EXECUTION COPY
LUCITE INTERNATIONAL FINANCE PLC, AS ISSUER,
CERTAIN GUARANTORS NAMED HEREIN,
AND
THE BANK OF NEW YORK, AS TRUSTEE
------------------
INDENTURE
DATED AS OF JUNE 25, 2003
-------------------
10 1/4% SENIOR NOTES DUE 2010
TABLE OF CONTENTS(1)
PAGE
RECITALS OF THE ISSUER AND THE GUARANTORS........................................................................ 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............................................. 2
Section 101. Definitions........................................................................................ 2
Section 102. Other Definitions.................................................................................. 22
Section 103. Compliance Certificates and Opinions............................................................... 24
Section 104. Form of Documents Delivered to Trustee............................................................. 24
Section 105. Acts of Holders.................................................................................... 25
Section 106. Notices, etc., to the Trustee, the Issuer and any Guarantor........................................ 27
Section 107. Notice to Holders; Waiver.......................................................................... 27
Section 108. Conflict with Trust Indenture Act.................................................................. 28
Section 109. Effect of Headings and Table of Contents........................................................... 28
Section 110. Successors and Assigns............................................................................. 28
Section 111. Separability Clause................................................................................ 28
Section 112. Benefits of Indenture.............................................................................. 28
Section 113. Governing Law...................................................................................... 28
Section 114. Submission to Jurisdiction; Appointment of Agent for Service of Process; Currency
Indemnity.......................................................................................... 28
Section 115. Legal Holidays..................................................................................... 30
Section 116. Independence of Covenants.......................................................................... 30
Section 117. Schedules and Exhibits............................................................................. 30
Section 118. Counterparts....................................................................................... 30
ARTICLE TWO SECURITY FORMS...................................................................................... 30
Section 201. Forms Generally.................................................................................... 30
Section 202. Form of Face of Security........................................................................... 31
Section 203. Form of Reverse of Securities...................................................................... 35
Section 204. Form of Guarantee of Guarantors.................................................................... 41
ARTICLE THREE THE SECURITIES.................................................................................... 42
Section 301. Title and Terms.................................................................................... 42
Section 302. Denominations...................................................................................... 43
Section 303. Execution, Authentication, Delivery and Dating..................................................... 43
Section 304. Registrar, Transfer Agent and Paying Agent......................................................... 44
-------------------------------
(1)Note: This table of contents shall not for any purpose, be deemed to be a
part of the Indenture
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Section 305. Transfer and Exchange.............................................................................. 45
Section 306. Book-Entry Provisions for Global Securities........................................................ 46
Section 307. Special Transfer and Exchange Provisions........................................................... 47
Section 308. Mutilated, Destroyed, Lost and Stolen Securities................................................... 47
Section 309. Payment of Interest; Interest Rights Preserved..................................................... 47
Section 310. CUSIP, CINS and ISIN Numbers....................................................................... 49
Section 311. Persons Deemed Owners.............................................................................. 49
Section 312. Cancellation....................................................................................... 49
Section 313. Computation of Interest............................................................................ 49
ARTICLE FOUR DEFEASANCE AND COVENANT DEFEASANCE................................................................. 49
Section 401. Issuer's Option to Effect Defeasance or Covenant Defeasance........................................ 49
Section 402. Defeasance and Discharge........................................................................... 50
Section 403. Covenant Defeasance................................................................................ 50
Section 404. Conditions to Defeasance or Covenant Defeasance.................................................... 50
Section 405. Deposited Money and European Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions................................................................... 52
Section 406. Reinstatement...................................................................................... 53
ARTICLE FIVE REMEDIES........................................................................................... 53
Section 501. Events of Default.................................................................................. 53
Section 502. Acceleration of Maturity; Rescission and Annulment................................................. 55
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................................... 56
Section 504. Trustee May File Proofs of Claim................................................................... 57
Section 505. Trustee May Enforce Claims without Possession of Securities........................................ 57
Section 506. Application of Money Collected..................................................................... 58
Section 507. Limitation on Suits................................................................................ 58
Section 508. Unconditional Right of Holders to Receive Principal, Premium Interest and Additional
Amounts.................................................................................... 58
Section 509. Restoration of Rights and Remedies................................................................. 59
Section 510. Rights and Remedies Cumulative..................................................................... 59
Section 511. Delay or Omission Not Waiver....................................................................... 59
Section 512. Control by Holders................................................................................. 59
Section 513. Waiver of Past Defaults............................................................................ 59
Section 514. Undertaking for Costs.............................................................................. 60
Section 515. Waiver of Stay, Extension or Usury Laws............................................................ 60
Section 516. Remedies Subject to Applicable Law................................................................. 60
ARTICLE SIX THE TRUSTEE......................................................................................... 60
Section 601. Duties of Trustee.................................................................................. 61
Section 602. Notice of Defaults................................................................................. 61
Section 603. Certain Rights of Trustee.......................................................................... 62
Section 604. Trustee Not Responsible for Recitals, Dispositions of Securities or
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Application of Proceeds Thereof............................................................ 63
Section 605. Trustee and Agents May Hold Securities; Collections; etc........................................... 63
Section 606. Money Held in Trust................................................................................ 63
Section 607. Compensation and Indemnification of Trustee and Its Prior Claim.................................... 64
Section 608. Conflicting Interests.............................................................................. 64
Section 609. Trustee Eligibility................................................................................ 64
Section 610. Resignation and Removal; Appointment of Successor Trustee.......................................... 65
Section 611. Acceptance of Appointment by Successor............................................................. 66
Section 612. Merger, Conversion, Consolidation or Succession to Business........................................ 67
Section 613. Preferential Collection of Claims Against Issuer................................................... 67
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER.................................................. 67
Section 701. Issuer to Furnish Trustee Names and Addresses of Holders........................................... 67
Section 702. Disclosure of Names and Addresses of Holders....................................................... 68
Section 703. Reports by Trustee................................................................................. 68
Section 704. Reports by Issuer.................................................................................. 68
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS............................................................. 69
Section 801. Company and Guarantors May Consolidate, etc., Only on Certain Terms................................ 69
Section 802. Successor Substituted.............................................................................. 71
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................................ 71
Section 901. Supplemental Indentures and Agreements without Consent of Holders.................................. 71
Section 902. Supplemental Indentures and Agreements with Consent of Holders..................................... 72
Section 903. Execution of Supplemental Indentures and Agreements................................................ 73
Section 904. Effect of Supplemental Indentures.................................................................. 74
Section 905. Conformity with Trust Indenture Act................................................................ 74
Section 906. Reference in Securities to Supplemental Indentures................................................. 74
Section 907. Notice of Supplemental Indentures.................................................................. 74
ARTICLE TEN COVENANTS........................................................................................... 74
Section 1001. Payment of Principal, Premium, Interest and Additional Amounts.................................... 74
Section 1002. Maintenance of Office or Agency................................................................... 74
Section 1003. Money for Security Payments to Be Held in Trust................................................... 75
Section 1004. Corporate Existence............................................................................... 76
Section 1005. Payment of Taxes and Other Claims................................................................. 76
Section 1006. Maintenance of Properties......................................................................... 77
Section 1007. Maintenance of Insurance.......................................................................... 77
Section 1008. Limitation on Indebtedness........................................................................ 77
Section 1009. Limitation on Restricted Payments................................................................. 80
Section 1010. Limitation on Transactions with Affiliates........................................................ 83
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Section 1011. Limitation on Liens............................................................................... 84
Section 1012. Limitation on Sale of Assets...................................................................... 84
Section 1013. Limitation on Issuance of Guarantees of Indebtedness by Restricted Subsidiaries................... 88
Section 1014. Purchase of Securities upon a Change of Control................................................... 89
Section 1015. Limitation on Sale and Leaseback Transactions..................................................... 92
Section 1016. Limitation on Subsidiary Capital Stock............................................................ 92
Section 1017. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries...................... 92
Section 1018. Limitations on Unrestricted Subsidiaries.......................................................... 93
Section 1019. Limitation on Activities of the Issuer and Xxxxx.................................................. 95
Section 1021. Limitation on Senior Subordinated Indebtedness for Subordinated Guarantors........................ 95
Section 1022. Payment of Additional Amounts..................................................................... 96
Section 1023. Provision of Financial Statements.................................................................. 98
Section 1024. Statement by Officers as to Default............................................................... 98
Section 1025. Waiver of Certain Covenants....................................................................... 99
ARTICLE ELEVEN REDEMPTION OF SECURITIES......................................................................... 99
Section 1101. Rights of Redemption.............................................................................. 99
Section 1102. Redemption Upon Changes in Withholding Taxes...................................................... 100
Section 1103. Applicability of Article.......................................................................... 100
Section 1104. Election to Redeem; Notice to Trustee............................................................. 101
Section 1105. Selection by Trustee of Securities to Be Redeemed................................................. 101
Section 1106. Notice of Redemption.............................................................................. 101
Section 1107. Deposit of Redemption Price....................................................................... 102
Section 1108. Securities Payable on Redemption Date............................................................. 102
Section 1109. Securities Redeemed or Purchased in Part.......................................................... 103
ARTICLE TWELVE GUARANTEE........................................................................................ 103
Section 1201. Guarantors' Guarantee............................................................................. 103
Section 1202. Continuing Guarantee; No Right of Set-Off; Independent Obligation................................. 103
Section 1204. Right to Demand Full Performance.................................................................. 106
Section 1205. Waivers........................................................................................... 107
Section 1206. The Guarantors Remain Obligated in Event the Issuer Is No Longer Obligated to Discharge
Indenture Obligations...................................................................... 107
Section 1207. Fraudulent Conveyance; Subrogation................................................................ 107
Section 1208. Guarantee Is in Addition to Other Security........................................................ 108
Section 1209. Release of Security Interests..................................................................... 108
Section 1210. No Bar to Further Actions......................................................................... 108
Section 1211. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of Remedies............... 108
Section 1212. Trustee's Duties; Notice to Trustee............................................................... 109
Section 1213. Successors and Assigns............................................................................ 109
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Section 1214. Release of Guarantee.............................................................................. 109
Section 1215. Execution of Guarantee............................................................................ 109
Section 1216. Subordinated Guarantee Obligations Subordinated to Designated Senior Debt......................... 110
Section 1217. Suspension of Payment When Designated Senior Debt is in Default................................... 110
Section 1218. Payment Over of Proceeds Upon Dissolution, Etc.................................................... 111
Section 1219. Reliance on Subordination......................................................................... 112
Section 1220. Obligations of Guarantor Unconditional............................................................ 113
Section 1221. No Waiver of Subordination Provisions............................................................. 113
Section 1222. Trustee to Effectuate Subordination............................................................... 113
Section 1223. Subrogation to Rights of Holder of Guarantor Senior Indebtedness.................................. 114
Section 1224. No Suspension of Remedies......................................................................... 114
Section 1225. Provisions Solely to Define Relative Rights....................................................... 114
Section 1226. Intercreditor Deed................................................................................ 115
Section 1227. Limitations of Remedies under Subordinated Guarantees............................................. 115
Section 1228. Other Indebtedness................................................................................ 116
Section 1229. Notice to Trustee................................................................................. 116
Section 1230. Reliance on Judicial Order or Certificate of Liquidating Agent.................................... 117
Section 1231. Trustee Not Fiduciary for Holders of Guarantor Senior Indebtedness................................ 117
ARTICLE THIRTEEN SATISFACTION AND DISCHARGE.................................................................... 117
Section 1301. Satisfaction and Discharge of Indenture.......................................................... 117
Section 1302. Application of Trust Money....................................................................... 118
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
EXHIBIT A Form of Intercreditor Deed
EXHIBIT B Form of Intercompany Note
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INDENTURE, dated as of June 25, 2003, among Lucite
International Finance plc, a public limited company incorporated under the laws
of England and Wales (the "Issuer"), Lucite International Group Holdings
Limited, Lucite International Investment Limited, Lucite International Holdings
Limited and Lucite International Holdco Limited, each of which is a limited
liability company incorporated under the laws of England and Wales (each a
"Guarantor" and collectively, the "Guarantors"), and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
RECITALS OF THE ISSUER AND THE GUARANTORS
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its 10 1/4% Senior Notes due 2010
issued on the date hereof (the "Series A Securities"), its 10 1/4% SenioR Notes
due 2010 to be issued hereafter pursuant to an Exchange Offer described herein
(the "Series B Securities") and any additional Notes ("Additional Securities"
and, together with the Series A Securities and the Series B Securities, the
"Securities") that may be issued on any other Issue Date (as defined herein).
Lucite International Group Holdings Limited (the "Company") is
a parent company of the Issuer via two intermediate holding company
subsidiaries: Lucite International Investment Limited and Lucite International
Holdings Limited. Lucite International Holdings Limited is the immediate parent
company of the Issuer, Lucite International UK Xxxxx Limited ("Xxxxx") and
Lucite International Holdco Limited. Xxxxx has issued an intercompany note to
the Issuer the form of which is attached as Exhibit D hereto (the "Intercompany
Note"). Each of the Issuer and the Guarantors is a wholly-owned subsidiary,
directly or indirectly, of Lucite International Limited.
The Guarantors have duly authorized the execution and delivery
of this Indenture to provide for the issuance of their Guarantees (as defined
herein). The Issuer and the Guarantors have received good and valuable
consideration for the execution and delivery of this Indenture and the
Guarantees, as the case may be. The Guarantors will derive substantial direct
and indirect benefits from the issuance of the Securities.
The Issuer issued 10 1/4% Senior Notes due 2010 (the "2000
Notes"), guaranteed by the Guarantors (the "2000 Guarantees"), pursuant to an
indenture dated as of May 4, 2000 among the Issuer, the Guarantors and the
Trustee (the "2000 Indenture"), and issued exchange notes in exchange for such
2000 Notes (the "2000 Exchange Notes"), guaranteed by exchange guarantees issued
in exchange for such 2000 Guarantees (the "2000 Exchange Guarantees") on
November 21, 2000 (such 2000 Notes, 2000 Guarantees, 2000 Exchange Notes and
2000 Exchange Guarantees being collectively referred to herein as the "Existing
Securities").
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act.
All acts and things necessary have been done to make (i) the
Securities, when duly issued and executed by the Issuer and authenticated and
delivered hereunder, the legal, valid and binding obligations of the Issuer,
(ii) the Guarantees, when executed by the Guarantors and delivered hereunder,
the legal, valid and binding obligations of the Guarantors and (iii) this
Indenture a legal, valid and binding agreement of the Issuer and the Guarantors
in accordance with the terms of this Indenture;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to $, US$, dollars or United States
dollars shall refer to the lawful currency of the United States of America;
(f) all references to (euro), Euro, euro, and EUR shall
refer to the lawful currency of the meMber states of the European Union that
adopt the single currency in accordance with the Treaty establishing the
European Community, as amended by the Treaty on European Union;
(g) all references to(pound), pounds sterling, or
sterling refer to the lawful currency of the United Kingdom; and
(h) all references herein to particular Sections or
Articles refer to this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in
Article Four.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Restricted Subsidiary, (ii) assumed
in connection with the acquisition of assets from such Person or (iii) at the
time it merges or consolidates with the Company or any Restricted Subsidiary, in
each case, other than Indebtedness incurred in connection with or in
contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, as the case may be. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person, the
date the acquired Person becomes a Restricted Subsidiary or at the time of such
merger or consolidation, as the case may be.
"Additional Amounts" has the meaning specified in Section
1022.
"Affiliate" means, with respect to any specified Person: (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person; (ii) any other
Person that owns, directly or indirectly, 5% or more of such
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specified Person's Capital Stock or any officer or director of any such
specified Person or other Person or, with respect to any natural Person, any
person having a relationship with such Person by blood, marriage or adoption not
more remote than first cousin; or (iii) any other Person 5% or more of the
Voting Stock of which is beneficially owned or held directly or indirectly by
such specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of any depositary for such Security, Euroclear and
Clearstream, in each case to the extent applicable to such transaction and as in
effect at the time of such transfer or transaction.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of: (i) any
Capital Stock of any Restricted Subsidiary (other than directors' qualifying
shares); (ii) all or substantially all of the properties and assets of any
division or line of business of the Company or any Restricted Subsidiary; or
(iii) any other properties or assets of the Company or any Restricted Subsidiary
other than in the ordinary course of business. For the purposes of this
definition, the term "Asset Sale" shall not include any transfer of properties
and assets (A) that is governed by the provisions in Article Eight, (B) that is
by the Company to any Wholly Owned Restricted Subsidiary, or by any Restricted
Subsidiary to the Company or any Restricted Subsidiary in accordance with the
terms of this Indenture, (C) that is of obsolete equipment in the ordinary
course of business, (D) the Fair Market Value of which in the aggregate does not
exceed (pound)1,000,000 in any transaction or series of related transactions,
(E) that is a Restricted PaymenT permitted by Section 1009 or (F) in connection
with granting Permitted Liens.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment; by (ii) the sum of all such principal payments.
"Bank Credit Agreement" means that certain Facility Agreement
made on October 3, 1999 by and among the Company and certain of its
subsidiaries, as borrowers and/or guarantors, and Deutsche Bank AG London and
Xxxxxxx Xxxxx International, as Joint Lead Arrangers and Original Banks, and all
documentation relating thereto, including notes, collateral documents, letters
of credit and guarantees and any Interest Rate Agreement, as such documentation,
in whole or in part, has been amended through the date hereof and may be
amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified from time to time under one or more credit
facilities (including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing).
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law or U.K.
or other foreign law relating to bankruptcy, insolvency, receivership, winding
up, liquidation, reorganization or relief of debtors or any amendment to,
succession to or change in any such law.
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"Board of Directors" means the board of directors of the
Issuer or any Guarantor, as the case may be, or any duly authorized committee of
such board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Issuer or any Guarantor, as the
case may be, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day, except a Saturday or Sunday, on
which commercial banks in the City of New York and the City of London are open
for business.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its Restricted Subsidiaries on a Consolidated basis under any
capital lease of (or other agreement conveying the right to use) real or
personal property which, in accordance with GAAP, is required to be recorded as
a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Persons' capital stock, other equity interests whether now outstanding
or issued after the date of this Indenture, partnership interests (whether
general or limited), any other interest or participation that confers on a
Person that right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person and any rights (other than debt
securities convertible into Capital Stock), warrants or options exchangeable for
or convertible into such Capital Stock.
"Change of Control" means the occurrence of any of the
following events: (i) prior to the consummation of the initial Public Equity
Offering, any event the result of which is that the Permitted Holders are or
become the "beneficial owners" (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) of less than 50% of
the total outstanding Voting Stock of the Company; (ii) on and after the
consummation of the initial Public Equity Offering, any "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is or becomes 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 more than 35% of the total outstanding
Voting Stock of the Company and Permitted Holders do not beneficially own a
larger percentage of such Voting Stock than such Person; (iii) 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 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 then in
office; (iv) the Company consolidates with or merges with or into any Person or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with
or merges into or with the Company, in any such event pursuant to a transaction
in which the outstanding Voting Stock of the Company is converted into or
exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding Voting Stock of the Company is changed
into or exchanged for (x) Voting Stock of the surviving corporation which is not
Redeemable Capital Stock or (y) cash, securities and other property (other than
Capital Stock of the surviving corporation) in an amount which could be paid by
the Company as a
4
Restricted Payment as described under Section 1009 (and such amount shall be
treated as a Restricted Payment subject to the provisions of Section 1009
hereof) and (B) immediately after such transaction, no "person" or "group,"
other than Permitted Holders, is 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 securities 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 more than 35% of the total outstanding
Voting Stock of the surviving corporation; (v) the Issuer or any Guarantor is
liquidated or dissolved or adopts a plan of liquidation or dissolution other
than in a transaction which complies with the provisions described under Article
Eight and Section 1019 or (vi) except in connection with a merger of the Company
and the Issuer, the Company ceases to own directly or indirectly all of the
Capital Stock of the Issuer. For purposes of this definition, any transfer of an
equity interest of an entity that was formed for the purpose of acquiring Voting
Stock of the Company will be deemed to be a transfer of such portion of such
Voting Stock as corresponds to the portion of the equity of such entity that has
been so transferred.
"Clearstream" means Clearstream Banking societe anonyme (or
any successor securities clearing system).
"Commission" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act, or
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Securities Act,
Exchange Act and Trust Indenture Act then the body performing such duties at
such time.
"Commodity Price Protection Agreement" means any forward
contract, commodity swap, commodity option or other similar financial agreement
or arrangement relating to, or the value of which is dependent upon,
fluctuations in commodity prices.
"Common Depositary" means a depositary common to Euroclear and
Clearstream, being initially The Bank of New York, until a successor Common
Depositary, if any, shall have become such pursuant to this Indenture, and
thereafter Common Depositary shall mean or include each Person who is then a
Common Depositary hereunder.
