver may be executed in any number of counterparts, each of which shall be an
original, but all of which shall constitute one instrument. This waiver may not
be modified or amended orally, nor may it be otherwise modified or amended
except by another writing signed by Bailee and the Xxxxxx.
Very truly yours,
[BAILEE]
By _____________________________________
Name:
Title:
AGREED TO THIS ____ DAY
OF ________, 200[_]:
[XXXXXX]
By___________________________
Name:
Title:
HSBC BANK USA,
as Collateral Agent
By___________________________
Name:
Title:
L-3
EXHIBIT M
FORM OF CONSIGNEE WAIVER
[________], 200[_]
HSBC Bank USA
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
In connection with the Indenture, dated as of October 21, 2003, by and
among Phibro Animal Health Corporation, Philipp Brothers Netherlands III B.V.,
the Guarantors named therein and HSBC Bank USA ("Collateral Agent"),
[____________] (the "Consignor") has represented to us that it has entered into
a [_________] Collateral Agreement whereby it has granted a lien on certain of
its assets and properties for the benefit of the Collateral Agent in order to
secure their obligations under the Indenture and the related [____] Notes and
[__________] Guarantees (each as defined in such Indenture). The Consignor has
requested that the undersigned (the "Consignee") agree to certain conditions
requested by the Collateral Agent with respect to certain property owned by the
Consignor which is now stored or located, or may hereafter be stored or located,
at Consignee's premises at [________________] (the "Premises").
For the purpose of this waiver, the term "Inventory" shall mean and
include all merchandise, raw materials, parts, work-in-progress, finished goods,
products intended for sale, rent, lease or other disposition, consigned goods to
the extent of the Consignee's interest therein, materials and supplies of any
kind, nature or description which are or might be used in connection with the
manufacture, packing, shipping, advertising, sale or finishing of any such
goods, and all packaging material of every kind and description, and returns
upon any accounts or other proceeds, all documents of title or documents
representing the same and all records, files and writings with respect thereto
owned by the Consignor that is now or hereafter located at the Premises.
Subject to the terms and conditions specified herein, Consignee and the
Consignor agree for the benefit of the Collateral Agent as follows:
(a) The liens, security interests and claims which
Consignee has or may have against the Consignor or the Inventory
(collectively, the "Consignee Liens") for or in respect of any accrued
and unpaid cost reimbursements, processing fees, storage fees,
warehousing fees, and all other fees or amounts charged or chargeable
by Consignee arising by operation of law or out of or connected with
the Agreement dated as of [________], 200[_], between the Consignor and
Consignee (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Agreement"), are and shall be prior to
all liens, security interests and claims which the Collateral Agent has
or may have against the Consignor or the Inventory. Except for the
Consignee Liens
M-1
referred to in the sentence immediately preceding this sentence, the
Collateral Agent's liens and security interests in and claims against
the Inventory or the Consignor shall be prior to all liens, security
interests and claims which Consignee has or may assert against the
Inventory or the Consignor.
(b) Consignee may issue warehouse receipts and other
customary documents of title which evidence Inventory ("Receipts") to
or for the account of the Consignor.
(c) The Consignor authorizes Consignee to release
Inventory to any person acting or apparently acting as agent of the
Consignor (hereafter, an "agent of the Consignor") upon the Consignor's
written request unless and until Consignee actually receives written
notice from any person acting or apparently acting as the Collateral
Agent to cease releasing Inventory. Following the Consignee's receipt
of such written notice from the Collateral Agent, the Consignee will
refuse to release the Inventory and will thereafter only release such
inventory as directed in any further written notice from the Collateral
Agent actually delivered to Consignee; provided, that, the Consignor
shall pay all warehousing fees, storage fees or other fees relating to
the storage or shipment of the Inventory from and after the date of
such written notice and shall reimburse Consignee for all costs,
expenses (including, without limitation, reasonable attorneys' fees) or
damages reasonably incurred by Consignee as a result of Consignee's
compliance with the terms of this paragraph.
(d) Following actual receipt of written notice from the
Collateral Agent addressed to the Consignee at [______________],
[_______], [________], Attention: [________], Consignee will mail to
the Collateral Agent, at the address set forth above, three (3)
business days after the release of Inventory, a copy of each receipt
describing the person to whom Inventory was released and the quantity
and general description of the released Inventory; provided, that, the
Consignor shall reimburse Consignee for all reasonable expenses
incurred by virtue of compliance with this paragraph.
(e) The Consignor shall indemnify, defend and hold
Consignee and Consignee's agents, affiliates, representatives and
employees harmless from any and all liability to any person that
results from, is connected with, relates to or is incidental to the
performance by Consignee or its agents, affiliates, representatives or
employees of its obligations under this waiver.
Notwithstanding anything herein to the contrary, this waiver shall not
have any legal effect and Consignee shall have no liability or obligation
whatsoever to the Consignor or the Collateral Agent in respect of the
undertakings described in this waiver, unless this waiver shall have been signed
and returned to Consignee by an authorized officer of the Consignor. This waiver
will remain in effect until the undersigned has been advised in writing by the
Collateral Agent that the Consignor has no outstanding obligations under the
Indenture or the [_________] Notes or [_________] Guarantees relating to such
Indenture.
M-2
If the foregoing is acceptable, counterpart copies of this waiver
should be signed by an authorized officer of the Consignor and returned to me.
This waiver may be executed in any number of counterparts, each of which shall
be an original, but all of which shall constitute one instrument. This waiver
may not be modified or amended orally, nor may it be otherwise modified or
amended except by another writing signed by Consignee and the Consignor.
Very truly yours,
[CONSIGNEE]
By______________________________________
Name:
Title:
AGREED TO THIS ____ DAY
OF ________, 200[_]:
[CONSIGNOR]
By_____________________________________
Name:
Title:
HSBC BANK USA,
as Collateral Agent
By_____________________________________
Name:
Title:
M-3
