Exhibit 10.16
SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
October 5, 2004, among BCP Crystal US Holdings Corp. ("US Holdco"), BCP Caylux
Holdings Luxembourg S.C.A., a Luxembourg partnership limited by shares (SOCIETE
EN COMMANDITE PAR ACTIONS) ("BCP Caylux"), BCP Crystal Holdings Ltd. 2 (the
"Parent Guarantor") and THE BANK OF NEW YORK, a New York banking corporation, as
trustee under the indenture referred to below (the "Trustee").
RECITALS
WHEREAS, BCP Caylux, the Parent Guarantor and the Trustee have
heretofore executed an Indenture (as amended, supplemented or otherwise
modified, the "Indenture") dated as of June 8, 2004, providing for the issuance
of BCP Caylux's U.S. Dollar-denominated 9 5/8% Senior Subordinated Notes due
2014 (the "Dollar Notes") and Euro-denominated 10 3/8% Senior Subordinated Notes
due 2014 (the "Euro Notes" and, together with the Dollar Notes, the "Notes");
WHEREAS, Section 5.01 of the Indenture provides that, upon the
consummation of the Merger, US Holdco is required to execute and deliver to the
Trustee a supplemental indenture pursuant to which US Holdco shall become the
Issuer under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, US Holdco, BCP
Caylux, the Parent Guarantor and the Trustee are authorized to execute and
deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and mutual covenants
herein contained and intending to be legally bound, US Holdco, BCP Caylux, the
Parent Guarantor and the Trustee mutually covenant and agree for the equal and
ratable benefit of the holders of the Notes as follows:
1. DEFINED TERMS. As used in this Supplemental Indenture, terms
defined in the Indenture or in the preamble or recital hereto are used herein as
therein defined, except that the term "holders" in this Supplemental Indenture
shall refer to the term "Holders" as defined in the Indenture and the Trustee
acting on behalf of and for the benefit of such Holders. 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. ASSIGNMENT AND ASSUMPTION. (a) (a) As of the date hereof BCP
Caylux hereby transfers and assigns to US Holdco, and US Holdco hereby assumes
and undertakes from BCP Caylux, all rights, benefits, commitments, obligations
and liabilities of BCP Caylux under the Indenture, the Registration Rights
Agreement and the Notes (collectively, the "Assigned Instruments") and agrees to
be bound by all other applicable provisions of the Assigned Instruments.
(b) With effect on and after the date hereof, BCP Caylux shall
relinquish its rights and be released from its obligations under the Assigned
Instruments.
3. NOTICES. All notices or other communications to US Holdco shall
be given as provided in 13.02 of the Indenture.
4. RATIFICATION OF INDENTURE; SUPPLEMENTAL INDENTURES 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 of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
5. GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
6. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
7. 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.
8. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first above written.
BCP CRYSTAL US HOLDINGS CORP.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Director
BCP CAYLUX HOLDINGS
LUXEMBOURG S.C.A.
By: BCP CAYLUX HOLDINGS LTD. 1,
its Manager
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Director
BCP CRYSTAL HOLDINGS LTD. 2
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Director
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Assistant Vice President