"Company" means Lucite International Group Holdings Limited, a
corporation incorporated under the laws of England and Wales, until a successor
Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor Person.
"Consolidated Fixed Charge Coverage Ratio" of any Person
means, for any period, the ratio of (a) the sum of Consolidated Net Income
(Loss), and in each case to the extent deducted in computing Consolidated Net
Income (Loss) for such period, Consolidated Interest Expense, Consolidated
Income Tax Expense, Consolidated Non-cash Charges and Specified Exceptional
Items for such period, of such Person and its Restricted Subsidiaries on a
Consolidated basis, all determined in accordance with GAAP, less all noncash
items increasing Consolidated Net Income for such period and less all cash
payments, other than Specified Exceptional Items, during such period relating to
noncash charges that were added back to Consolidated Net Income in determining
the Consolidated Fixed Charge Coverage Ratio in any prior period to (b) the sum
of Consolidated Interest Expense for such period and cash and noncash dividends
paid on any Preferred Stock of such Person during such period, in each case
after giving pro forma effect to (i) the incurrence of the Indebtedness giving
rise to the need to make such calculation and (if applicable) the application of
the net proceeds
5
therefrom, including to refinance other Indebtedness, as if such Indebtedness
was incurred, and the application of such proceeds occurred, on the first day of
such period; (ii) 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 daily balance of such Indebtedness during such period); (iii) in the
case of Acquired Indebtedness or any acquisition occurring at the time of the
incurrence of such Indebtedness, the related acquisition, assuming such
acquisition had been consummated on the first day of such period; and (iv) 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,
whether by merger, stock purchase or sale or asset purchase or sale, 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; provided that (i) in making such computation, the
Consolidated Interest Expense attributable to interest on any Indebtedness
computed on a pro forma basis and (A) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period and (B) which was not outstanding during
the period for which the computation is being made but which bears, at the
option of such Person, a fixed or floating rate of interest, shall be computed
by applying at the option of such Person either the fixed or floating rate and
(ii) in making such computation, the Consolidated Interest Expense of such
Person attributable to interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the average
daily balance of such Indebtedness during the applicable period.
"Consolidated Income Tax Expense" of any Person means, for any
period, the provision for federal, state and local income taxes of the U.S.,
U.K., or any other jurisdiction of such Person and its Consolidated Restricted
Subsidiaries for such period as determined in accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, the sum of (a) the interest expense of such Person
and its Restricted Subsidiaries for such period, on a Consolidated basis,
including, without limitation, (i) amortization of debt discount, (ii) the net
costs associated with Interest Rate Agreements, Currency Hedging Agreements and
Commodity Price Protection Agreements (including amortization of discounts),
(iii) the interest portion of any deferred payment obligation, (iv) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers acceptance financing and (v) accrued interest, plus (b)(i)
the interest component of the Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Restricted Subsidiaries
during such period and (ii) all capitalized interest of such Person and its
Restricted Subsidiaries plus (c) the interest expense under any Guaranteed Debt
of such Person and any Restricted Subsidiary to the extent not included under
clause (a)(iv) above, whether or not paid by such Person or its Restricted
Subsidiaries; provided that foreign exchange gains and losses arising on
external debt shall not be included in such calculation.
"Consolidated Net Income (Loss)" of any Person means, for any
period, the Consolidated net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a Consolidated basis as determined in accordance
with GAAP, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication, (i) all extraordinary gains or losses
net of taxes (less all fees and expenses relating thereto), (ii) the portion of
net income (or loss) of such Person and its Restricted Subsidiaries on a
Consolidated basis allocable
6
to minority interests in unconsolidated Persons or Unrestricted Subsidiaries to
the extent that cash dividends or distributions have not actually been received
by such Person or one of its Consolidated Restricted Subsidiaries, (iii) net
income (or loss) of any Person combined with such Person or any of its
Restricted Subsidiaries on a "pooling of interests" basis attributable to any
period prior to the date of combination, (iv) any gain or loss, net of taxes,
realized upon the termination of any employee pension benefit plan, (v) gains or
losses, net of taxes (less all fees and expenses relating thereto), in respect
of dispositions of assets other than in the ordinary course of business, (vi)
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 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 shareholders other than by encumbrances which are permitted by
clauses (i), (iv) or (viii) of Section 1017, (vii) any restoration to net income
of any contingency reserve, except to the extent provision for such reserve was
made out of income accrued at any time following the date of this Indenture or
(viii) any net gain arising from the acquisition of any securities or
extinguishment, under GAAP, of any Indebtedness of such Person.
"Consolidated Non-cash Charges" of any Person means, for any
period, the aggregate depreciation, amortization and other non-cash charges of
such Person and its Subsidiaries on a Consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period).
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries if and
to the extent the accounts of such Person and each of its subsidiaries would
normally be consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 000
Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000, Attention: Corporate Trust
Administration.
"Currency Hedging Agreements" means one or more of the
following agreements: foreign exchange contracts, currency swap agreements or
other similar agreements or arrangements designed to protect against the
fluctuations in currency values.
"Definitive Registered Security" means any Security
substantially in the form set forth in Sections 202 and 203 hereof issued in
accordance with Section 306(b).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Debt" means (1) any Indebtedness
outstanding under the Bank Credit Agreement and (2) any other Guarantor Senior
Indebtedness permitted under this Indenture the outstanding principal amount of
which is (pound)25,000,000 or more and that has been designated by the Issuer as
"Designated Senior Debt".
"Directive" means the European Union Directive on the taxation
of savings income, which was adopted by the ECOFIN Council of the European Union
(the Council of European finance and economics ministers) on June 3, 2003.
7
"Director" means a member of the Board of Directors.
"Disinterested Director" means, with respect to any
transaction or series of related transactions, a member of the Board of
Directors of the Company who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of related
transactions.
"Enforcement Action" means, with respect to any Indebtedness,
any action whatsoever taken by a creditor or creditors or agent or trustee on
its or their behalf against the Company or any Subsidiary to:
(a) demand payment, declare prematurely due and payable
or otherwise seek to accelerate payment of all or any part of any such
Indebtedness;
(b) recover all or any part of the Indebtedness
(including, without limitation, by exercising any rights of set-off or
combination of accounts);
(c) exercise or enforce or require any agent or trustees
to exercise or enforce any rights under or pursuant to the provisions
of any guarantee granted by the Company or any Subsidiary in relation
to all or any part of such Indebtedness or any rights or security
granted pursuant to any security documents or other security interest;
(d) petition for (or take any other steps or action which
may lead to) an Insolvency Event (as defined in the Intercreditor Deed
in effect on the date hereof) in relation to the Company or any
Subsidiary; or
(e) commence legal proceedings against the Company or any
Subsidiary.
Notwithstanding the foregoing, Enforcement Action shall not
include:
(1) taking any action necessary to preserve the validity
and existence of their claims for the full amounts due to them under
the Subordinated Guarantees provided that such action shall not include
any of the actions described under paragraphs (a) to (d) above;
(2) (to the extent entitled by law) taking action against
any creditor or creditors of the Company or Subsidiary, agent, trustee
or receiver acting on behalf of such creditors to challenge the basis
on which any sale or disposal is to take place pursuant to powers
granted to such persons under any security documentation; or
(3) bringing legal proceedings against any person in
connection with any securities law violation or common law fraud.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of
the Euroclear System (or any successor securities clearing system).
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended, or any successor statute, and the rules and regulations promulgated
by the Commission thereunder.
"Exchange Offer" means the exchange offer by the Issuer of
Series B Securities for Existing Securities to be effected pursuant to an
Exchange Offer Agreement.
8
"Exchange Offer Agreement" means an Exchange Offer Agreement
among the Issuer, the Guarantors and the Initial Purchasers relating to the
exchange of Series B Securities for Existing Securities.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length free market
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy. Fair Market Value
shall be determined by the Board of Directors of the Company acting in good
faith and shall be evidenced by a resolution of the Board of Directors.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United Kingdom, consistently
applied, in effect from time to time.
"Global Securities" means the Series A Global Securities and
the Series B Global Securities.
"Guarantee" means the guarantee by any Guarantor of the
Issuer's Indenture Obligations.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness below guaranteed directly or indirectly in any manner by such
Person, or in effect guaranteed directly or indirectly by such Person through an
agreement (i) to pay or purchase such Indebtedness or to advance or supply funds
for the payment or purchase of such Indebtedness, (ii) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell services, primarily
for the purpose of enabling the debtor to make payment of such Indebtedness or
to assure the holder of such Indebtedness against loss, (iii) to supply funds
to, or in any other manner invest in, the debtor (including any agreement to pay
for property or services without requiring that such property be received or
such services be rendered), (iv) to maintain working capital or equity capital
of the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or to cause such debtor to achieve certain
levels of financial performance or (v) otherwise to assure a creditor against
loss; provided that the term "guarantee" shall not include endorsements for
collection or deposit, in either case in the ordinary course of business.
"Guarantor" means each Senior Guarantor and each Subordinated
Guarantor named herein and any Subsidiary which is a guarantor of the
Securities, including any Person that is required after the date of this
Indenture to execute a guarantee of the Securities pursuant to Section 1013
until a successor replaces such party pursuant to the applicable provisions of
this Indenture and, thereafter, shall mean such successor.
"Guarantor Senior Indebtedness" means with respect to any
Subordinated Guarantor, the principal of, premium, if any, and interest
(including interest, to the extent allowable, accruing after the filing of a
petition initiating any proceeding under any Bankruptcy Law) on any Indebtedness
of such Subordinated Guarantor (other than as otherwise provided in this
definition), whether outstanding on the date of this Indenture or thereafter
created, incurred or assumed, and whether at any time owing, actually or
contingent, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to such Subordinated Guarantor's Guarantee of the Securities.
Notwithstanding the foregoing, "Guarantor Senior Indebtedness" shall not include
(i) Indebtedness evidenced by the Securities or the Guarantees, (ii)
Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of such
9
Person, (iii) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11 United States Code or similar laws in
other jurisdictions, is without recourse to such Person, (iv) Indebtedness which
is represented by Redeemable Capital Stock, (v) any liability for taxes owed or
owing by such Person to the extent such liability constitutes Indebtedness, (vi)
Indebtedness of such Person to a Subsidiary or any other Affiliate of such
Person or any of such Affiliate's Subsidiaries, (vii) to the extent it might
constitute Indebtedness, amounts owing for goods, materials or services
purchased in the ordinary course of business or consisting of trade accounts
payable owed or owing by the such Person, and amounts owed by such Person for
compensation to employees or services rendered to such Person, (viii) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture and (ix) Indebtedness evidenced by any guarantee of any
Subordinated Indebtedness or Pari Passu Indebtedness of the Company or any of
its Restricted Subsidiaries.
"Hedging Obligations" means with respect to any Person, the
obligations of such Person under Interest Rate Agreements, Currency Hedging
Agreements or Commodity Price Protection Agreements.
"Holder" means the Person in whose name a Security is
registered on the Security Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
principal component of all obligations of such Person to pay the deferred
purchase price of property or services, excluding any trade payables and other
accrued current liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, acceptance facilities or other similar facilities (including
reimbursement obligations with respect thereto except to the extent such
reimbursement obligation relates to a trade payable and such obligation is
satisfied within 30 days of incurrence), (ii) all obligations of such Person
evidenced by bonds, notes, debentures or other similar instruments, (iii) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such property), but
excluding trade payables arising in the ordinary course of business, (iv) all
obligations under Interest Rate Agreements, Currency Hedging Agreements or
Commodity Price Protection Agreements of such Person, (v) all Capital Lease
Obligations of such Person (the amount of any such obligations to be equal at
any time to the termination value of such agreement or arrangement giving rise
to such obligation that would be payable by such Person at such time), (vi) all
Indebtedness referred to in clauses (i) through (v) above of other Persons and
all dividends of other Persons, the payment of which is secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien, upon or with respect to property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such Indebtedness
(provided, however, that the amount of such Indebtedness shall be the lesser of
(A) the Fair Market Value of such asset at such date of determination and (B)
the amount of such Indebtedness of such other Person), (vii) all Guaranteed Debt
of such Person, (viii) all Redeemable Capital Stock issued by such Person valued
at the greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends, (ix) Preferred Stock of any Restricted
Subsidiary or any Guarantor and (x) any amendment, supplement, modification,
deferral, renewal, extension, refunding or refinancing of any liability of the
types referred to in clauses (i) through (viii) above. For purposes hereof,
10
the "maximum fixed repurchase price" of any Redeemable Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to this Indenture, and if such price is based upon, or measured by, the
Fair Market Value of such Redeemable Capital Stock, such Fair Market Value to be
determined in good faith by the Board of Directors of the issuer of such
Redeemable Capital Stock.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules thereto) and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Issuer
and any other obligor under this Indenture or under the Securities, including
any Guarantor, to pay principal of, premium, if any, any Additional Amounts and
interest when due and payable, and all other amounts due or to become due under
or in connection with this Indenture, the Securities and the performance of all
other obligations to the Trustee and the Holders under this Indenture and the
Securities, according to the respective terms thereof.
"Initial Purchasers" means Xxxxxxx Xxxxx International and
Deutsche Bank AG London or any other financial institution acting as a placement
agent or underwriter with respect to any Securities issued under this Indenture.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements: interest rate protection agreements (including, without limitation,
interest rate swaps, caps, floors, collars and similar agreements) and/or other
types of interest rate hedging agreements from time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance (other than advances to customers in the ordinary course
of business), loan (including guarantees), or other extension of credit 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, acquisition or ownership by such Person of any Capital
Stock, bonds, notes, debentures or other securities issued or owned by any other
Person and all other items that would be classified as investments on a balance
sheet prepared in accordance with GAAP, provided that:
1. Hedging Obligations entered into in the ordinary course of
business and in compliance with this Indenture; and
2. endorsements of negotiable instruments and documents in the
ordinary course of business;
shall in each case not be deemed to be an Investment.
For purposes of Section 1009:
1. "Investment" will include the portion (proportionate to the
Company's equity interest in a Restricted Subsidiary to be designated
as an Unrestricted Subsidiary) of the Fair Market Value of the net
assets of such Restricted Subsidiary at the time that such Restricted
Subsidiary is designated an Unrestricted Subsidiary; provided,
11
however, that upon a redesignation of such Subsidiary as a Restricted
Subsidiary, the Company will be deemed to continue to have a permanent
"Investment" in an Unrestricted Subsidiary in an amount (if positive)
equal to (a) the Company's "Investment" in such Subsidiary at the time
of such redesignation less (b) the portion (proportionate to the
Company's equity interest in such Subsidiary) of the Fair Market Value
of the net assets (as conclusively determined by the Board of Directors
of the Company in good faith) of such Subsidiary at the time that such
Subsidiary is so re-designated a Restricted Subsidiary; and
2. any property transferred to or from an Unrestricted Subsidiary
will be valued at its Fair Market Value at the time of such transfer,
in each case as determined in good faith by the Board of Directors of
the Company.
"Issue Date" means, in respect of any Security, the date on
which such Security was originally issued.
"Issuer" means Lucite International Finance plc, until a
successor person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Issuer" shall mean such successor Person.
"Issuer Request" or "Issuer Order" means a written request or
order signed in the name of the Issuer or any of the Guarantors by any one of
its Chairman of the Board, its President, its Chief Executive Officer, its Chief
Financial Officer or a Vice President (regardless of Vice Presidential
designation), and by any one of its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Lien" means any mortgage or deed of trust, charge, pledge,
lien (statutory or otherwise), privilege, security interest, assignment,
easement, hypothecation, claim, preference, priority or other encumbrance upon
or with respect to any property of any kind (including any conditional sale,
capital lease or other title retention agreement and any leases in the nature
thereof), real or personal, movable or immovable, now owned or hereafter
acquired. A Person will be deemed to own subject to a Lien any property which it
has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capitalized Lease Obligation or other title
retention agreement.
"Maturity" means, when used with respect to the Securities,
the date on which the principal of the Securities becomes due and payable as
therein provided or as provided in this Indenture, whether at Stated Maturity,
the Offer Date or the redemption date and whether by declaration of
acceleration, offer in respect of Excess Proceeds, Change of Control Offer in
respect of a Change of Control, call for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. or any
successor rating agency.
"Net Cash Proceeds" means (a) with respect to any Asset Sale
by any Person, the proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash or Temporary Cash Investments including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed of for, cash or Temporary Cash Investments (except
to the extent that such obligations are financed or sold with recourse to the
Company or any Restricted Subsidiary) net of (i) brokerage commissions and other
reasonable fees and expenses (including fees and expenses of counsel and
investment bankers) related to such Asset Sale, (ii) provisions for all taxes
payable as a result of such Asset Sale, (iii) payments made to retire
Indebtedness where payment of such Indebtedness is secured by the assets or
properties the subject of such Asset Sale, (iv) amounts required to be paid to
any Person
12
(other than the Company or any Restricted Subsidiaries) owning a beneficial
interest in the assets subject to the Asset Sale and (v) appropriate amounts to
be provided by the Company or any Restricted Subsidiaries as the case may be, as
a reserve, in accordance with GAAP, against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiaries as the
case may be, after 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, all as reflected in an Officers' Certificate delivered to the
Trustee and (b) with respect to any issuance or sale of Capital Stock or
options, warrants or rights to purchase Capital Stock, or debt securities or
Capital Stock that have been converted into or exchanged for Capital Stock as
referred to in Section 1009 the proceeds of such issuance or sale in the form of
cash or Temporary Cash Investments including payments in respect of deferred
payment obligations when received in the form of, or stock or other assets when
disposed of for, cash or Temporary Cash Investments (except to the extent that
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary), net of attorney's fees, accountant's fees, and
brokerage, consultation, underwriting and other fees (including placement
agents' fees, listing fees, or other discounts and commissions) and expenses
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result thereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President, the Chief Executive Officer, the Chief
Financial Officer or a Vice President (regardless of Vice Presidential
designation), and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Issuer or any Guarantor, as the case may be, and in
form and substance reasonably satisfactory to, and delivered to, the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Issuer or any Guarantor, unless an Opinion of Independent
Counsel is required pursuant to the terms of this Indenture.
"Opinion of Independent Counsel" means a written opinion of
counsel, who may be regular outside counsel for the Issuer or any Guarantor, but
which is issued by a Person who is not an employee or consultant (other than
non-employee legal counsel) of the Issuer or any Guarantor.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Issuer or any Guarantor) in trust or
set aside and segregated in trust by the Issuer or any Guarantor (if the Issuer
or such Guarantor shall act as its own Paying Agent) for the Holders of such
Securities; provided that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
reasonably satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections
402 and 403, with respect to which the Issuer or any Guarantor has effected
defeasance or covenant defeasance as provided in Article Four; and
13
(d) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been
presented to the Trustee and the Issuer and the relevant Guarantor proof
reasonably satisfactory to each of them that such Securities are held by a bona
fide purchaser in whose hands the Securities are valid obligations of the Issuer
or such Guarantor; provided, however, that in determining whether the Holders of
the requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Issuer, any Guarantor, or any other obligor upon the
Securities or any Affiliate of the Issuer, any Guarantor or such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
reasonable satisfaction of the Trustee the pledgee's right so to act with
respect to such Securities and that the pledgee is not the Issuer, any Guarantor
or any other obligor upon the Securities or any Affiliate of the Issuer, any
Guarantor or such other obligor.
"Pari Passu Indebtedness" means (a) any Indebtedness of the
Issuer that is pari passu in right of payment to the Securities including the
Existing Securities and (b) with respect to any Guarantee, Indebtedness which
ranks pari passu in right of payment to such Guarantee.
"Paying Agent" means any Person (including the Issuer)
authorized by the Issuer to pay the principal of, premium, if any, or any
Additional Amounts and interest on, any Securities on behalf of the Issuer.
"Permitted Holders" means (i) Charterhouse Development Capital
Holdings Limited, Charterhouse General Partners VI Limited, Fund Nominees Ltd.,
Xxxxxx Xxxxxxxxx Limited, Ineos Capital Limited, Xxxxx X. Xxxxxxxxx, Xxxxxx
Xxxxxx, Xxxx Xxxxx, Xxxx Verrijckt, Xxxxxxx Xxxxxx, (ii) any fund managed by
either (a) Xxxxxx Xxxxxxxxx Limited, (b) Charterhouse General Partners VI
Limited or (c) any Person directly or indirectly controlled by, controlling or
under common control with Xxxxxx Xxxxxxxxx Limited or Charterhouse General
Partners VI Limited, (iii) each investor in any such fund or funds in its
capacity both as a fund investor or as a co-investor with such fund or funds,
(iv) trusts for the benefit of such Persons or the spouses, issue, parents or
other relatives of such individual Persons, (v) entities controlling or
controlled by such Persons, (vi) in the event of the death of any such
individual Person, heirs or testamentary legatees of such Person and (vii)
employee benefit trusts for employees of the Company or any of its Subsidiaries
pursuant to an employee share plan.
"Permitted Investment" means (i) Investments in any Restricted
Subsidiary (including the purchase of Capital Stock of any Restricted Subsidiary
from a Person other than an Affiliate of the Company) or any Person which, as a
result of such Investment, (a) becomes a Restricted Subsidiary or (b) is merged
or consolidated with or into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or any Restricted Subsidiary; (ii)
Indebtedness of the Company or a Restricted Subsidiary described under clauses
(iv), (v) and (vi) of the definition of "Permitted Indebtedness;" (iii)
Investments in any of the Securities; (iv) cash and Temporary Cash Investments;
(v) Investments acquired by the Company or any Restricted Subsidiary in
connection with an Asset Sale permitted under Section 1012 to the extent such
Investments are non-cash proceeds as permitted under such covenant; (vi)
Investments in existence on the date of this Indenture; (vii) receivables owing
to the Company or any Restricted Subsidiary created or acquired in the ordinary
course of business and payable or
14
dischargeable in accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances; (viii)
payroll, travel and similar advances to cover matters that are expected at the
time of such advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of business; (ix) loans or
advances to employees made in the ordinary course of business consistent with
past practices of the Company or such Restricted Subsidiary not to exceed
(pound)2,000,000 at any one time outstanding; (x) stock, obligations or
securities received in settlement of debts created in the ordinary course of
business and owing to the Company or any Restricted Subsidiary or in
satisfaction of judgments or pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of a debtor; (xi) Hedging
Obligations, which transactions or obligations are incurred in compliance with
Section 1008; and (xii) Investments in joint ventures or similar entities that
are not Restricted Subsidiaries and are primarily engaged in a chemicals
business not to exceed (pound)20,000,000 in the aggregate outstanding at any one
time. In connection with any assets or property contributed or transferred to
any Person as an Investment, such property and assets shall be equal to the Fair
Market Value (as determined by the Company's Board of Directors) at the time of
Investment.
"Permitted Junior Securities" means (1) share capital of
Lucite International Holdings Limited or (2) debt securities of Lucite
International Holdings Limited or any other Subordinated Guarantor that are
subordinated to all of the Designated Senior Debt to substantially the same
extent as, or to a greater extent than, the Subordinated Guarantees are
subordinated to the Designated Senior Debt pursuant to this Indenture.
"Permitted Lien" means:
(a) any Lien existing as of May 4, 2000;
(b) any Lien arising by reason of (1) any judgment,
decree or order of any court, to the extent not otherwise resulting in an Event
of Default, and any Liens that are required to protect or enforce any rights in
any administrative, arbitration or other court proceedings in the ordinary
course of business; (2) taxes, assessments or other governmental charges not yet
delinquent or which are being contested in good faith; (3) security for payment
of workers' compensation or other insurance (including general liability
exposure of the Company and its Restricted Subsidiaries); (4) good faith
deposits in connection with tenders, bids, leases and contracts (other than
contracts for the payment of money); (5) zoning restrictions, easements,
licenses, reservations, title defects, rights of others for rights of way,
utilities, sewers, electric lines, telephone or telegraph lines, and other
similar purposes, provisions, covenants, conditions, waivers, restrictions on
the use of property or minor irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Restricted
Subsidiary or the value of such property for the purpose of such business; (6)
deposits to secure public or statutory obligations, or in lieu of surety or
appeal bonds; or (7) operation of law in favor of mechanics, carriers,
warehousemen, landlords, materialmen, laborers, employees or suppliers, incurred
in the ordinary course of business for sums which are not yet delinquent or are
being contested in good faith by negotiations or by appropriate proceedings
which suspend the collection thereof;
15
(c) any Lien securing Acquired Indebtedness created prior
to (and not created in connection with, or in contemplation of) the incurrence
of such Indebtedness by the Company or any Restricted Subsidiary;
(d) any Lien to secure the performance bids, trade
contracts, leases (including, without limitation, statutory and common law
landlord's liens), statutory obligations, surety and appeal bonds, letters of
credit and other obligations of a like nature and incurred in the ordinary
course of business of the Company or any Restricted Subsidiary;
(e) any Lien securing Indebtedness permitted to be
incurred under Hedging Obligations;
(f) any Lien securing Capital Lease Obligations or
Purchase Money Obligations incurred in accordance with this Indenture (including
clause (viii) of the definition of Permitted Indebtedness) and which are
incurred or assumed solely in connection with the acquisition, development or
construction of real or personal, moveable or immovable property within 180 days
of such incurrence or assumption; provided that such Liens only extend to such
acquired, developed or constructed property, such Liens secure Indebtedness in
an amount not in excess of the original purchase price or the original cost of
any such assets or repair, addition or improvement thereto, and the incurrence
of such Indebtedness is permitted by Section 1008;
(g) any Lien securing the Senior Credit Facilities
permitted by Clause (i) of the definition of "Permitted Indebtedness", except
any Lien on Capital Stock or assets of the Company and the Capital Stock of
direct Restricted Subsidiaries of the Company;
(h) any Lien securing Indebtedness of any Subordinated
Guarantor or any Restricted Subsidiary of any Subordinated Guarantor (which is
not a Guarantor of the Securities) to the extent such Indebtedness is not
subordinated to any other Indebtedness of such Subordinated Guarantor or
Restricted Subsidiary;
(i) Liens in favor of the Company or any Guarantor;
(j) Liens arising solely by virtue of any banker's Liens,
rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a depositary institution; provided that such deposit
account is not intended by the Company or any Restricted Subsidiary to provide
collateral to the depository institution;
(k) Liens arising from Uniform Commercial Code financing
statement filings regarding operating leases entered into by the Company and its
Restricted Subsidiaries in the ordinary course of business;
(l) (x) mortgages, liens, security interests,
restrictions, encumbrances or any other matters or record that have been placed
by any developer, landlord or other third party on property over which the
Company or any Guarantor has easement rights or on any real property leased by
the Company or any Guarantor and subordination or similar agreements relating
thereto and (y) any condemnation or eminent domain proceedings or compulsory
purchase order affecting real property;
(m) any provision for the retention of title to any asset
by the vendor or transferor of such asset which asset is acquired by the Company
or any Guarantor in a transaction entered into the ordinary course of business
of the Company or such Guarantor
16
and for which kind of transaction it is normal market practice for such
retention of title provision to be included;
(n) Liens that secure Indebtedness of a Person existing
at the time such Person becomes a Restricted Subsidiary; provided, however, that
such Liens are not created, incurred or assumed in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary; provided
further, however, that such Liens may not extend to any other property owned by
the Company or any Restricted Subsidiary;
(o) Liens on property at the time the Company or a
Restricted Subsidiary acquired the property, including any acquisition by means
of a merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that such Liens are not created, incurred or
assumed in connection with, or in contemplation of, such acquisition; provided
further, however, that such Liens may not extend to any other property owned by
the Company or any Restricted Subsidiary; and
(p) any extension, renewal, refinancing or replacement,
in whole or in part, of any Lien described in the foregoing clauses (a) through
(o) provided that any such Lien is limited to all or part of the same property
or assets (plus improvements, accessions, proceeds or dividends or distributions
in respect thereof) that secured (or, under the written arrangements under which
the original Lien arose, could secure) the Indebtedness being refinanced or is
in respect of property that is the security for a Permitted Lien hereunder.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 308 in exchange for a
mutilated Security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same debt as the mutilated, lost, destroyed or stolen
Security.
"Preferred Stock" means, with respect to any Person, any
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 the Capital Stock of any other class in such Person.
"Public Equity Offering" means an underwritten public offering
of ordinary shares (other than Redeemable Capital Stock) of the Company or a
parent company of the Company with gross proceeds to the Company or such parent
company of at least (pound)50,000,000 and, with respect to offerings by a parent
company, pursuant to which the net cash proceeds are contributed to the Company
in the form of a subscription for, or a capital contribution in respect of,
Qualified Capital Stock.
"Purchase Money Obligation" means any Indebtedness secured by
a Lien on assets related to the business of the Company and any additions and
accessions thereto, which are purchased by the Company or any Restricted
Subsidiary at any time after the Securities are issued; provided that (i) the
security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively, a "Purchase
Money Security Agreement") shall be entered into within 180 days after the
purchase or substantial completion of the construction of such assets and shall
at all times be confined solely to the assets so purchased or acquired, any
additions and accessions thereto and any proceeds
17
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 Purchase Money Security Agreement is entered into
exceed 100% of the purchase price 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 or acquired, any additions and
accessions thereto and any proceeds therefrom.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock of such Person.
"Recognized Stock Exchange" means a recognized stock exchange
within the meaning of Section 841 of the U.K. Income and Corporation Taxes Act
of 1988.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable or otherwise, is or upon the happening of an event or passage of
time would be, required to be redeemed prior to the final Stated Maturity of the
principal of the Securities or is redeemable at the option of the holder thereof
at any time prior to such final Stated Maturity (other than upon a change of
control of the Company in circumstances where the Holders of the Securities
would have similar rights), or is convertible into or exchangeable for debt
securities at any time prior to such final Stated Maturity at the option of the
holder thereof.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to the Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means May 1 or November 1 (whether or not a Business Day) next
preceding such Interest Payment Date.
"Representative" means any agent, trustee or other such
representative of the lenders of the Designated Senior Debt, provided that there
shall be only one Representative designated for all Designated Senior Debt and
such Representative shall be designated by the lenders under the Bank Credit
Agreement so long as any obligations remain outstanding thereunder.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office, including any vice
president, assistant vice president, or any other officer or assistant officer
of the Trustee appointed hereunder to whom any corporate trust matter is
referred because of his or her knowledge of and familiarity with the particular
subject and who has direct responsibility for the administration of this
Indenture.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of Directors of the Company by a Board
Resolution delivered to the Trustee as an Unrestricted Subsidiary pursuant to
and in compliance with Section 1018 hereof.
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which the Company or a Subsidiary
sells or transfers any property or
18
asset in connection with the leasing, or the resale against installment
payments, of such property or asset to the seller or transferor.
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw Hill Companies, Inc. or any successor rating agency.
"Securities Act" means the U.S. Securities Act of 1933, as
amended, or any successor statute, and the rules and regulations promulgated by
the Commission thereunder.
"Senior Credit Facilities" means the credit facilities made
available pursuant to any Bank Credit Agreement.
"Senior Guarantee" means a guarantee by a Senior Guarantor of
the Issuer's Indenture Obligations on a senior basis.
"Senior Guarantors" means the Company and Lucite International
Investment Limited and any other Subsidiary that is required after the date of
this Indenture to execute a Senior Guarantee of the Securities pursuant to
Section 1013 until a successor replaces such party pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Significant Restricted Subsidiary" means, at the date of
determination, any Restricted Subsidiary that together with its Restricted
Subsidiaries (i) for the most recent fiscal year, accounted for more than 10% of
the Consolidated revenues of the Company or (ii) as of the end of the most
recent fiscal quarter, was the owner of more than 10% of the Consolidated assets
of the Company.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"Specified Affiliate Payments" means:
(1) the repurchase of any (i) Capital Stock of the
Company or (ii) employee loan stock of the Company for a repurchase price not
greater than the original purchase price paid for such loan stock, in each case
held by any future, present or former employee, director or officer of the
Company or any of its Restricted Subsidiaries (or their estates or beneficiaries
under their estates) pursuant to any management equity subscription agreement,
stock option agreement, put agreement, consulting agreement, stockholder
agreement or similar agreement or employee loan stock scheme that may be in
effect from time to time (or dividends from the Company to the parent of the
Company to effect the same in respect of Capital Stock and employee loan stock
of such parent held pursuant to any such agreement or scheme by any future,
present or former employee, director or officer of the Company or any of its
Restricted Subsidiaries (or their estates or beneficiaries under their
estates)); provided that the aggregate price paid for all such repurchased,
redeemed, acquired or retired Capital Stock and employee loan stock shall not
exceed (pound)2,000,000 in any calendar year (with unused amounts in any
calendar year, beginning with calendar year 2000, being carried over to
succeeding calendar years subject to a maximum amount of repurchases,
redemptions or other acquisitions pursuant to this clause (1) of
(pound)4,000,000 in any calendar year); or
(2) dividends or distributions paid by the Company to the
parent of the Company (a) in amounts equal to amounts required for the parent of
the Company to pay (i) audit fees and expenses, (ii) directors' fees,
remuneration and expenses, (iii) corporate overhead and salary or other
compensation to employees allocable to the Company, (iv) other expenses required
to maintain its corporate existence and (v) payments of management
19
services and other fees pursuant to agreements in effect on the date of this
Indenture, provided that the aggregate amount paid by the Company pursuant to
this clause (2) shall not exceed (pound)1,250,000 in any fiscal year; or
(3) the payment of dividends or distributions, or loans,
by the Company to its parent in amounts equal to amounts required by its parent
to pay income or corporation taxes or value added tax ("VAT"), but only to the
extent such income or corporation taxes or VAT are attributable to the business
of the Company or its Restricted Subsidiaries.
"Specified Exceptional Items" means all non-recurring charges
arising from predecessor owner allocated central management expenses, and,
restructuring charges including salary costs for terminated employees,
discontinued head office administrative costs and relocation costs, in each case
incurred prior to the Issue Date.
"Stated Maturity" means, when used with respect to any
Indebtedness or any installment of interest thereon, the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest, as the case may be, is due and payable.
"Subordinated Guarantee" means a guarantee by a Subordinated
Guarantor of the Issuer's Indenture Obligations on a senior subordinated basis.
"Subordinated Guarantors" means Lucite International Holdings
Limited and Lucite International Holdco Limited and any other Subsidiary which
is a guarantor of the Securities (other than the Senior Guarantors), including
any Person that is required after the date of this Indenture to execute a
Subordinated Guarantee of the Securities pursuant to Section 1013 until a
successor replaces such party pursuant to the applicable provisions of this
Indenture and, thereafter, shall mean such successor.
"Subordinated Indebtedness" means Indebtedness of the Issuer,
the Company or another Guarantor subordinated in right of payment to the
Securities or a Guarantee, as the case may be.
"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 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 in
which such Person, or one or more other Subsidiaries of such Person, or such
Person and one or more other Subsidiaries, 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.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 308 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Temporary Cash Investments" means (i) any evidence of
Indebtedness, maturing not more than one year after the date of acquisition,
issued by the United States of America, the U.K., France, Germany, Japan or
Switzerland, or an instrumentality or agency thereof, and guaranteed fully as to
principal, premium, if any, and interest by the United States of America,
20
the U.K., France, Germany, Japan or Switzerland, (ii) any certificate of
deposit, maturing not more than one year after the date of acquisition, issued
by, or time deposit of, a commercial banking institution that is a member of the
Federal Reserve System or a bank or trust company organized in any state in the
European Union or Japan and that has combined capital and surplus and undivided
profits of not less than $500,000,000, whose debt has a rating, at the time as
of which any investment therein is made, of "P-1" (or higher) according to
Moody's or any successor rating agency or "A-1" (or higher) according to S&P or
any successor rating agency, (iii) commercial paper, maturing not more than one
year after the date of acquisition, issued by a corporation (other than an
Affiliate or Subsidiary of the Company) organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia or
any state in the European Union or Japan with a rating, at the time as of which
any investment therein is made, of "P-1" (or higher) according to Moody's or
"A-1" (or higher) according to S&P, (iv) any money market deposit accounts
issued or offered by a commercial bank organized in the U.S. or in any state in
the European Union or Japan having capital and surplus in excess of
$500,000,000; provided that the short term debt of such commercial bank has a
rating, at the time of Investment, of "P-1" (or higher) according to Moody's or
"A-1" (or higher) according to S&P and (v) other short-term investments utilized
by Subsidiaries in accordance with normal investment practices for cash
management not exceeding a pound sterling equivalent amount of (pound)1,000,000
in aggregate principal amount outstanding at any time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture, until a successor trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor trustee.
"Trust Indenture Act" means the U.S. Trust Indenture Act of
1939, as amended, or any successor statute.
"Unrestricted Subsidiary" means any Subsidiary of the Company
(other than a Guarantor) designated as such pursuant to and in compliance with
Section 1018.
"Unrestricted Subsidiary Indebtedness" of any Unrestricted
Subsidiary means Indebtedness of such Unrestricted Subsidiary (i) as to which
neither the Company nor any Restricted Subsidiary is directly or indirectly
liable (by virtue of the Company or any such Restricted Subsidiary being the
primary obligor on, guarantor of, or otherwise liable in any respect to, such
Indebtedness), except Guaranteed Debt of the Company or any Restricted
Subsidiary to any Affiliate, in which case (unless the incurrence of such
Guaranteed Debt resulted in a Restricted Payment at the time of incurrence) the
Company shall be deemed to have made a Restricted Payment equal to the principal
amount of any such Indebtedness to the extent guaranteed at the time such
Affiliate is designated an Unrestricted Subsidiary and (ii) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Subsidiary to declare, a
default on such Indebtedness of the Company or any Subsidiary or cause the
payment thereof to be accelerated or payable prior to its Stated Maturity;
provided that notwithstanding the foregoing any Unrestricted Subsidiary may
guarantee the Securities.
"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 Capital Stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
21
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all the Capital Stock of which is owned directly or indirectly by the
Company or another Wholly Owned Restricted Subsidiary.
Section 102. Other Definitions.
Term Defined in Section
---- ------------------
"2000 Exchange Notes" Recitals
"2000 Exchange Guarantees" Recitals
"2000 Guarantees" Recitals
"2000 Indenture" Recitals
"2000 Notes" Recitals
"Act" 105
"Additional Securities" Recitals
"Change of Control Offer" 1014
"Change of Control Purchase Date" 1014
"Change of Control Purchase Notice" 1014
"Change of Control Purchase Price" 1014
"covenant defeasance" 403
"Defaulted Interest" 309
"Defeasance Redemption Date" 404
"defeasance" 402
"Defeased Securities" 401
"Designation Amount" 1018
"Designation" 1018
"European Government Obligations" 404
"Excess Proceeds" 1012
"Existing Securities" Recitals
"Xxxxx" Recitals
"herein" 101
"hereof" 101
"hereunder" 101
"incur" 1008
"Initial Blockage Period" 1217
"Intercompany Note" Recitals
22
Term Defined in Section
---- ------------------
"Intercreditor Deed" 1226
"Investment Company Act" 1020
"Non-payment Default" 1217
"Offer Date" 1012
"Offer" 1012
"Offered Price" 1012
"Other Indebtedness Debt Amount" 1012
"Pari Passu Debt Xxxxxx" 0000
"Pari Passu Offer" 1012
"Participants" 306
"Payment Blockage Period" 1217
"Payment Default" 1217
"Payment Default Date" 1227
"Permitted Indebtedness" 1008
"Permitted Payment" 1009
"Private Placement Legend" 202
"Process Agent" 114
"Purchase Money Security Agreement" 101
"refinancing" 1009
"Registration Default" 202
"Required Filing Date" 1023
"Restricted Payments" 1009
"Revocation" 1018
"Securities" (and "Security") Recitals
"Security Amount" 1012
"Security Register" 304
"Security Registrar" 304
"Senior Discharge Date" 1227
"Senior Representative 1217
"Series A Securities" Recitals
"Series B Securities" Recitals
"Special Payment Date" 309
"Special Record Date" 309
23
Term Defined in Section
---- ------------------
"Standstill Period" 1227
"Surviving Entity" 801
"Surviving Guarantor Entity" 801
"Taxes" 1022
"Taxing Authority" 1102
"UK Guarantor" 203
"VAT" Definition of "Specified Affiliate Payments"
Section 103. Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Trustee
to take any action under any provision of this Indenture, the Issuer and any
Guarantor (if applicable) and any other obligor on the Securities (if
applicable) shall furnish to the Trustee an Officers' Certificate in a form and
substance reasonably acceptable to the Trustee stating that all conditions
precedent, if any, provided for in this Indenture (including any covenant
compliance with which constitutes a condition precedent) relating to the
proposed action have been complied with, and an Opinion of Counsel in a form and
substance reasonably acceptable to the Trustee stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of such certificates or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each individual signing such
certificate or individual or firm signing such opinion has read and understands
such covenant or condition and the definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such
individual or such firm, he or it has made such examination or investigation as
is necessary to enable him or it to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual or such firm, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
24
Any certificate of an officer of the Issuer, any Guarantor or
other obligor on the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Issuer, any Guarantor or other obligor on the Securities stating that the
information with respect to such factual matters is in the possession of the
Issuer, any Guarantor or other obligor on the Securities, unless such officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Issuer, the
Guarantors or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
that various financial covenants have been complied with.
Any certificate or opinion of an officer of the Issuer, any
Guarantor or other obligor on the Securities may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of, or representations by,
an accountant or firm of accountants in the employ of the Issuer and the
Guarantors, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the accounting matters upon which his certificate or opinion may be based are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent with respect to the Issuer and the Guarantors.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company and the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee, the
Company and the Issuer, if made in the manner provided in this Section 105.
(b) The ownership of the Definitive Registered Securities
shall be proved by the Security Register and the Holder of a Global Security
shall be treated as the owner of such Global Security.
(c) Any request, demand, authorization, direction,
notice, consent, waiver or other Act by the Holder of any Security shall bind
every future Holder of the same Security or the Holder of every Security issued
upon the transfer thereof or in exchange therefor or in lieu thereof, in respect
of anything done, suffered or omitted to be done by the Trustee, any Paying
25
Agent or the Issuer, any Guarantor or any other obligor of the Securities in
reliance thereon, whether or not notation of such action is made upon such
Security.
(d) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Issuer may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of such Holders of Definitive Registered
Securities entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Issuer shall have no obligation to
do so. Notwithstanding Trust Indenture Act Section 316(c), any such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not more than 30 days prior to the first solicitation of
Holders of Definitive Registered Securities generally in connection therewith
and no later than the date such first solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Definitive Registered
Securities of record at the close of business on such record date shall be
deemed to be of Definitive Registered Securities Holders for purposes of
determining whether Holders of Definitive Registered Securities of the requisite
proportion of Securities then Outstanding have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders of
Definitive Registered Securities on such record date shall be deemed effective
unless it shall become effective pursuant to the provisions of this Indenture
not later than six months after such record date.
(f) In the case of a Global Security, its Holder shall be
entitled to give or take, or vote on any relevant action with respect to all or
only a portion of the principal amount represented by the Global Security as of
the record date fixed for Definitive Registered Securities, as indicated by
Schedule A to the Global Security.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any particular
Security may do so with regard to all or any part of the principal amount of
such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such
principal amount.
(h) For purposes of this Indenture, any action by the Holders
which may be taken in writing may be taken by electronic means or as otherwise
reasonably acceptable to the Trustee.
26
Section 106. Notices, etc., to the Trustee, the Issuer and any
Guarantor.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer or any
Guarantor or any other obligor on the Securities shall be sufficient for every
purpose (except as provided in Section 501(c)) hereunder if in writing (which
may be made via facsimile) and mailed, first-class postage prepaid, or delivered
by recognized overnight courier, to or with the Trustee at its Corporate Trust
Office, 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000, Attention: Corporate
Trust Administration, or at any other address previously furnished in writing to
the Holders or the Issuer, any Guarantor or any other obligor on the Securities
by the Trustee; or
(b) the Issuer or any Guarantor by the Trustee or any
Holder shall be sufficient for every purpose (except as provided in Section
501(c)) hereunder if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to the Issuer or such Guarantor
addressed to it x/x Xxxxxx Xxxx, 00-00 Xxxxxx Xxxxxxx, Xxxxxxxxxxx, Xxxxxx
Xxxxxxx, Attention: Chief Financial Officer or at any other address previously
furnished in writing to the Trustee by the Issuer or such Guarantor.
Section 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
delivered by recognized overnight courier, to each Holder affected by such
event, at its address as it appears in the Security Register, in the case of
Definitive Registered Securities, or, in the case of any Global Security, at the
address provided to the Trustee by the Holder thereof, not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In the case of any Global Security, notices shall
also be published (at the time that notice is provided to the Holder) in a
leading newspaper having a general circulation in New York (which is expected to
be the Wall Street Journal), in London (which is expected to be the Financial
Times) and, for so long as the Securities are listed on the Luxembourg Stock
Exchange and the rules of such stock exchange so require, a newspaper having a
general circulation in Luxembourg (which is expected to be the Luxemburger Wort)
or by such other means as the Luxembourg Stock Exchange may from time to time
require. If and so long as the Securities are listed on any other securities
exchange, notice will also be given in accordance with any applicable
requirements of such securities exchange. All such notices and published notices
to Holders shall be given at the expense of the Issuer. In any case where notice
to Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when mailed
to a Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of
27
this Indenture, then any method of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Any request, demand, authorization, directive, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
Except to the extent provided in Section 802, all covenants
and agreements in this Indenture by the Issuer and the Guarantors shall bind
their respective successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person (other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders) any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
THIS INDENTURE, THE SECURITIES AND ANY GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 114 Submission to Jurisdiction; Appointment of Agent
for Service of Process; Currency Indemnity.
(a) Each of the Issuer and the Guarantors irrevocably
submits to the non-exclusive jurisdiction of any federal or state court in the
City, County and State of New York, United States of America, and any appellate
court from any thereof, in any legal suit, action or proceeding based on or
arising under the Securities or this Indenture and agrees that all claims in
respect of such suit or proceeding may be determined in any such court. Each of
the Issuer and the Guarantors irrevocably waives to the fullest extent permitted
by law, any objection to any such suit, including actions, suits or proceedings
relating to the securities laws of the United States of America or any state
thereof, in such courts whether on the grounds of venue, residence or domicile
or the defense of an inconvenient forum or objections to personal jurisdiction
with respect to the maintenance of such legal suit, action or proceeding. Each
of the Issuer and the
28
Guarantors agrees that the final judgment in any such suit, action or proceeding
brought in such court shall be conclusive and binding upon the Issuer and the
Guarantors and may be enforced in any court to the jurisdiction of which the
Issuer or any such Guarantor is subject by a suit upon such judgment. To the
extent permitted by law, each of the Issuer and the Guarantors hereby waives any
objections to the enforcement by any competent court in the United Kingdom of
any judgment validly obtained in any such court in New York on the basis of any
such legal suit, action or proceeding. Notwithstanding the foregoing, any legal
suit, action or proceeding involving the Issuer or any Guarantor arising under
or based on the Securities or this Indenture may be instituted by any Holder or
the Trustee in any other court of competent jurisdiction.
To the extent that the Issuer or any Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
respective obligations under this Indenture and the Securities to the fullest
extent permitted by law.
(b) Each of the Issuer and the Guarantors hereby
irrevocably designates and appoints CT Corporation System (the "Process Agent")
as its authorized agent upon whom process may be served in any legal suit,
action or proceeding arising out of or relating to the Securities or this
Indenture. Each of the Issuer and the Guarantors hereby acknowledges that the
Process Agent has agreed to act as said agent for service of process, and each
of the Issuer and the Guarantors agrees to take any and all action including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect so long as this Indenture
shall be in full force and effect and so long as any of the Securities shall be
Outstanding. Each of the Issuer and the Guarantors further agrees that service
of process upon the Process Agent and written notice of said service to the
Issuer or any Guarantor shall be deemed in every respect effective service of
process upon the Issuer or such Guarantor in any such legal suit, action or
proceeding. Nothing herein shall affect the right to serve process in any other
manner permitted by law.
(c) The Euro is the sole currency of account and payment
for all sums payable by the Issuer or the Guarantors under the Securities, the
Guarantees and this Indenture. Any amount received or recovered in currency
other than Euro in respect of the Securities (whether as a result of, or of the
enforcement of, a judgment or order of a court of any jurisdiction, in the
winding up or dissolution of the Issuer, the Company, any Subsidiary or
otherwise) by the Holder in respect of any sum expressed to be due to it from
the Issuer or any Guarantor shall constitute a discharge of the Issuer or any
Guarantor only to the extent of the Euro amount which the recipient is able to
purchase with the amount so received or recovered in other currency on the date
of that receipt or recovery (or, if it is not possible to make that purchase on
that date, on the first date on which it is possible to do so). If that Euro
amount is less than the Euro amount expressed to be due to the recipient under
any Security, the Issuer and each Guarantor, jointly and severally, shall
indemnify the recipient against the cost of making any such purchase. For the
purposes of this Section, it will be sufficient for the Holder to certify
(indicating the sources of information used) that it would have suffered a loss
had the actual purchase of Euro been made with the amount so received in that
other currency on the date of receipt or recovery (or, if a purchase of Euro on
such date had not been possible, on the first date on which it would have been
possible). These indemnities, to the extent permitted by law: (i) constitute a
separate and independent obligation from the other obligations of the Issuer and
each Guarantor; (ii) shall give rise to a separate and independent cause of
action; (iii) shall apply irrespective of any waiver granted by any Holder; and
(iv) shall continue in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under any
Security or any
29
other judgment or order. The indemnities described in this subparagraph (c)
shall be subordinated with respect to each Subordinated Guarantor on the same
basis as all other payment obligations of such Subordinated Guarantor hereunder.
Section 115. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest, Additional Amounts, if any, or principal or premium, if
any, need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on such Interest Payment
Date or Redemption Date, or at the Maturity or Stated Maturity and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date, Redemption Date, Maturity or Stated Maturity, as the case
may be, to the next succeeding Business Day.
Section 116. Independence of Covenants.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 117. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 118. Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be deemed an original; but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificate of authentication
thereon shall be in substantially the forms set forth in this Article Two, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted hereby and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may
be required to comply with the rules of any securities exchange, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
30
Series A Securities shall be issued initially in the form of
one or more Series A Global Securities in registered form without coupons,
substantially in the form set forth in Section 202, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided, deposited on behalf of
the purchasers of the Securities represented thereby with the Common Depositary,
and registered in the name of the Common Depositary or its nominee, as the case
may be, for the accounts of Euroclear or Clearstream.
Series B Securities shall be issued initially in the form of
one or more Series B Global Securities in registered form without coupons,
substantially in the form set forth in Section 202, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided, deposited on behalf of
the holders exchanging Existing Securities for such Securities represented
thereby with the Common Depositary, and registered in the name of the Common
Depositary or its nominee, as the case may be, for the accounts of Euroclear or
Clearstream.
Section 202. Form of Face of Security.
(a) The form of the face of any Global Securities
authenticated and delivered hereunder shall be substantially as set out in this
Section.
[FORM OF FACE OF NOTE]
Common Code -/ISIN Number -
No. [-]
[Include if Global Security: UNLESS THIS GLOBAL SECURITY IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF NEW YORK DEPOSITARY
(NOMINEES) LIMITED AS NOMINEE FOR THE BANK OF NEW YORK (THE "COMMON
DEPOSITARY"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR PAYMENT, AND ANY GLOBAL SECURITY ISSUED IS REGISTERED IN THE NAME OF THE BANK
OF NEW YORK, AS COMMON DEPOSITARY OR IN SUCH OTHER NOMINEE AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT IS MADE TO
THE BANK OF NEW YORK OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE COMMON DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, THE BANK OF NEW YORK, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE COMMON DEPOSITARY OR TO
A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS GLOBAL SECURITY AND ANY RELATED DOCUMENTATION MAY BE
AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON AND
PROCEDURES FOR OR RESALES AND OTHER TRANSFERS OF THIS GLOBAL SECURITY TO REFLECT
ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN
PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY.
THE
31
HOLDER OF THIS GLOBAL SECURITY SHALL BE DEEMED, BY THE ACCEPTANCE HEREOF, TO
HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE OFFERED, 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, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
[Include if Series A Security: THE HOLDER OF THIS GLOBAL
SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, THE EXCHANGE OFFER
AGREEMENT, DATED AS OF JUNE 25, 2003 AMONG THE ISSUER, THE GUARANTORS AND THE
OTHER PARTIES REFERRED TO THEREIN.]
Lucite International Finance plc
(company registration number 3830500)
10 1/4% SENIOR NOTE DUE 2010, SERIES [A] [B]
Lucite International Finance plc, a public limited company
incorporated under the laws of England and Wales (herein called the "Issuer,"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay The Bank of New York
Depositary (Nominees) Limited or registered assigns the principal sum indicated
on Schedule A (being at the date hereof Euro ______) in Euro on May 15, 2010, at
the office or agency of the Issuer referred to below, and to pay interest
thereon from May 15, 2003, or from the most recent Interest Payment Date to
which interest has been paid, payable semiannually in arrears on May 15 and
November 15 in each year, commencing November 15, 2003 at the rate of 10 1/4%
per annum, in Euro, subject to adjustments as described below, until the
principal hereof is paid or duly provided for [Include if Series B Security:
;provided that to the extent interest has not been paid or duly provided for
with respect to the Existing Security exchanged for this Series B Security,
interest on this Series B Security shall accrue from the most recent Interest
Payment Date to which interest on the Existing Security which was exchanged for
this Series B Security has been paid or duly provided for]. Interest shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
[Include if Series A Security: The Holder of this Series A
Security is entitled to the benefits of the Exchange Offer Agreement among the
Issuer, the Guarantors and the Initial Purchasers, dated as of June 25, 2003,
pursuant to which, subject to the terms and conditions thereof, the Issuer is
obligated to consummate an Exchange Offer pursuant to which the Holder of any
Existing Securities shall have the right to exchange such Existing Securities
for Series B Securities in like principal amount as provided therein. For all
purposes hereunder, the Series A Securities and the Series B Securities will be
treated as one class and are together referred to as the "Securities." The
Series A Securities rank pari passu in right of payment with the Series B
Securities.]
32
[Include if Series A Security: In the event that an Exchange
Offer pursuant to the Exchange Offer Agreement is not consummated on or prior to
the 120th calendar day following the date of original issue of the Series A
Securities (such event being an "Exchange Default"), then the interest rate
borne by the Series A Securities shall be increased by one half of one percent
(0.5%) per annum. Following the cure of all Exchange Defaults the accrual of
additional interest will cease and the interest rate will revert to the original
rate].
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the Holder of this Security (or any Predecessor Securities) at the close of
business on the Regular Record Date for such interest, which shall be May 1 or
November 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date even if the Securities are cancelled after the
Regular Record Date and on or before the next Interest Payment Date. Any such
interest not so punctually paid, or duly provided for, and interest on such
defaulted interest at the interest rate borne by the Series [A] [B] Securities,
to the extent lawful, shall forthwith cease to be payable to the Holder, and may
either be paid to the Holder of this Security (or any Predecessor Securities) on
the Special Payment Date for the payment of such defaulted interest, notice
whereof in the manner provided in the Indenture shall be given to Holders of
Securities not less than 10 days prior to the Special Record Date (as defined in
the Indenture), or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
Payment of the principal of, premium, if any, and any
Additional Amounts and interest on this Security, and exchange or transfer of
the Security, will be made at the office or agency of the Issuer in The City of
New York maintained for such purposes (which initially will be a corporate trust
office of the Trustee located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX
00000; Attn: Corporate Trust Administration) and during any period when the
Securities are listed on the Luxembourg Stock Exchange, at the office of the
paying agent in Luxembourg or at such other office or agency as may be
maintained for such purpose.
This Security is entitled to the benefits of the Guarantees by
the Guarantors made in favor of the Trustee for the benefit of the Holders.
Reference is hereby made to Article Twelve of the Indenture for a statement of
the respective rights, limitations of rights, duties and obligations under the
Guarantees of the Guarantors.
Each Holder, by accepting this Security, agrees that this
Security is subject to all of the terms and provisions of the Intercreditor Deed
(as defined in and attached to the Indenture), as the same may be amended from
time to time.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature
of an authorized signer, this Security shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
33
IN WITNESS WHEREOF, the Issuer has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized
officers.
Lucite International Finance plc
By: ____________________________
Name:
Title:
Date:
Attest:
____________________________
Authorized Officer
Date:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 10 1/4% Senior Notes due 2010, Series [A]
[B] referred to in the within-mentioned Indenture.
The Bank of New York,
as Trustee
By: __________________________
Authorized Signatory
Date:
34
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount of this Security shall be
E_________. The following decreases/increases in the principal amount of
this Security have been made:
Total Principal Notation Made by
Date of Decrease in Increase in Amount Following or on behalf of
Decrease/Increas Principal Amount Principal Amount such Decrease/Increase Trustee
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
----------- ----------- ----------- --------------- -----------
Section 203. Form of Reverse of Securities.
(a) The form of the reverse of the Securities shall be
substantially as follows:
Lucite International Finance plc
10 1/4% SENIOR NOTE DUE 2010
This Security is one of a duly authorized issue of Securities
of the Issuer designated as its 10 1/4% Senior Notes due 2010 Series [A] [B]
(herein called the "Securities"), issued under and subject to the terms of an
indenture (herein called the "Indenture") dated as of June 25, 2003, between the
Issuer, certain Guarantors named therein, and The Bank of New York, as trustee
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, obligations and immunities thereunder of the Issuer, the
Guarantors, the Trustee and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. All
capitalized terms used herein but not defined herein shall have the meanings
given to such terms by the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related Defaults and Events of Default, in each case upon
compliance with certain conditions set forth therein.
35
All payments made by the Issuer and the Guarantors, if any,
under or with respect to this Security and any Guarantees shall be made free and
clear of and without withholding or deduction for or on account of any present
or future taxes, duties, levies, imposts, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of any Taxing Authority (as
defined in Section 1022 of the Indenture) and any interest, penalties and other
liabilities with respect thereto (collectively "Taxes"), unless the Issuer or
any Guarantor, as the case may be, is required to withhold or deduct such Taxes
by law or by the relevant Taxing Authority's interpretation or administration
thereof. In the event that the Issuer or any Guarantor is required to so
withhold or deduct any amount for or on account of any such Taxes from any
payment made under or with respect to this Security or the Guarantee, as the
case may be, the Issuer or such Guarantor, as the case may be, will pay such
additional amounts ("Additional Amounts") as may be necessary so that the net
amount (including Additional Amounts) received by the Holder of this Security
after such withholding or deduction will equal the amount that such Holder would
have received if such Taxes had not been required to be withheld or deducted;
provided that upon the implementation of the Directive, the Issuer and the
Guarantor shall ensure that a Paying Agent is maintained in a member state of
the European Union that is not obliged to withhold or deduct Taxes pursuant to
such Directive; provided further that no Additional Amounts will be payable with
respect to a payment made to the Holder or beneficial owner of this Security to
the extent:
(a) that any such Taxes would not have been so imposed
but for the existence of any present or former connection between such Holder or
beneficial owners and the Taxing Authority imposing such Taxes (other than the
mere receipt of such payment, acquisition, ownership or disposition of this
Security or the exercise or enforcement of rights under this Security, the
Guarantees or the Indenture), unless such Taxes were so imposed because the
Securities were not listed on a Recognized Stock Exchange;
(b) of any estate, inheritance, gift, sales, transfer,
personal property or similar Tax imposed with respect to this Security, except
as otherwise provided herein;
(c) that any such Taxes would not have been so imposed
but for the presentation of this Security (where presentation is required) for
payment on a date more than 30 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever is later, except to the extent that the beneficiary or Holder thereof
would have been entitled to Additional Amounts had this Security been presented
for payment on any date during such 30 day period;
(d) that such Holder or beneficial owner would not be
liable for or subject to such withholding or deduction of such Taxes but for the
failure to make a valid declaration of non-residence or other similar claim for
exemption or to provide information concerning nationality, residence or
connection with the relevant Taxing Authority if (x) the making of such
declaration or claim or the provision of such information is required or imposed
by statute, treaty, regulation, ruling or administrative practice of the
relevant Taxing Authority as a precondition to an exemption from, or reduction
in, such Taxes, and (y) at least 60 days prior to the first payment date with
respect to which the Issuer or any Guarantor shall apply this clause (d), the
Issuer or such Guarantor shall have notified the Holder of this Security in
writing that it shall be required to provide such declaration, claim or
information, unless such Holder or beneficial owner would be liable or subject
to such withholding or deduction of such Taxes because the Securities were not
listed on a Recognized Stock Exchange; or
36
(e) that any such Taxes imposed on a payment to an
individual are required to be made pursuant to the Directive or any law
implementing or complying with, or introduced in order to conform to the
Directive; or
(f) that any such Taxes are imposed in connection with
Securities presented for payment by or on behalf of a Holder or beneficial owner
who would have been able to avoid such Tax by presenting the relevant Security
to another paying agent in a member state of the European Union.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security been the Holder of the Security, it would
not have been entitled to payment of Additional Amounts by reason of clauses (a)
to (f) inclusive above. In addition, Additional Amounts will not be payable with
respect to any Taxes that are payable otherwise than by deduction or withholding
from payments of, or in respect of, principal of, or any interest on, the
Securities.
The Issuer and each Guarantor, as applicable, will also (i)
make such withholding or deduction of Taxes and (ii) remit the full amount of
Taxes so deducted or withheld to the relevant Taxing Authority in accordance
with all applicable laws. The Issuer and each Guarantor, as applicable, will use
their reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Issuer or such Guarantor, as the case may be,
will, upon request, make available to the Holder of this Security, within 60
days after the date the payment of any Taxes so deducted or withheld is due
pursuant to applicable law, certified copies of tax receipts evidencing such
payment by the Issuer or such Guarantor or if, notwithstanding the Issuer's or
such Guarantor's efforts to obtain such receipts, the same are not obtainable,
other evidence of such payment by the Issuer or such Guarantor.
At least 30 days prior to each date on which any payment under
or with respect to this Security is due and payable, if the Issuer or any
Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Issuer or such Guarantor will deliver to the Trustee an Officers'
Certificate stating the fact that such Additional Amounts will be payable and
the amounts so payable and setting forth such other information as is necessary
to enable such Trustee to pay such Additional Amounts to the Holder of this
Security on the payment date.
The foregoing provisions shall survive any termination,
defeasance or discharge of the Indenture and shall apply mutatis mutandis to any
jurisdiction in which any successor Person to the Issuer or any Guarantor, as
the case may be, is organized, engaged in business, resident for tax purposes,
or otherwise subject to taxation on a net income basis or any political
subdivisions or taxing authority or agency thereof or therein.
In addition, the Issuer or any Guarantor, as the case may be,
will pay any present or future stamp, issue, registration, documentation, court
excise or property taxes or other similar taxes, charges and duties, including
interest, penalties and Additional Amounts with respect thereto, imposed by any
Taxing Authority, the United States or any jurisdiction in which a paying agent
is located or any political subdivision or taxing authority of or in the
foregoing in respect of the execution, issue, delivery, registration, redemption
or retirement of, or receipt of payments with respect to, this Security or any
other document or instrument referred to thereunder and any such taxes, charges
or duties imposed by any jurisdiction as a result of, or in connection with, the
enforcement of this Security or any other such document or instrument following
the occurrence of any Event of Default with respect to this Security.
37
Whenever in the Indenture or in this Security there is
mentioned, in any context, the payment of principal (and premiums, if any),
redemption price, interest or any other amount payable under or with respect to
this Security, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to Section 1022 of the
Indenture.
The Securities may also be redeemed, as a whole but not in
part, at the election of the Issuer, upon not less than 30 nor more than 60 days
notice given in the manner provided in the Indenture (which notice shall be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest thereon to the redemption
date and Additional Amounts, if any, if as a result of (i) any amendment to, or
change in, the laws, treaties, rulings or regulations of any jurisdiction in
which the Issuer is organized, engaged in business, resident for tax purposes or
generally subject to tax on a net income basis or any political subdivision or
authority thereof or therein having power to tax or any change in the official
application or official interpretation of such laws, treaties, rulings or
regulations which amendment or change becomes effective after the Issue Date or
(ii) with respect to a Guarantor that is organized under the laws of the United
Kingdom (a "UK Guarantor"), any amendment to, or change in, the laws, treaties,
rulings or regulations of the United Kingdom or any political subdivision or
authority thereof or therein having power to tax or any change in the official
application or official interpretation of such laws, treaties, rulings or
regulations which amendment or change becomes effective after the Issue Date,
the Issuer or, only as a result of the occurrence of any event described in
clause (ii), a UK Guarantor, has become or will become obligated to pay
Additional Amounts (as described in Section 1022 of the Indenture) which are
more than a de minimis amount, on the next date on which any amount would be
payable with respect to the Securities, and such obligation cannot be avoided by
the use of reasonable measures available to the Issuer or such UK Guarantor, as
the case may be; provided, however, that (1) no such notice of redemption may be
given earlier than 60 days prior to the earliest date on which the Issuer or
such UK Guarantor, as the case may be, would be obligated to pay such Additional
Amounts, and (2) at the time such notice of redemption is given, such obligation
to pay such Additional Amounts remains in effect. Prior to the giving of any
notice of redemption described in this paragraph, the Issuer shall deliver to
the Trustee (a) a certificate signed by two directors of the Issuer stating that
the obligation to pay such Additional Amounts cannot be avoided by the Issuer or
such UK Guarantor, as the case may be, taking reasonable measures available to
it and (b) a written Opinion of Independent Counsel to the Issuer of recognized
standing to the effect that the Issuer or such UK Guarantor, as the case may be,
has or will become obligated to pay such Additional Amounts as a result of a
change, amendment, official interpretation or application described above that
the Issuer or such UK Guarantor, as the case may be, cannot avoid the payment of
such Additional Amounts by taking reasonable measures available to it.
In the event the obligations of the Issuer under the
Securities are assumed pursuant to the terms and conditions of the Indenture by
a Surviving Entity (as defined in Article Eight of the Indenture), such
Surviving Entity shall be entitled to redeem the Securities subject to the terms
of the preceding paragraph, substituting the date of such assumption for the
Issue Date.
The Securities are subject to redemption at any time on or
after May 15, 2005, at the option of the Issuer, in whole or in part, on not
less than 30 nor more than 60 days' prior notice given in the manner provided in
the Indenture in amounts of (euro)1,000 or an integral multiple thereof at the
following redemption prices (expressed as percentages of the principal amount),
if redeemed during the 12-month period beginning May 15 of the years indicated
below:
38
Year Redemption Price
---- ----------------
2005 105.125%
2006 103.417%
2007 101.708%
and thereafter at 100% of the principal amount thereof, in each case, together
with any Additional Amounts and accrued and unpaid interest, if any, to the
Redemption Date (subject to the rights of Holders of Definitive Registered
Securities of record on Regular Record Dates and Special Record Dates to receive
interest due on an Interest Payment Date).
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities or portions thereof to be redeemed in
compliance with the requirements of the principal national security exchange
(currently expected to be the Luxembourg Stock Exchange), if any, on which the
Securities are listed, or if the Securities are not so listed, on a pro rata
basis, by lot or by any other method the Trustee shall deem fair and reasonable;
provided that Securities redeemed in part shall be redeemed only in integral
multiples of (euro)1,000; provided, further, that any such redemption pursuant
to the provisions relating to an equity sale shall be made on a pro rata basis
or on as nearly a pro rata basis as practicable (subject to the procedures of
Euroclear and Clearstream or any other depositary).
Upon the occurrence of a Change of Control or at the option of
the Issuer or the Company, prior to such Change of Control but after the public
announcement thereof, each Holder may require the Issuer to purchase such
Holder's Securities in whole or in part in integral multiples of (euro)1,000, at
a purchase price in cash in an amount equal to 101% of the principal amount
thereof, plus any Additional Amounts and accrued and unpaid interest, if any, to
the date of purchase, pursuant to a Change of Control Offer in accordance with
the procedures set forth in the Indenture.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Issuer from any Asset Sale, which proceeds are not used
to repay any Pari Passu Indebtedness of the Issuer or Indebtedness of any
Restricted Subsidiary then outstanding as required by the terms thereof or
invested in properties or other assets that replace the properties and assets
that were the subject of the Asset Sale or which will be used in the businesses
of the Company or its Subsidiaries existing on the Issue Date or in businesses
reasonably related thereto, exceed a specified amount, the Issuer will be
required to apply such Net Cash Proceeds to the repayment of the Securities and
certain Indebtedness ranking pari passu in right of payment to the Securities.
In the case of any redemption or repurchase of Securities in
accordance with the Indenture, interest installments whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities. [Insert in the case of Definitive Registered Security: provided that
interest installments whose Stated Maturity is on or prior to such redemption
date will be payable to the Holders of such Securities or one or more
Predecessor Securities of record as of the close of business on the relevant
Regular Record Date or Special Record Date referred to on the face hereof as
provided in the Indenture.] Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date.
39
In the event of redemption or repurchase of this Security in
accordance with the Indenture in part only, a new Security or Securities for the
unredeemed portion hereof shall be issued to the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the
principal amount of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Securities do not have the benefit of any sinking fund
obligations.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders and certain
amendments which require the consent of all the Holders) as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the Guarantors and the rights of the Holders under the Indenture and
the Securities and the Guarantees at any time by the Issuer and the Trustee with
the consent of the Holders of at least a majority in aggregate principal amount
of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of at least a majority in aggregate principal
amount of the Securities (100% of the Holders in certain circumstances) at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Issuer and the Guarantors with certain provisions of the
Indenture and the Securities and the Guarantees and certain past Defaults under
the Indenture and the Securities and the Guarantees and their consequences. Any
such consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
each Guarantor or any other obligor on the Securities (in the event such
Guarantor or such other obligor is obligated to make payments in respect of the
Securities), which is absolute and unconditional, to pay the principal of,
premium, if any, any Additional Amounts and interest on, this Security at the
times, place, and rate, and in the coin or currency, herein prescribed.
[Insert in the case of a Definitive Registered Security: As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Issuer in the Borough of Manhattan, The City of New York, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Issuer and the Security Registrar duly executed by, the Holder hereof or its
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.]
[Insert in the case of a Global Security: Global Securities
shall be exchanged by the Issuer (with authentication by the Trustee) for one or
more Definitive Registered Securities if:
(i) Euroclear and Clearstream notify the Issuer that they
are at any time unwilling or unable to continue as, or cease to be, a clearing
system and a successor to Euroclear and Clearstream registered as a clearing
system is not able to be appointed by the Issuer within 150 days after such
notification, (ii) there shall have occurred and be continuing an Event of
Default or any event which after notice or lapse of time or both would be an
Event of Default with respect to such Global Security, and the Issuer has
received a request for Definitive Registered Securities from a Holder, or (iii)
the Issuer exercises its option to issue Definitive Registered Securities. Upon
any such issuance, the Trustee is required to register such Securities
40
which are Definitive Registered Securities in the name of, and cause the same to
be delivered to, such Person or Persons (or the nominee of any thereof).]
Securities are issuable only without coupons in denominations
of (euro)1,000 and any integral multiple thereof. As provided in the Indenture
and subject to certain limitations therein set forth, the Securities are
exchangeable for a like aggregate principal amount of Securities of a differing
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
[Insert in the case of a Definitive Registered Security: Prior
to due presentment of this Security for registration of transfer, the Issuer,
each Guarantor, the Trustee and any agent of the Issuer, such Guarantor or the
Trustee may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security is overdue, and
neither the Issuer, such Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.]
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
Section 204. Form of Guarantee of Guarantors.
The form of Guarantee shall be set forth on the Securities
substantially as follows:
GUARANTEE
For value received, each of the undersigned hereby absolutely,
fully and unconditionally and irrevocably guarantees, jointly and severally with
each other Guarantor, to the holder of this Security the payment of principal
of, premium, if any, and interest on this Security upon which this Guarantee is
endorsed in the amounts payable whether by declaration thereof, or otherwise,
and interest on the overdue principal and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Issuer
under the Indenture or the Securities, to the holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security and, with respect to Subordinated Guarantors (as defined in the
Indenture), Article Twelve of the Indenture. This Guarantee will not become
effective until the Trustee duly executes the certificate of authentication on
this Security. This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
The obligations represented by any Subordinated Guarantee are,
to the extent and in the manner provided in the Indenture, subordinate and
subject in right of payment to the prior payment in full of all Guarantor Senior
Indebtedness (as defined in the Indenture), whether outstanding on the date of
the Indenture or thereafter, and the Subordinated Guarantees are issued subject
to such provisions.
41
Date:
SIGNED for and on behalf of SIGNED for and on behalf of
LUCITE INTERNATIONAL GROUP LUCITE INTERNATIONAL HOLDCO
HOLDINGS LIMITED LIMITED
By: By:
Name: Name:
Title: Title:
SIGNED for and on behalf of SIGNED for and on behalf of
LUCITE INTERNATIONAL LUCITE INTERNATIONAL HOLDINGS
INVESTMENT LIMITED LIMITED
By: By:
Name: Name:
Title: Title:
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The aggregate
principal amount of Series A Global Securities shall initially be
E50,000,000 and may from time to time be decreased by adjustments made on
the records of the Trustee. The Securities shall be known and designated as the
"10 1/4% Senior Notes due 2010" of the Issuer. The Stated Maturity of the
Securities shall be May 15, 2010, and the Securities shall each bear interest at
the rate of 10 1/4% per annum, as such interest rate may be adjusted as set
forth in the Securities and pursuant to the Exchange Offer Agreement, from May
15, 2003, or from the most recent Interest Payment Date to which interest has
been paid, payable semiannually on May 15 and November 15 in each year,
commencing November 15, 2003, until the principal thereof is paid or duly
provided for. Interest on any overdue principal, any Additional Amounts and
interest (to the extent lawful) or premium, if any, shall be payable on demand.
The principal of, premium, if any, any Additional Amounts and
interest on Securities shall be payable and Securities shall be exchangeable and
transferable at an office or agency of the Issuer in The City of New York
maintained for such purposes (which initially will be a corporate trust office
of the Trustee located at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000;
Attn: Corporate Trust Administration); provided, however, in the case of
Definitive Registered Securities that at the option of the Issuer payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register (against surrender
of such Definitive Registered Security, in the case of a payment of principal).
42
For all purposes hereunder, the Series A Securities and the
Series B Securities will be treated as one class and are together referred to as
the "Securities." The Series A Securities rank pari passu in right of payment
with the Series B Securities.
The Securities shall be subject to repurchase by the Issuer
pursuant to an Offer as provided in Section 1012.
Holders shall have the right to require the Issuer to purchase
their Securities, in whole or in part, in the event of a Change of Control
pursuant to Section 1014.
The Securities shall be redeemable as provided in Article
Eleven and in the Securities.
At the election of the Issuer, the entire Indebtedness on the
Securities or certain of the Issuer's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
Section 302. Denominations.
The Securities shall be issuable only in denominations of
(euro)1,000 and any integral multiple thereof. The Global Securities shall be in
registered form without interest coupons and the Definitive Registered
Securities shall be in registered form without interest coupons.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be signed on behalf of the Issuer by any
two officers of the Issuer. The signatures of any of these officers on the
Securities may be manual or facsimile and may be imprinted or otherwise
reproduced on the Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities executed by the
Issuer to the Trustee (with or without Guarantees endorsed thereon) for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities; and the Trustee in accordance with such Issuer
Order shall authenticate and make available for delivery such Securities as
provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
In case the Issuer or any Guarantor, pursuant to Article
Eight, shall, in a single transaction or through a series of related
transactions, be consolidated or merged with or into any other Person or shall
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person, and the successor
Person resulting from such consolidation or surviving such merger, or into which
the Issuer or such Guarantor shall have been merged, or the successor Person
which shall have participated in the sale,
43
assignment, conveyance, transfer, lease or other disposition as aforesaid, shall
have executed an indenture supplemental hereto with the Trustee pursuant to
Article Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other Securities executed in the name of the successor Person with
such changes in phraseology and form as may be appropriate, but otherwise in
substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon Issuer Request of the successor
Person, shall authenticate and deliver Securities as specified in such request
for the purpose of such exchange. If Securities shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section 303 in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time Outstanding for Securities authenticated and delivered in such new
name.
The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Issuer and its Affiliates.
If an officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates such Security such Security
shall be valid nevertheless.
Section 304. Registrar, Transfer Agent and Paying Agent.
The Issuer shall maintain an office or agency for the
registration of the Securities and of their transfer or exchange (the "Security
Registrar"), an office or agency where Securities may transferred or exchanged
(the "Transfer Agent"), an office or agency where the Securities may be
presented for payment (the "Paying Agent") and an office or agency where notices
or demands to or upon the Issuer in respect of the Securities may be served. The
Issuer may appoint one or more Transfer Agents, one or more co-Security
Registrars and one or more additional Paying Agents.
The Issuer shall maintain a Transfer Agent and Paying Agent in
New York, New York. The Issuer shall also maintain a Transfer Agent and Paying
Agent in Luxembourg so long as the Securities are listed on the Luxembourg Stock
Exchange and the rules of such exchange so require.
The Issuer hereby appoints (i) the office of The Bank of New
York in the Borough of Manhattan located at Corporate Trust Office, 000 Xxxxxxx
Xxxxxx, Xxxxx 00X, Xxx Xxxx, XX 00000, as Security Registrar and as Transfer
Agent and Paying Agent in New York, New York and (ii) the office of Dexia Banque
International, a Luxembourg societe anonyme in Luxembourg located at 00 xxxxx
x'Xxxx, X-0000 Xxxxxxxxxx, as Transfer Agent and Paying Agent in Luxembourg.
Subject to any applicable laws and regulations, the Issuer
shall cause the Security Registrar to keep a register (the "Security Register")
at its corporate trust office in which, subject to such reasonable regulations
it may prescribe, the Issuer shall provide for the registration of ownership,
exchange, and transfer of the Securities. Such registration in the Security
Register shall be conclusive evidence of the ownership of Securities. Included
in the books and records for the Securities shall be notations as to whether
such Securities have been paid, exchanged or transferred, canceled, lost,
stolen, mutilated or destroyed and whether such Securities have been
44
replaced. In the case of the replacement of any of the Securities, the Security
Registrar shall keep a record of the Security so replaced and the Security
issued in replacement thereof. In the case of the cancellation of any of the
Securities, the Security Registrar shall keep a record of the Security so
canceled and the date on which such Security was canceled.
The Issuer shall enter into an appropriate agency agreement
with any Paying Agent or co-Security Registrar not a party to this Indenture,
which shall incorporate the terms of the Trust Indenture Act. The agreement
shall implement the provisions of this Indenture that relate to such agent. The
Issuer shall notify the Trustee of the name and address of any such agent. If
the Issuer fails to maintain a Security Registrar or Paying Agent, the Trustee
shall act as such and shall be entitled to appropriate compensation therefor
pursuant to Section 607.
Section 305. Transfer and Exchange.
Where Securities are presented to the Security Registrar or a
co-Security Registrar with a request to register a transfer or to exchange them
for an equal principal amount of Securities of other denominations, the Security
Registrar shall register the transfer or make the exchange in accordance with
the requirements of this Section 305. To permit registrations of transfers and
exchanges, the Issuer shall execute and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities, of any authorized denominations and of a like aggregate
principal amount, at the Security Registrar's request. No service charge shall
be made for any registration of transfer or exchange of Securities (except for
any tax or other governmental charge that may be imposed in connection
therewith), but the Issuer may require payment of a sum sufficient to cover any
agency fee or similar charge payable in connection with any such registration of
transfer or exchange of Securities pursuant to Sections 303, 305, 906, 1012,
1014 or 1108 not involving a transfer.
Upon presentation for exchange or transfer of any Security as
permitted by the terms of this Indenture and by any legend appearing on such
Security, such Security shall be exchanged or transferred upon the Security
Register and one or more new Securities shall be authenticated and issued in the
name of the Holder (in the case of exchanges only) or the transferee, as the
case may be. No exchange or transfer of a Security shall be effective under this
Indenture unless and until such Security has been registered in the name of such
Person in the Security Register. Furthermore, the exchange or transfer of any
Security shall not be effective under this Indenture unless the request for such
exchange or transfer is made by the Holder or by a duly authorized
attorney-in-fact at the office of the Security Registrar.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Issuer or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument or
transfer, in form satisfactory to the Issuer and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer evidencing
the same indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
The Issuer shall not be required (i) to issue, register the
transfer of, or exchange any Security during a period beginning at the opening
of 15 Business Days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1105 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
45
Section 306. Book-Entry Provisions for Global Securities.
(a) Each Global Security shall be duly executed by the
Issuer and authenticated by the Trustee as provided in this Indenture and be
substantially in the form set forth herein and shall be deposited with or on
behalf of the Common Depositary.
Members of, or participants in, Euroclear and Clearstream
("Participants") shall have no rights under this Indenture with respect to any
Global Security or under such Global Security, and the Holder of such Global
Security may be treated by the Issuer, each Guarantor, the Trustee and any agent
of the Issuer, each Guarantor, or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer
or the Trustee from giving effect to any written certification, proxy or other
authorization furnished by Euroclear and Clearstream or shall impair, as between
Euroclear and Clearstream and its Participants, the operation of customary
practices governing the exercise of the rights of a holder of a beneficial
interest in any Global Security.
(b) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in whole or in part for
Definitive Registered Securities unless (i) Euroclear and Clearstream notify the
Issuer that they are at any time unwilling or unable to continue as, or cease to
be, a clearing system and a successor clearing system is not able to be
appointed by the Issuer within 150 days after such notification, (ii) there
shall have occurred and be continuing an Event of Default or any event which
after notice or lapse of time or both would be an Event of Default with respect
to such Global Security, and the Issuer has received a request for Definitive
Registered Securities from a Holder, or (iii) the Issuer exercises its option to
issue Definitive Registered Securities.
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Common Depositary to the Trustee for exchange or cancellation as provided in
this Article Three. If any Global Security is to be exchanged for other
Securities or canceled in part, or if another Security is to be exchanged in
whole or in part for a beneficial interest in any Global Security then either
(i) such Global Security shall be so surrendered for exchange or cancellation as
provided in this Article Three or (ii) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other Security
to be so exchanged for a beneficial interest therein, as the case may be, by
means of an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment of a Global Security,
the Trustee shall, subject to this Section 306(c) and as otherwise provided in
this Article Three, authenticate and deliver any Securities issuable in exchange
for such Global Security (or any portion thereof). Upon the request of the
Trustee and in connection with the occurrence of any of the events specified in
the preceding paragraph, the Issuer shall promptly make available to the Trustee
a reasonable supply of Definitive Registered Securities in definitive, fully
registered form without interest coupons. The Trustee shall be entitled to rely
upon any order, direction or request of the Common Depositary or its authorized
representative which is given or made pursuant to this Article Three if such
order, direction or request is given or made in accordance with the Applicable
Procedures.
(d) Every Definitive Registered Security authenticated
and delivered upon registration of transfer of, or in exchange for or in lieu
of, a Global Security or any portion thereof, whether pursuant to this Article
Three or otherwise, shall be authenticated and delivered
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in the form of, and shall be, a Definitive Registered Security registered in the
name of a Person other than the Common Depositary.
Section 307. Special Transfer and Exchange Provisions.
(a) Notwithstanding any provision to the contrary herein,
so long as a Global Security remains outstanding and is held by or on behalf of
the Common Depositary, transfers of a Global Security, in whole or in part, or
of any beneficial interest therein, shall only be made in accordance with
Section 305 and Section 306(a).
(b) The Trustee shall have no responsibility for any
actions taken or not taken by Euroclear or Clearstream, as the case may be.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 306. The
Issuer shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Security Registrar.
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Issuer, the Guarantors and the Trustee, such security or indemnity, in each
case, as may be required by them to save each of them and any agent of either of
them harmless, then, in the absence of notice to the Issuer, the Guarantors or
the Trustee that such Security has been acquired by a bona fide purchaser, the
Issuer shall execute and upon an Issuer Request the Trustee shall authenticate
and make available for delivery, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Issuer in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Issuer may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charges that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer and each Guarantor, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder. Any
Security which is replaced due to destruction, loss or theft shall cease to
constitute a binding obligation of the Issuer and shall not be entitled to the
benefits of this Indenture.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid (a) in the
case of a Global Security to its Holder and (b) in the case of a Definitive
Registered Security to the Person in whose name that Security
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(or any Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest payment.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date and interest
on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder, as set forth above; and such Defaulted Interest may be
paid by the Issuer, at its election in each case, as provided in Subsection (a)
or (b) below:
(a) The Issuer may elect to make payment of any Defaulted
Interest to the Holders of the Securities (or any relevant Predecessor
Securities) (i) in the case of a Global Security to the Holder of such Global
Security on the Special Payment Date (as defined below) and (ii) in the case of
a Definitive Registered Security to the Person in whose name that Security (or
any Predecessor Securities) is registered, at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuer shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date (not less than 30 days after such notice) of the
proposed payment (the "Special Payment Date"), and at the same time the Issuer
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 prior to the Special
Payment Date, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this Subsection provided.
Thereupon the Trustee shall fix a Special Record Date for the Definitive
Registered Securities if there are any such Definitive Registered Securities
then outstanding for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the Special
Payment Date and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Issuer in
writing of such Special Record Date. In the name and at the expense of the
Issuer, the Trustee shall cause notice of the proposed payment of such Defaulted
Interest, the Special Payment Date and the Special Record Date therefor be given
in the manner provided in this Indenture not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest,
and the Special Record Date and Special Payment Date therefor having been so
given, such Defaulted Interest shall be paid (x) to a Holder of a Global
Security on the Special Payment Date or (y) in the case of Definitive Registered
Securities to the Persons in whose names the Securities are registered at the
close of business on such Special Record Date and in each case shall no longer
be payable pursuant to the following Subsection (b).
(b) The Issuer may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by this Indenture not inconsistent with the requirements of
such exchange, if, after written notice given by the Issuer to the Trustee of
the proposed payment pursuant to this Subsection, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section 309, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to any
Additional Amounts and interest accrued and unpaid, and to accrue, which were
carried by such other Security.
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Section 310. CUSIP, CINS and ISIN Numbers.
The Issuer in issuing the Securities may use "CUSIP" numbers,
"CINS" numbers or "ISIN" numbers (in each case if then generally in use), and,
if so, the Issuer, or the Trustee on behalf of the Issuer, shall use CUSIP
numbers, CINS numbers or ISIN numbers in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice shall state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange and that reliance may be placed only on the other identification
numbers printed on the Securities; and provided further, however, that failure
to use CUSIP numbers, CINS numbers or ISIN numbers in any notice of redemption
or exchange shall not affect the validity or sufficiency of such notice. The
Issuer shall promptly notify the Trustee of any change in the CUSIP, CINS or
ISIN numbers.
Section 311. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Issuer, the Guarantors, the Trustee and any agent of the Issuer,
the Guarantors or the Trustee may treat, to the extent permitted by applicable
law, the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 309) any Additional Amounts and interest on, such
Security and for all other purposes whatsoever, whether or not such Security is
overdue, and neither the Issuer, any Guarantor, the Trustee nor any agent of the
Issuer, any Guarantor or the Trustee shall be affected by notice to the
contrary.
Section 312. Cancellation.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already canceled, shall be promptly canceled by it. The Issuer and any
Guarantor may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Issuer or such
Guarantor may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section 312, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of by the Trustee in
its customary manner. The Trustee shall provide the Issuer a list of all
Securities that have been canceled from time to time as requested by the Issuer.
Section 313. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Issuer's Option to Effect Defeasance or Covenant
Defeasance.
The Issuer or the Company may, at its option by Board
Resolution, at any time, with respect to the Securities, elect to have either
Section 402 or Section 403 be applied to all of the Outstanding Securities (the
"Defeased Securities"), upon compliance with the conditions set forth below in
this Article Four.
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Section 402. Defeasance and Discharge.
Upon the Issuer's or the Company's exercise under Section 401
of the option applicable to this Section 402, the Issuer, each Guarantor and any
other obligor upon the Securities, if any, shall be deemed to have been
discharged from its obligations with respect to the Defeased Securities on the
date the conditions set forth in Section 404 below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Issuer, each
Guarantor and any other obligor upon the Securities shall be deemed to have paid
and discharged the entire Indebtedness represented by the Defeased Securities,
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 406 and the other Sections of this Indenture referred to in (a) and (b)
below, and to have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Issuer and upon Issuer Request, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
Defeased Securities to receive, solely from the trust fund described in Section
404 and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, any Additional Amounts and interest on, such
Securities, when such payments are due, (b) the Issuer's obligations with
respect to such Defeased Securities under Sections 304, 305, 308, 1002 and 1003,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder,
including, without limitation, the Trustee's rights under Section 607, and (d)
this Article Four. Subject to compliance with this Article Four, the Issuer may
exercise its option under this Section 402 notwithstanding the prior exercise of
its option under Section 403 with respect to the Securities.
Section 403. Covenant Defeasance.
Upon the Issuer's or the Company's exercise under Section 401
of the option applicable to this Section 403, the Issuer and each Guarantor
shall be released from its obligations under any covenant or provision contained
or referred to in Sections 1005 through 1019, Section 1021 and Sections 1023 and
1024 inclusive, and the provisions of clause (iii) of Section 801(a) with
respect to the Defeased Securities on and after the date the conditions set
forth in Section 404 below are satisfied (hereinafter, "covenant defeasance"),
and the Defeased Securities 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,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Issuer and each Guarantor may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason of any reference in
any such Section 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
Section 501(c) but, except as specified above, the remainder of this Indenture
and such Defeased Securities shall be unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either
Section 402 or Section 403 to the Defeased Securities:
(1) The Issuer or the Company shall irrevocably have
deposited or caused to be deposited with the Trustee as trust funds in trust,
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders
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of such Securities, (a) cash in Euro, (b) European Government Obligations, or
(c) a combination thereof, in such amounts as will be sufficient, in the opinion
of an internationally recognized firm of independent public accountants or an
internationally recognized investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee to pay and discharge, the principal of, premium,
if any, any Additional Amounts and interest on the Defeased Securities on the
Stated Maturity of such amounts (or on any date after May 15, 2005 (such date
being referred to as the "Defeasance Redemption Date"), if at or prior to
electing to exercise either its option applicable to Section 402 or its option
applicable to Section 403, the Issuer or the Company has delivered to the
Trustee an irrevocable notice to redeem the Defeased Securities on the
Defeasance Redemption Date). For this purpose, "European Government Obligations"
means securities that are (i) direct obligations denominated in Euro of Germany
for the timely payment of which its full faith and credit is pledged or (ii)
obligations denominated in Euro of a Person controlled or supervised by and
acting as an agency or instrumentality of Germany rated at least "A" by S&P or
"A" by Moody's, the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by Germany and which are not callable or
redeemable at the option of the issuer thereof;
(2) In the case of an election under Section 402, the
Issuer or the Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States stating that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date hereof, there has been a change in the applicable
U.S. federal income tax law, in either case to the effect that, and based
thereon such Opinion of Independent Counsel in the United States shall confirm
that, the Holders of the Outstanding Securities will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such deposit and
defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred;
(3) In the case of an election under Section 403, the
Issuer or the Company shall have delivered to the Trustee an Opinion of
Independent Counsel in the United States to the effect that the Holders of the
Outstanding Securities will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such deposit and covenant defeasance and will
be subject to U.S. federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such deposit and covenant
defeasance had not occurred;
(4) The Issuer and the Company shall have delivered to
the Trustee Opinions of Independent Counsel in the U.K. and the jurisdiction of
any Taxing Authority (as defined in Section 1022) to the effect that the Holders
of the Outstanding Securities will not recognize income, gain or loss for income
tax purposes as a result of such deposit and defeasance or covenant defeasance
and will be subject to income taxes on the same amount and in the same manner at
the same times as would have been the case if such deposit and defeasance or
covenant defeasance had not occurred and payments will be free and exempt from
any and all withholding and other income taxes of whatever nature imposed or
levied by or on behalf of the U.K. and such jurisdiction or any political
subdivision thereof having the power to tax;
(5) No Default or Event of Default (other than a Default
or Event of Default resulting from the borrowing of funds to be applied to such
deposit) shall have occurred and be continuing on the date of such deposit or
insofar as Section 501(h) or (i) is concerned, at any time during the period
ending on the 180th day after the date of deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
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(6) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest as defined in this Indenture
and for purposes of the Trust Indenture Act with respect to any securities of
the Issuer or any Guarantor;
(7) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default under, this
Indenture or any other material agreement or instrument to which the Issuer, any
Guarantor or any Restricted Subsidiary is a party or by which it is bound;
(8) Such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting an investment company
within the meaning of the U.S. Investment Company Act of 1940, as amended,
unless such trust shall be registered under such Act or exempt from registration
thereunder;
(9) The Issuer or the Company shall have delivered to the
Trustee an Opinions of Independent Counsel in the United States, the United
Kingdom or any successor jurisdiction of the Issuer or any Guarantor to the
effect that after the 180th 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;
(10) The Issuer or the Company shall have delivered to the
Trustee an Officers' Certificate stating that the deposit was not made by the
Issuer or the Company with the intent of preferring the Holders of the
Securities or any Guarantee over the other creditors of the Issuer or any
Guarantor with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuer, any Guarantor or others;
(11) No event or condition shall exist that would prevent
the Issuer from making payments of the principal of, premium, if any, any
Additional Amounts and interest on the Securities on the date of such deposit or
at any time ending on the 180th day after the date of such deposit; and
(12) The Issuer or the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Independent Counsel, each
stating that all conditions precedent provided for relating to either the
defeasance under Section 402 or the covenant defeasance under Section 403 (as
the case may be) have been complied with.
Opinions of Counsel or Opinions of Independent Counsel
required to be delivered under this Section shall be in form and substance
reasonably satisfactory to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such opinions may rely on
certificates of the Issuer and the Guarantors or government or other officials
customary for opinions of the type required, which certificates shall be limited
as to matters of fact, including that various financial covenants have been
complied with.
Section 405. Deposited Money and European Government
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
1003, all Euro and European Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 404 in respect of the
Defeased Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (excluding the Issuer or
any of its Affiliates acting as Paying Agent), as the Trustee may determine, to
the Holders of such Securities of all sums due and to become due thereon in
respect of principal, premium, if any, any Additional
52
Amounts and interest but such money need not be segregated from other funds
except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the European Government
Obligations deposited pursuant to Section 404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is imposed, assessed or for the account of the Holders of the Defeased
Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon Issuer
Request any Euro or European Government Obligations held by it as provided in
Section 404 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Euro or
European Government Obligations in accordance with Section 402 or 403, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Issuer's obligations under this Indenture and the Securities and each
Guarantor's obligations under its Guarantee shall be revived and reinstated,
with present and prospective effect, as though no deposit (only to the extent
that any such Euro or European Government Obligations are prohibited from such
application) had occurred pursuant to Section 402 or 403, as the case may be,
until such time as the Trustee or Paying Agent is permitted to apply all such
Euro or European Government Obligations in accordance with Section 402 or 403,
as the case may be; provided, however, that if the Issuer or a Guarantor makes
any payment to the Trustee or Paying Agent of principal of, premium, if any, or
any Additional Amounts and interest on any Security following the reinstatement
of its obligations, the Trustee or Paying Agent shall promptly pay any such
amount to the Holders of the Securities and the Issuer shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the
Euro and European Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event 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) there shall be a default in the payment of any
interest or Additional Amounts on any Securities when it becomes due and
payable, and such default shall continue for a period of 30 days;
(b) there shall be a default in the payment of the
principal of (or premium, if any, on) any Security at its Maturity (upon
acceleration, optional or mandatory redemption, if any, required repurchase or
otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Issuer or any Guarantor under this
Indenture or any Guarantee (other than a
53
default in the performance, or breach, of a covenant or agreement which is
specifically dealt with in clause (a), (b) or in clause (ii), (iii) or (iv) of
this clause (c)) and such default or breach shall continue for a period of 30
days after written notice has been given, by certified mail, (x) to the Issuer
and the Company by the Trustee or (y) to the Issuer, the Company and the Trustee
by the Holders of the aggregate principal amount of Securities that, when taken
together with the aggregate principal amount of Existing Securities held by
holders of such Existing Securities giving written notice under the
corresponding provision of the 2000 Indenture, shall be at least 25% in
aggregate principal amount of the Securities and the Existing Securities then
outstanding, taken together as a single class; (ii) there shall be a default in
the performance or breach of the provisions of Article Eight; (iii) the Issuer
and the Company shall have failed to make or consummate an Offer in accordance
with the provisions of Section 1012; or (iv) the Issuer and the Company shall
have failed to make or consummate a Change of Control Offer in accordance with
the provisions of Section 1014;
(d) (i) any default in the payment of the principal,
premium, if any, or interest on any Indebtedness shall have occurred under any
of the agreements, indentures or instruments under which the Issuer, any
Guarantor or any Significant Restricted Subsidiary then has outstanding
Indebtedness in excess of (pound)10,000,000 when the same shall become due and
payable in full and such default shall have continued after any applicable grace
period and shall not have been cured or waived and, if not already matured at
its final maturity in accordance with its terms, the holder of such Indebtedness
shall have the right to accelerate such Indebtedness or (ii) an event of default
as defined in any of the agreements, indentures or instruments described in
clause (i) of this clause (d) shall have occurred and the Indebtedness
thereunder, if not already matured at its final maturity in accordance with its
terms, shall have been accelerated;
(e) any Guarantee shall for any reason cease to be, or
shall for any reason be asserted in writing by any Guarantor or the Issuer not
to be, in full force and effect and enforceable in accordance with its terms,
except to the extent contemplated by this Indenture and any such Guarantee;
(f) one or more judgments, orders or decrees of any court
or regulatory or administrative agency for the payment of money in excess of
(pound)10,000,000, either individually or in the aggregate, shall be rendered
against the Issuer, any Guarantor or any Significant Restricted Subsidiary or
any of their respective properties and shall not be discharged and there shall
have been a period of 30 consecutive days during which a stay of enforcement of
such judgment or order, by reason of an appeal or otherwise, shall not be in
effect;
(g) any holder or holders of at least L 10,000,000
in aggregate principal amount of Indebtedness of the Issuer, any Guarantor or
any Significant Restricted Subsidiary after a default under such Indebtedness
shall notify the Trustee of the intended sale or disposition of any assets of
the Issuer, any Guarantor or any Significant Restricted Subsidiary that have
been pledged to or for the benefit of such holder or holders to secure such
Indebtedness or shall commence proceedings, or take any action (including by way
of set-off, distress, execution or other similar process, including the
appointment of a receiver, administrative receiver, manager or similar officer),
to retain in satisfaction of such Indebtedness or to collect on, seize, dispose
of or apply in satisfaction of Indebtedness, assets of the Issuer, any Guarantor
or any Significant Restricted Subsidiary (including funds on deposit or held
pursuant to lock-box and other similar arrangements);
(h) there shall have been the entry by a court of
competent jurisdiction of (i) a decree or order for relief in respect of the
Issuer, any Guarantor or any Significant Restricted Subsidiary in an involuntary
case or proceeding under any applicable Bankruptcy Law or (ii) a
54
decree or order adjudging the Issuer, any Guarantor or any Significant
Restricted Subsidiary bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer, any
Guarantor or any Significant Restricted Subsidiary under any applicable law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Issuer, any Guarantor or any Significant
Restricted Subsidiary or of any substantial part of their respective properties
or ordering the winding up or liquidation of their affairs, and any such decree
or order or appointment pursuant to any Bankruptcy Law for relief shall continue
to be in effect, or any such other decree or order shall be unstayed and in
effect for a period of 30 consecutive days; or
(i) (i) the Issuer, any Guarantor or any Significant
Restricted Subsidiary commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be adjudicated
bankrupt or insolvent, (ii) the Issuer, any Guarantor or any Significant
Restricted Subsidiary consents to the entry of a decree or order for relief in
respect of the Issuer, such Guarantor or such Significant Restricted Subsidiary
in an involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding against it,
(iii) the Issuer, any Guarantor or any Significant Restricted Subsidiary files a
petition, application, answer or consent seeking reorganization or relief under
any applicable Bankruptcy Law, (iv) the Issuer, any Guarantor or any Significant
Restricted Subsidiary (1) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver, liquidator,
administrator, supervisor, assignee, trustee, sequestrator or similar official
of the Issuer, any Guarantor or such Significant Restricted Subsidiary or of any
substantial part of their respective properties, (2) makes an assignment for the
benefit of creditors or (3) admits in writing its inability to pay its debts
generally as they become due or (v) the Issuer, any Guarantor or any Significant
Restricted Subsidiary takes any corporate action in furtherance of any such
actions in this paragraph (i).
Section 502. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default (other than an Event of Default
specified in Sections 501(h) and (i)) shall occur and be continuing with respect
to this Indenture, the Trustee or the Holders of the aggregate principal amount
of Securities that, when taken together with the aggregate principal amount of
Existing Securities held by holders of such Existing Securities making a
declaration under the corresponding provision of the 2000 Indenture, shall be
not less than 25% in aggregate principal amount of the Securities and the
Existing Securities then outstanding, taken together as a single class, may, and
the Trustee at the written request of such Holders shall, declare all unpaid
principal of, premium, if any, any Additional Amounts and accrued interest on
all Securities to be due and payable immediately, by a notice in writing to the
Issuer and the Company (and to the Trustee if given by the Holders of the
Securities) and upon any such declaration, such principal, premium, if any, any
Additional Amounts and interest shall become due and payable immediately. If an
Event of Default specified in clause (h) or (i) of Section 501 occurs and is
continuing, then all the Securities shall ipso facto become and be due and
payable immediately in an amount equal to the principal amount of the
Securities, together with any Additional Amounts and accrued and unpaid
interest, if any, to the date the Securities become due and payable, without any
declaration or other act on the part of the Trustee or any Holder. Thereupon,
the Trustee may, at its discretion, proceed to protect and enforce the rights of
the Holders of the Securities by appropriate judicial proceedings.
After a declaration of acceleration with respect to the
Securities, but before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate principal amount of the Securities
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Outstanding, by written notice to the Issuer, the Company and the Trustee may
rescind and annul such declaration and its consequences if:
(a) the Issuer or the Company has paid or deposited with
the Trustee a sum sufficient to pay
(i) all sums paid or owed to the Trustee under
this Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest and Additional Amounts
on all Outstanding Securities,
(iii) the principal of and premium, if any, on any
Outstanding Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate borne by the Securities;
(b) the rescission would not conflict with any judgment
or decree of a court of competent jurisdiction; and
(c) all Events of Default, other than the non-payment of
principal of, premium, if any, and any Additional Amounts and interest on the
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Issuer and each Guarantor covenant that if:
(a) default is made in the payment of any interest on any
Security when such interest or any Additional Amounts becomes due and payable
and such default continues for a period of 30 days, or
(b) default is made in the payment of the principal of or
premium, if any, on any Security at the Stated Maturity thereof (upon
acceleration, optional or mandatory redemption, if any, required repurchase or
otherwise),
the Issuer and such Guarantor will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and premium, if any, and Additional
Amounts and interest, with interest upon the overdue principal and premium, if
any, and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of Additional Amounts and interest, at
the rate borne by the Securities; and, in addition thereto, 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.
If the Issuer or any Guarantor, as the case may be, fails to
pay such amounts forthwith upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid and may prosecute
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such proceeding to judgment or final decree, and may enforce the same against
the Issuer or such Guarantor or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Issuer, such Guarantor or any other obligor upon
the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture or the Guarantees by such appropriate
private or judicial proceedings as the Trustee shall deem necessary to protect
and enforce such rights, including seeking recourse against any Guarantor
pursuant to the terms of its Guarantee, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein or therein, or to enforce any other proper remedy,
including, without limitation, seeking recourse against any Guarantor pursuant
to the terms of its Guarantee, or to enforce any other proper remedy, subject
however to Section 512. No recovery of any such judgment upon any property of
the Issuer or any Guarantor shall affect or impair any rights, powers or
remedies of the Trustee or the Holders.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Issuer or any other obligor, including
any Guarantor, upon the Securities or the property of the Issuer or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Issuer for the payment of overdue principal,
Additional Amounts or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal, and premium, if any, and Additional Amounts and interest owing and
unpaid in respect of the Securities and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding 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 the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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
Securities 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 505. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture, the
Securities or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the
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Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or any arrangement or restructuring in anticipation or in
lieu of any proceeding contemplated by this Article shall be applied, subject to
applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, interest, or Additional Amounts, if any, upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid: and
FIRST: To the payment of all amounts due the Trustee under
this Indenture, including Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities, for principal, premium, if any, any Additional Amounts and
interest in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, premium, if any, any
Additional Amounts and interest; and
THIRD: The balance, if any, to the Issuer.
Section 507. Limitation on Suits.
No Holder of any Securities shall have any right to institute
any proceedings with respect to this Indenture or any remedy hereunder, unless
(a) the Holders of the aggregate principal amount of Securities that, when taken
together with the aggregate principal amount of Existing Securities held by
holders of such Existing Securities making a request under the corresponding
provision of the 2000 Indenture, shall be not less than 25% in aggregate
principal amount of the Securities and the Existing Securities then outstanding,
taken together as a single class, shall have made written request, and offered
indemnity satisfactory to the Trustee to institute such proceeding as Trustee
under the Securities and this Indenture, (b) the Trustee has failed to institute
such proceeding within 15 days after its receipt of such notice, request and
offer (and if requested, provision) of indemnity, and (c) no directions
inconsistent with such written request have been received by the Trustee during
such 15-day period from the Holders of a majority in principal amount of the
Outstanding Securities, it being understood and intended that no one or more
Holders shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture, any Security or any Guarantee to affect,
disturb or prejudice the rights of any other Holders, or to obtain or to seek to
obtain priority or preference over any other Holders or to enforce any right
under this Indenture, any Security or any Guarantee, except in the manner
provided in this Indenture and for the equal and ratable benefit of all the
Holders.
Section 508. Unconditional Right of Holders to Receive
Principal, Premium Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right based on the terms stated herein,
which is absolute and unconditional, to
58
receive payment of the principal of, premium, if any, and (subject to Section
309) any Additional Amounts and interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the repurchase date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. 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 Guarantee 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 Issuer, the Guarantors, any other obligor on the Securities, 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.
Section 510. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for exercising any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, provided that
(a) such direction shall not be in conflict with any rule
of law or with this Indenture (including, without limitation, Section 507) or
any Guarantee, expose the Trustee to personal liability, or be unduly
prejudicial to Holders not joining therein; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all
Outstanding Securities waive any past Default hereunder and its consequences,
except a Default:
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(a) in the payment of the principal of, premium, if any,
any Additional Amounts or interest on any Security (which may only be waived
with the consent of each Holder of Securities affected); or
(b) in respect of a covenant or a provision hereof which
under this Indenture cannot be modified or amended without the consent of the
Holder of each Security Outstanding affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant, but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, any Additional
Amounts or interest on, any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 515. Waiver of Stay, Extension or Usury Laws.
Each of the Issuer and the Guarantors covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead,
or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury or other law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Issuer or any Guarantor
from paying all or any portion of the principal of, premium, if any, any
Additional Amounts or interest on the Securities contemplated herein or in the
Securities or which may affect the covenants or the performance of this
Indenture; and each of the Issuer and the Guarantors (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
Section 516. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
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ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Sections
315(a) through 315(d):
(a) if a Default or an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in 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 a Default or an
Event of Default:
(1) the Trustee need perform only those duties
as are specifically set forth in this Indenture and no covenants or obligations
shall be implied in this Indenture against the Trustee; and
(2) in the absence of willful misconduct or
gross negligence 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;
(c) the Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection (c) does not limit the
effect of Subsection (b) of this Section 601;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect
to any action it takes or omits to take in good faith, in accordance with a
direction of the Holders of a majority in principal amount of Outstanding
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
confirmed upon the Trustee under this Indenture;
(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;
(e) whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
Subsections (a), (b), (c) and (d) and (f) of this Section 601; and
(f) the Trustee shall not be liable for interest on any
money or assets received by it except as the Trustee may agree with the Issuer.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
Section 602. Notice of Defaults.
Within 30 days after a Responsible Officer of the Trustee
receives written notice of the occurrence of any Default, the Trustee shall give
notice, in the manner provided in this Indenture, to all Holders (and any other
Persons entitled to receive reports pursuant to Section 313(c) of the Trust
Indenture Act) of such Default hereunder actually known to a Responsible Officer
of the Trustee, unless such Default shall have been cured or waived; provided,
however,
61
that, except in the case of a Default in the payment of the principal of,
premium, if any, any Additional Amounts or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof and Trust
Indenture Act Sections 315(a) through 315(d):
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon receipt by it of any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
Indebtedness or other paper or document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Issuer mentioned
herein shall be sufficiently evidenced by an Issuer Request or Issuer Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) the Trustee may consult with counsel of its selection
and any advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to 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 might be incurred by
the Trustee in compliance with such request or direction or;
(e) the Trustee shall not be liable for any action taken
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the gross negligence or willful misconduct of the
Trustee;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, approval, appraisal, bond, debenture, note, coupon, security or other
paper or document unless requested in writing to do so by the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require indemnity reasonably satisfactory to it
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation so requested by the Holders of
not less than 25% in aggregate principal amount of the Securities Outstanding
shall be paid by the Issuer or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Issuer upon demand; provided, further, the
Trustee in its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Issuer, personally or by agent or attorney at
the expense of the Issuer
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and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation;
(g) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(h) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture;
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(j) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Trustee Not Responsible for Recitals,
Dispositions of Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Issuer, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in any Statement of Eligibility and Qualification on Form T-1 supplied to the
Issuer are true and accurate subject to the qualifications set forth therein.
The Trustee shall not be accountable for the use or application by the Issuer of
Securities or the proceeds thereof.
Section 605. Trustee and Agents May Hold Securities;
Collections; etc.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Issuer, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Trust Indenture Act Sections 310 and 311, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article Four, the Trustee shall be
required to
63
invest all moneys received by the Trustee, until used or applied as herein
provided, in Temporary Cash Investments in accordance with the directions of the
Issuer.
Section 607. Compensation and Indemnification of Trustee and
Its Prior Claim.
The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as the
parties shall agree in writing from time to time for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) and the Issuer
covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all expenses, disbursements and advances incurred
or made by or on behalf of the Trustee in accordance with any of the provisions
of this Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its gross negligence or willful misconduct. The Issuer also covenants and
agrees to fully indemnify the Trustee and each predecessor Trustee for, and to
hold it harmless against, any and all claim, loss, liability, demand, damage,
expense (including but not limited to compensation, disbursements and expenses
of the Trustee's agents and counsel), tax, assessment or other governmental
charge (other than taxes applicable to the Trustee's compensation hereunder)
incurred without gross negligence or willful misconduct on its part, arising out
of or in connection with the acceptance or administration of this Indenture or
the trusts hereunder and its duties hereunder or its failure to act hereunder,
including enforcement of this Section 607 and also including any liability which
the Trustee may incur as a result of failure to withhold, pay or report any tax,
assessment or other governmental charge, and the costs and expenses of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuer under this Section 607 to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for reasonable expenses, disbursements and advances
shall constitute an additional obligation hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of
the Trustee and each predecessor Trustee.
Section 608. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 609. Trustee Eligibility.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a) and which
shall have a combined capital and surplus of at least US$500,000,000, to the
extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee may
appoint an agent in The City of New York reasonably acceptable to the Issuer to
conduct any activities which the Trustee may be required under this Indenture to
conduct in The City of New York. If such Trustee publishes reports of condition
at least annually, pursuant to law or to the requirements of federal, state,
territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 609, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in
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accordance with the provisions of this Section 609, the Trustee shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor
Trustee.
(a) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor trustee under
Section 611.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Issuer. Upon receiving such notice of resignation, the Issuer shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors of the Issuer, a copy of which shall be delivered to the
resigning Trustee and a copy to the successor trustee. If an instrument of
acceptance by a successor trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may, or any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition, at the expense of the Issuer, any court of competent jurisdiction for
the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper, appoint and prescribe a successor
trustee.
(c) The Trustee may be removed at any time for any cause
or for no cause by an Act of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, delivered to the
Trustee and to the Issuer. Upon receiving such notice of removal, the Issuer
shall promptly appoint a successor trustee by written instrument executed by
authority of the Board of Directors of the Issuer, a copy of which shall be
delivered to the removed Trustee and a copy to the successor trustee. If an
instrument of acceptance by a successor trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of removal, the
removed Trustee may, or any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition, at the expense of the Issuer, any court of competent
jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper, appoint and
prescribe a successor trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of Trust Indenture Act Section 310(b) after written request therefor by the
Issuer or by any Holder who has been a bona fide Holder of a Security for at
least six months,
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the Issuer or by
any Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any case, (i) the Issuer by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, the Holder of any Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of
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a successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Issuer, by a Board Resolution, shall promptly appoint a successor
trustee and shall comply with the applicable requirements of Section 611. If,
within 60 days after such resignation, removal or incapability, or the
occurrence of such vacancy, the Issuer has not appointed a successor Trustee, a
successor trustee shall be appointed by the Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Issuer and the
retiring Trustee. Such successor trustee so appointed shall forthwith upon its
acceptance of such appointment become the successor trustee and supersede the
successor trustee appointed by the Issuer. If no successor trustee shall have
been so appointed by the Issuer or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, the Trustee or the Holder of any
Security who has been a bona fide Holder for at least six months may, subject to
Section 514, on behalf of himself and all others similarly situated, petition,
at the expense of the Issuer, any court of competent jurisdiction for the
appointment of a successor trustee.
(f) The Issuer shall give notice in the manner provided
in this Indenture of each resignation and each removal of the Trustee and each
appointment of a successor trustee by giving notice to the Holders of
Securities. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 611. Acceptance of Appointment by Successor.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Issuer or
the successor trustee, upon payment of its charges pursuant to Section 607 then
unpaid, such retiring Trustee shall pay over to the successor trustee all moneys
at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor trustee all such rights and powers.
No successor trustee with respect to the Securities shall
accept appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least US$500,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 609. Upon
acceptance of appointment by any successor trustee as provided in this Section
611, the Issuer shall give notice thereof to the Holders of the Securities in
the manner provided in this Indenture. If the acceptance of appointment is
substantially contemporaneous with the appointment, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
610. If the Issuer fails to give such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
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Section 612. Merger, Conversion, Consolidation or Succession
to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by this
Indenture) shall be the successor of the Trustee hereunder, provided that such
corporation shall be eligible under Trust Indenture Act Section 310(a) and this
Article Six and shall have a combined capital and surplus of at least
US$500,000,000 and have a Corporate Trust Office or an agent selected in
accordance with Section 609, without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 613. Preferential Collection of Claims Against Issuer.
If and when the Trustee shall be or become a creditor of the
Issuer (or other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Issuer (or any such other obligor). A Trustee who has resigned or
been removed shall be subject to Trust Indenture Act Section 311(a) to the
extent indicated therein.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 701. Issuer to Furnish Trustee Names and Addresses of
Holders.
The Issuer will furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may reasonably
request in writing, within 30 days after receipt by the Issuer of any such
request, a list of similar form and content to that in subsection (a) hereof as
of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
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Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act
Section 312(b) with other Holders with respect to their rights under this
Indenture or the Securities, and the Trustee shall comply with Trust Indenture
Act Section 312(b). The Issuer, the Trustee, the Security Registrar and any
other Person shall have the protection of Trust Indenture Act Section 312(c).
Further, every Holder of Securities, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with
Trust Indenture Act Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Trust Indenture
Act Section 312.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the first May 15 after the issuance of Securities, the Trustee, if so
required under the Trust Indenture Act, shall transmit by mail to all Holders,
in the manner and to the extent provided in Trust Indenture Act Section 313(c),
a brief report dated as of such May 15 in accordance with and with respect to
the matters required by Trust Indenture Act Section 313(a). The Trustee shall
also transmit by mail to all Holders, in the manner and to the extent provided
in Trust Indenture Act Section 313(c), a brief report in accordance with and
with respect to the matters required by Trust Indenture Act Section 313(b).
(b) A copy of each report transmitted to Holders pursuant
to this Section 703 shall, at the time of such transmission, be mailed to the
Issuer and filed with each stock exchange, if any, upon which the Securities are
listed and also with the Commission. The Issuer will notify the Trustee promptly
if the Securities are listed on any stock exchange or delisted therefrom.
Section 704. Reports by Issuer.
The Issuer and any Guarantor, as the case may be, shall:
(a) file with the Trustee, within 15 days after the
Issuer or any Guarantor, as the case may be, is required to file the same with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Issuer or any Guarantor may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer or any
Guarantor, as the case may be, is not required to file information, documents or
reports pursuant to either of said Sections, then it shall (i) deliver to the
Trustee annual audited financial statements of the Company and its Subsidiaries,
prepared on a Consolidated basis in conformity with GAAP, within 120 days after
the end of each fiscal year of the Company, and (ii) file with the Trustee and,
to the extent permitted by law, the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file with the Trustee and the Commission, in
accordance with the rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with respect to
compliance by the Issuer or any Guarantor, as the case
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may be, with the conditions and covenants of this Indenture as are required from
time to time by such rules and regulations (including such information,
documents and reports referred to in Trust Indenture Act Section 314(a)); and
(c) within 15 days after the filing thereof with the
Trustee, transmit by mail to all Holders in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to be filed by the Issuer or any
Guarantor, as the case may be, pursuant to subsections (a) and (b) of this
Section as are required by rules and regulations prescribed from time to time by
the Commission.
Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Issuer's compliance with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
Section 801. Company and Guarantors May Consolidate, etc.,
Only on Certain Terms.
(a) The Company shall not, in a single transaction or
through a series of related transactions, consolidate with or merge with or into
any other Person or sell, assign, convey, transfer, lease or otherwise dispose
of all or substantially all of its properties and assets to any Person or group
of Persons, or permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions, if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company and its Restricted Subsidiaries on a Consolidated basis to
any other Person or group of Persons, unless at the time of the transaction and
after giving effect thereto:
(i) either (a) the Company will be the
continuing corporation or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, conveyance, transfer, lease or disposition all or
substantially all of the properties and assets of the Company and its Restricted
Subsidiaries on a Consolidated basis (the "Surviving Entity") will be a
corporation duly organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia or any European
Union state which was a member of the European Union as of May 4, 2000 and such
Person expressly assumes, by a supplemental indenture, in a form reasonably
satisfactory to the Trustee, all the obligations of the Company under the
Securities, its Guarantee and this Indenture, as the case may be, and the
Securities, its Guarantee and this Indenture will remain in full force and
effect as so supplemented (and any Guarantees will be confirmed as applying to
such Surviving Entity's obligations);
(ii) immediately before and immediately after
giving effect to such transaction on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Company or any of its
Restricted Subsidiaries which becomes the obligation of the Company or any of
its Restricted Subsidiaries as a result of such transaction as having been
incurred at the time of such transaction), no Default or Event of Default will
have occurred and be continuing;
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(iii) immediately after giving effect to such
transaction on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period for which financial
statements are available ending immediately prior to the consummation of such
transaction with the appropriate adjustments with respect to the transaction
being included in such pro forma calculation), the Company (or the Surviving
Entity if the Company is not the continuing obligor hereunder) could incur
(pound)1.00 of additional Indebtedness (other than Permitted Indebtedness) under
Section 1008;
(iv) at the time of the transaction, the Issuer
and each Guarantor, if any, unless it is the other party to the transactions
described above, will have by supplemental indenture confirmed the Securities or
that its Guarantee shall apply to such Person's obligations hereunder and under
the Securities; and
(v) at the time of the transaction, the Company
or the Surviving Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Independent Counsel, each to the effect
that such consolidation, merger, transfer, sale, assignment, conveyance, lease
or other transaction and the supplemental indenture in respect thereof comply
with this Indenture and that all conditions precedent herein provided for
relating to such transaction have been complied with.
(b) Each Guarantor (other than the Company) shall not and
the Company shall not permit a Guarantor (other than the Company) to, in a
single transaction or through a series of related transactions, consolidate with
or merge with or into any other Person (other than the Company or any other
Guarantor) or sell, assign, convey, transfer, lease or otherwise dispose of all
or substantially all of its properties and assets to any Person or group of
Persons (other than the Company or any other Guarantor) or permit any of its
Restricted Subsidiaries to enter into any such transaction or series of
transactions if such transaction or series of transactions, in the aggregate,
would result in a sale, assignment, conveyance, transfer, lease or disposition
of all or substantially all of the properties and assets of the Guarantor and
its Restricted Subsidiaries on a Consolidated basis to any other Person or group
of Persons (other than the Company or any other Guarantor), unless at the time
and after giving effect thereto:
(i) either (1) the Guarantor will be the continuing
corporation in the case of a consolidation or merger involving the Guarantor, or
(2) the Person (if other than the Guarantor) formed by such consolidation or
into which such Guarantor is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially all
of the properties and assets of the Guarantor and its Restricted Subsidiaries on
a Consolidated basis (the "Surviving Guarantor Entity") will be a corporation
duly organized and validly existing under the laws of the U.K., the United
States of America, any state thereof or the District of Columbia or any European
Union State which was a member of the European Union as of May 4, 2000 and such
Person expressly assumes, by a supplemental indenture, in a form reasonably
satisfactory to the Trustee, all the obligations of such Guarantor under the
Securities, its Guarantee of the Securities and this Indenture, as the case may
be, and the Securities, such Guarantee and this Indenture will remain in full
force and effect;
(ii) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Default or Event of Default
shall have occurred and be continuing; and
(iii) at the time of the transaction such Guarantor or the
Surviving Guarantor Entity, as the case may be, will have delivered, or caused
to be delivered, to the Trustee, in form and substance reasonably satisfactory
to the Trustee, an Officers' Certificate and an Opinion of
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Independent Counsel, each to the effect that such consolidation, merger,
transfer, sale, assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereof comply with this Indenture and that
all conditions precedent therein provided for relating to such transaction have
been complied with.
(c) Notwithstanding the foregoing, the provisions of
Section 801(b) shall not apply to any Guarantor whose Guarantee of the
Securities is unconditionally released and discharged in accordance with
paragraph (c) under Section 1013.
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Issuer or any Guarantor in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
or such Guarantor, as the case may be, is merged or the successor Person to
which such sale, assignment, conveyance, transfer, lease or disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company or such Guarantor, as the case may be, under this Indenture or
in the Securities and/or the Guarantees, as the case may be, with the same
effect as if such successor had been named as the Company or such Guarantor, as
the case may be, herein, in the Securities and/or in the Guarantee, as the case
may be, and the Issuer or any Guarantor, as the case may be, shall be discharged
from all obligations and covenants hereof and the Securities or its Guarantee,
as the case may be; provided that in the case of a transfer by lease, the
predecessor shall not be released from the payment of principal of premium, if
any, any Additional Amounts and interest on the Securities or a Guarantee, as
the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements without
Consent of Holders.
Without the consent of any Holders, the Issuer, the
Guarantors, any other obligor under the Securities when authorized by a Board
Resolution, and the Trustee (and, in the case of the Intercreditor Deed and the
Intercompany Note, certain parties to the Bank Credit Agreement), at any time
and from time to time, may enter into one or more indentures supplemental hereto
or agreements or other instruments with respect to any Guarantee or one or more
amendments to the Intercreditor Deed or the Intercompany Note, in form and
substance satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Issuer or any Guarantor or any other obligor upon the Securities, and the
assumption by any such successor of the covenants of the Issuer or such
Guarantor or obligor herein and in the Securities and in any Guarantee in
accordance with Article Eight;
(b) to add to the covenants of the Issuer, any Guarantor
or any other obligor upon the Securities for the benefit of the Holders or to
surrender any right or power conferred upon the Issuer or any Guarantor or any
other obligor upon the Securities, as applicable, herein, in the Securities or
in any Guarantee;
(c) to cure any ambiguity, or to correct or supplement
any provision herein or in any supplemental indenture, the Securities or any
Guarantee or in the Intercompany Note or
71
the Intercreditor Deed which may be defective or inconsistent with any other
provision herein or in the Securities or any Guarantee or in the Intercompany
Note or the Intercreditor Deed or to make any other provisions with respect to
matters or questions arising under this Indenture, the Securities or any
Guarantee or the Intercompany Note or Intercreditor Deed; provided that, in each
case, such provisions shall not adversely affect the interest of the Holders;
(d) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to add a Guarantor pursuant to the requirements of
Section 1013;
(f) to evidence and provide the acceptance of the
appointment of a successor trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Issuer's and any Guarantor's
Indenture Obligations, in any property, or assets, including any of which are
required to be mortgaged, pledged or hypothecated, or in which a security
interest is required to be granted to the Trustee pursuant to this Indenture or
otherwise; or
(h) to provide for the issuance of Additional Securities
in accordance with this Indenture as of the date hereof.
Section 902. Supplemental Indentures and Agreements with
Consent of Holders.
Except as permitted by Section 901, with the consent of the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities, by Act of said Holders delivered to the Issuer, each Guarantor, if
any, and the Trustee, the Issuer and each Guarantor (if a party thereto) when
authorized by Board Resolutions, and the Trustee (and, in the case of the
Intercreditor Deed and the Intercompany Note, certain parties to the Bank Credit
Agreement) may (i) enter into an indenture or indentures supplemental hereto or
agreements or other instruments with respect to any Guarantee, the Intercreditor
Deed or the Intercompany Note in form and substance satisfactory to the Trustee,
for the purpose of adding any provisions to or amending, modifying or changing
in any manner or eliminating any of the provisions of this Indenture, the
Securities or any Guarantee, the Intercompany Note or the Intercreditor Deed
(including but not limited to, for the purpose of modifying in any manner the
rights of the Holders under this Indenture, the Securities, any Guarantee, the
Intercompany Note or the Intercreditor Deed) or (ii) waive compliance with any
provision in this Indenture, the Securities or any Guarantee, the Intercompany
Note or the Intercreditor Deed (other than waivers of past Defaults covered by
Section 513 and waivers of covenants which are covered by Section 1025);
provided, however, that no such supplemental indenture, agreement or instrument
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the principal of, or
any installment of any Additional Amounts or interest on, or change to an
earlier date any redemption date of, or waive a default in the payment of the
principal of, premium, if any, any Additional Amounts or interest on, any such
Security or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or change the coin or
currency in which the principal of any Security or any premium or any Additional
Amounts or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date);
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(b) amend, change or modify the obligation of the Issuer
or the Company to make and consummate an Offer with respect to any Asset Sale or
Asset Sales in accordance with Section 1012 or the obligation of the Issuer or
the Company to make and consummate a Change of Control Offer in the event of a
Change of Control in accordance with Section 1014, including, in each case,
amending, changing or modifying any definitions related thereto;
(c) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver or compliance with certain provisions of this Indenture;
(d) modify any of the provisions of this Article Nine or
Section 513 or 1025, except to increase the percentage of such Outstanding
Securities required for such actions or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the Holder
of each such Security affected thereby;
(e) except as otherwise permitted under Article Eight,
consent to the assignment or transfer by the Issuer or any Guarantor of any of
its rights and obligations hereunder;
(f) amend or modify any of the provisions of this
Indenture in any manner which subordinates the Securities issued hereunder in
right of payment to any other Indebtedness of the Issuer or which subordinates
the Guarantee of the Company in right of payment to any other Indebtedness of
the Company;
(g) make any change to the provisions of this Indenture
or the Intercreditor Deed or any other provisions of this Indenture affecting
the ranking of the Securities in each case in a manner that adversely affects
the rights of the holders of the Securities;
(h) make any change in Section 1022 that adversely
affects the rights of the Holder of the Securities or amend the terms of the
Securities or this Indenture in a way that would result in a loss of an
exemption from any of the Taxes described thereunder or an exemption from any
obligation to withhold or deduct Taxes so described thereunder unless the Issuer
agrees to pay Additional Amounts (if any) in respect thereof in the supplemental
indenture; or
(i) except as permitted by the Indenture, release the
Company's Guarantee or any other Guarantee.
Upon the written request of the Issuer and each Guarantor, if
any, accompanied by a copy of Board Resolutions authorizing the execution of any
such supplemental indenture or Guarantee, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall join with
the Issuer and each Guarantor in the execution of such supplemental indenture or
Guarantee.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture or Guarantee or agreement or instrument relating to any Guarantee, but
it shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures and
Agreements.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications
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thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Trust Indenture Act Sections 315(a) through 315(d)
and Section 602 hereof) shall be fully protected in relying upon, an Opinion of
Counsel and an Officers' Certificate stating that the execution of such
supplemental indenture, agreement or instrument is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture, agreement or instrument which affects the Trustee's
own rights, duties or immunities under this Indenture, any Guarantee or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 906. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Issuer shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Issuer and each Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Issuer, any Guarantor and
the Trustee of any supplemental indenture pursuant to the provisions of Section
902, the Issuer shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in this Indenture, setting forth
in general terms the substance of such supplemental indenture. Any failure of
the Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, Interest and
Additional Amounts.
The Issuer shall duly and punctually pay the principal of,
premium, if any, any Additional Amounts and interest on the Securities in
accordance with the terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Issuer shall maintain an office or agency outside of the
United Kingdom where Securities may be presented or surrendered for payment. The
Issuer also will maintain in The City of New York an office or agency where
Securities may be surrendered for registration
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of transfer, redemption or exchange and where notices and demands to or upon the
Issuer in respect of the Securities and this Indenture may be served. The office
of the Trustee, at its Corporate Trust Office initially located at 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000; Attn: Corporate Trust Administration,
will be such office or agency of the Issuer, unless the Issuer shall designate
and maintain some other office or agency for one or more of such purposes. The
Issuer will give prompt written notice to the Trustee of the location and any
change in the location of any such offices or agencies. If at any time the
Issuer shall fail to maintain any such required offices or agencies or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the office of the
Trustee and the Issuer hereby appoints the Trustee such agent as its agent to
receive all such presentations, surrenders, notices and demands.
The Issuer may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation. For so long as any securities are listed on
the Luxembourg Stock Exchange and it is required by the Luxembourg Stock
Exchange, if Definitive Registered Securities are issued, the Issuer will
appoint a Person located in Luxembourg and reasonably acceptable to the Trustee,
as an additional Paying Agent and transfer agent. The Issuer will give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such office or agency.
The Trustee shall initially act as Paying Agent for the
Securities.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Issuer or any of its Affiliates shall at any time act
as Paying Agent, it will, on or before each due date of the principal of,
premium, if any, any Additional Amounts or interest on any of the Securities,
segregate and hold in trust for the benefit of the Holders entitled thereto a
sum sufficient to pay the principal, premium, if any, any Additional Amounts or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
If the Issuer or any of its Affiliates is not acting as Paying
Agent, the Issuer will, on or before each due date of the principal of, premium,
if any, any Additional Amounts or interest on any of the Securities, deposit
with a Paying Agent a sum in same day funds sufficient to pay the principal,
premium, if any, any Additional Amounts or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium, any Additional Amounts or interest and (unless such Paying Agent is the
Trustee) the Issuer will promptly notify the Trustee of such action or any
failure so to act.
If the Issuer is not acting as Paying Agent, the Issuer will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of, premium, if any, any Additional Amounts or interest on the
Securities in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any Default by the Issuer
or any Guarantor (or any other obligor upon the Securities) in the making of any
payment of principal, premium, if any, any Additional Amounts or interest on the
Securities;
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(c) at any time during the continuance of any such
Default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all
aspects with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of, premium,
if any, any Additional Amounts or interest on any Security and remaining
unclaimed for two years after such principal and premium, if any, or interest or
Additional Amounts has become due and payable shall promptly be paid to the
Issuer on Issuer Request, or (if then held by the Issuer) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Issuer as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may give to each such Holder in the manner provided
in this Indenture, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification, publication and mailing, any unclaimed balance of such money
then remaining will promptly be repaid to the Issuer.
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory) of
the Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise or the corporate
existence of any such Restricted Subsidiary (other than the Issuer or any
Guarantor) if the Board of Directors of the Company shall determine that the
preservation thereof is no longer necessary or desirable in the conduct of the
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders; and
provided, further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Restricted Subsidiary or any of its assets in
compliance with the terms of this Indenture.
Section 1005. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any of its Restricted Subsidiaries shown to be due on any return of the
Company or any of its Restricted Subsidiaries or otherwise assessed or due and
payable or upon the income, profits or property of the Company or any of its
Restricted Subsidiaries if failure to pay or discharge the same could reasonably
be expected to have a material adverse effect on the ability of the Issuer or
any Guarantor to perform its obligations hereunder and (b) all lawful claims for
labor, materials and supplies, which, if unpaid, would by law become a Lien upon
the property of the Company or any of its Restricted Subsidiaries, except for
any Lien permitted to be incurred under Section 1011, if failure to pay or
76
discharge the same could reasonably be expected to have a material adverse
effect on the ability of the Issuer or any Guarantor to perform its obligations
hereunder; provided, however, that the Company shall not be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings properly instituted and diligently conducted and in
respect of which appropriate reserves (in the good faith judgment of management
of the Company) are being maintained in accordance with GAAP.
Section 1006. Maintenance of Properties.
The Company shall cause all material properties owned by the
Company or any of its Restricted Subsidiaries or used or held for use in the
conduct of its business or the business of any of its Restricted Subsidiaries to
be maintained and kept in good condition, repair and working order (ordinary
wear and tear excepted) and supplied with all necessary equipment and will cause
to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the reasonable judgment of the Company may be
consistent with sound business practice and necessary so that the business
carried on in connection therewith may be properly conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the reasonable judgment of the Board of Directors acting
in good faith, desirable in the conduct of its business or the business of any
of its Restricted Subsidiaries and not disadvantageous in any material respect
to the Holders; and provided, further, however, that the foregoing shall not
prohibit a sale, transfer or conveyance of a Restricted Subsidiary or any of its
properties or assets in compliance with the terms of this Indenture.
Section 1007. Maintenance of Insurance.
The Company shall at all times keep all of its and its
Restricted Subsidiaries' properties which are of an insurable nature insured
with insurers, believed by the Company in good faith to be financially sound and
responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties in the same general geographic areas in which the Company and
its Restricted Subsidiaries operate, except where the failure to do so could not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or prospects of the Company
and its Subsidiaries, taken as a whole.
Section 1008. Limitation on Indebtedness.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee
or otherwise in any manner become directly or indirectly liable for the payment
of or otherwise incur, contingently or otherwise (collectively, "incur"), any
Indebtedness (including any Acquired Indebtedness), unless such Indebtedness (i)
is incurred by the Issuer, the Company or any Guarantor, (ii) is Indebtedness of
a Restricted Subsidiary that is not the Issuer or a Guarantor, provided that the
aggregate principal amount of all such Indebtedness incurred pursuant to this
clause (ii) does not exceed L 75,000,000 outstanding at any one time in the
aggregate, or (iii) constitutes Acquired Indebtedness of a Restricted Subsidiary
and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for
the most recent four full fiscal quarters for which financial statements are
available immediately preceding the incurrence of such Indebtedness taken as one
period is at least equal to or greater than 2.0:1.
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Notwithstanding the foregoing, the Company and, to the extent
specifically set forth below, the Restricted Subsidiaries may incur each and all
of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company and its
Restricted Subsidiaries under the Senior Credit Facilities (a) pursuant to loans
or other Indebtedness not in excess of L215,000,000 and (b) pursuant to
loans or other Indebtedness not in excess of $85,000,000, the amount in clause
(a) to be reduced by principal payments made since May 4, 2000 in respect of any
term loans which constitute a part of any Indebtedness described in clause (a),
and the amount in clause (b) to be reduced by principal payments made since May
4, 2000 in respect of any term loans which constitute a part of any Indebtedness
described in clause (b);
(ii) Indebtedness of E 200,000,000 principal
amount of the Issuer's 2000 Notes issued pursuant to the 2000 Indenture,
including the 2000 Exchange Notes, and Indebtedness of E200,000,000
principal amount of the Company and any Guarantor pursuant to the 2000
Guarantees, including the 2000 Exchange Guarantees;
(iii) Indebtedness of the Company or any
Restricted Subsidiary outstanding on May 4, 2000 and not otherwise referred to
in this definition of "Permitted Indebtedness";
(iv) Indebtedness of the Company owing to a
Restricted Subsidiary; provided that any disposition or transfer of any such
Indebtedness to a Person (other than a disposition or transfer to a Restricted
Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the
Company or other obligor not permitted by this clause (iv);
(v) Indebtedness of a Restricted Subsidiary
owing to the Company or another Restricted Subsidiary; provided that any
disposition or transfer of any such Indebtedness to a Person (other than a
disposition or transfer to the Company or a Restricted Subsidiary) shall be
deemed to be an incurrence of such Indebtedness by the obligor not permitted by
this clause (v);
(vi) guarantees of any Restricted Subsidiary made
in accordance with the provisions of Section 1013;
(vii) obligations of the Company or any Restricted
Subsidiary entered into in the ordinary course of business (a) pursuant to
Interest Rate Agreements designed to protect the Company or any Restricted
Subsidiary against fluctuations in interest rates in respect of Indebtedness of
the Company or any Restricted Subsidiary as long as such obligations do not
exceed the aggregate principal amount of such Indebtedness then outstanding, (b)
under any Currency Hedging Agreements, relating to (i) Indebtedness of the
Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell
assets or properties, in each case, incurred in the ordinary course of business
of the Company or any Restricted Subsidiary; provided, however, that such
Currency Hedging Agreements do not increase the Indebtedness or other
obligations of the Company or any Restricted Subsidiary outstanding other than
as a result of fluctuations in foreign currency exchange rates or by reason of
fees, indemnities and compensation payable thereunder or (c) under any Commodity
Price Protection Agreements which do not increase the amount of Indebtedness or
other obligations of the Company or any Restricted Subsidiary outstanding other
than as a result of fluctuations in commodity prices or by reason of fees,
indemnities and compensation payable thereunder;
(viii) Indebtedness of the Company or any
Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money
Obligations or other Indebtedness
78
incurred or assumed in connection with the acquisition or development of real or
personal, movable or immovable, property or other assets, in each case incurred
for the purpose of financing or refinancing all or any part of the purchase
price, lease expense or cost of construction or improvement of property used in
the business of the Company and its Restricted Subsidiaries in an aggregate
principal amount pursuant to this clause (viii) not to exceed L15,000,000
outstanding at any time; provided that the principal amount of any Indebtedness
permitted under this clause (viii) did not in each case at the time of
incurrence exceed the Fair Market Value, as determined by the Company in good
faith, of the acquired or constructed asset or improvement so financed;
(ix) any renewals, extensions, substitutions,
refundings, refinancings or replacements (collectively a "refinancing") of any
Indebtedness described in the first paragraph of this covenant (or the
equivalent paragraph of the 2000 Indenture) and clauses (ii), (iii) and this
subparagraph (ix) of this definition of "Permitted Indebtedness" (or the
equivalent clauses and subparagraph of the 0000 Xxxxxxxxx), including any
successive refinancings so long as the borrower under such refinancing is the
Company or other Guarantor or, if not the Company or any other Guarantor, the
same as the borrower of the Indebtedness being refinanced and the aggregate
principal amount of Indebtedness represented thereby (or if such Indebtedness
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof, the original
issue price of such Indebtedness plus any accreted value attributable thereto
since the original issuance of such Indebtedness) is not increased by such
refinancing plus the lesser of (I) 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 or (II) the amount of premium or
other payment actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Company and its Restricted
Subsidiaries incurred in connection with such refinancing and (A) in the case of
any refinancing of Indebtedness that is Subordinated Indebtedness, such new
Indebtedness is made subordinated to the Securities at least to the same extent
as the Indebtedness being refinanced and (B) in the case of Pari Passu
Indebtedness or Subordinated Indebtedness, as the case may be, such refinancing
does not reduce the Average Life to Stated Maturity or the Stated Maturity of
such Indebtedness;
(x) Indebtedness of the Company and its
Restricted Subsidiaries in respect of (I) letters of credit issued in the
ordinary course of business of such Person with respect to trade payables
relating to purchase of materials by such Person and (II) other letters of
credit, surety, performance or appeal bonds, completion guarantees or similar
instruments issued in the ordinary course of business of such Person, including
letters of credit or similar instruments in respect of self-insurance and
workers compensation obligations, not to exceed L 5,000,000 in the
aggregate outstanding at any time;
(xi) Indebtedness of the Company and its
Restricted Subsidiaries in addition to that described in clauses (i) through (x)
above, and any renewals, extensions, substitutions, refinancings or replacements
of such Indebtedness, so long as the aggregate principal amount of all such
Indebtedness shall not exceed L 20,000,000 outstanding at any one time in
the aggregate (it being understood that any Indebtedness incurred under this
clause (xi) will cease to be deemed incurred or outstanding for purposes of this
clause (xi) but will be deemed to be incurred for purposes of the first
paragraph of this covenant from and after the date on which the borrowing entity
could have incurred this Indebtedness under the first paragraph of this covenant
without reliance upon this clause (xi)); and
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(xii) Indebtedness of the Company and its
Restricted Subsidiaries owed to their employees relating to employee stock
purchase plans.
(b) Notwithstanding any other provision in this Section
1008, the maximum amount that the Company or a Restricted Subsidiary may incur
pursuant to this Section 1008 shall not be deemed to be exceeded, with respect
to any outstanding Indebtedness, due solely to the result of fluctuations in the
exchange rates of currencies.
(c) For purposes of determining compliance with this
Section 1008, in the event that an item of Indebtedness meets the criteria of
more than one of the types of Indebtedness permitted by this Section 1008, the
Company in its sole discretion shall classify and from time to time may
reclassify such item of Indebtedness and only be required to include the amount
of such Indebtedness as one of such types.
(d) For purposes of determining any particular amount of
Indebtedness under this Section 1008, guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in the
determination of a particular amount will not be included.
(e) For purposes of determining compliance with this
Section 1008, the principal amount of Indebtedness issued at a price that is
less than the principal amount thereof will be equal to the amount of the
liability in respect thereof determined in conformity with GAAP. Accrual of
interest, accrual of dividends, the accretion of accreted value and the payment
of interest in the form additional Indebtedness will not be deemed to be an
incurrence of Indebtedness for purposes of this Section 1008.
Section 1009. Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit
any Restricted Subsidiary to, directly or indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's Capital Stock (other
than dividends or distributions payable solely in shares of its Qualified
Capital Stock or in options, warrants or other rights to acquire shares of such
Qualified Capital Stock);
(ii) purchase, redeem, defease or otherwise acquire or
retire for value, directly or indirectly, the Company's Capital Stock or any
Capital Stock of any Affiliate of the Company held by Persons other than the
Company or a Restricted Subsidiary or options, warrants or other rights to
acquire such Capital Stock;
(iii) make any principal payment on, or repurchase,
redeem, defease, retire or otherwise acquire for value, prior to any scheduled
principal payment, sinking fund payment or maturity, any Subordinated
Indebtedness (other than Subordinated Indebtedness owing to the Company or any
Restricted Subsidiary);
(iv) declare or pay any dividend or distribution on any
Capital Stock of any Restricted Subsidiary to any Person (other than (a) to the
Company or any of its Wholly Owned Restricted Subsidiaries, (b) dividends or
distributions made by a Restricted Subsidiary on a pro rata basis to all
stockholders of such Restricted Subsidiary or (c) dividends or distributions
payable solely in its Qualified Capital Stock or in options, warrants or other
rights to acquire shares of such Qualified Capital Stock); or
(v) make any Investment in any Person (other than any
Permitted Investments)
80
(any of the foregoing actions described in clauses (i) through (v), other than
any such action that is a Permitted Payment (as defined below), collectively,
"Restricted Payments") (the amount of any such Restricted Payment, if other than
cash, shall be the Fair Market Value of the assets proposed to be transferred,
as determined by the Board of Directors of the Company, whose determination
shall be conclusive and evidenced by a Board Resolution), unless (1) immediately
before and immediately after giving effect to such proposed Restricted Payment
on a pro forma basis, no Default or Event of Default shall have occurred and be
continuing and such Restricted Payment shall not be an event which is, or after
notice or lapse of time or both would be, an "event of default" under the terms
of any Indebtedness of the Company or its Restricted Subsidiaries; (2)
immediately before and immediately after giving effect to such Restricted
Payment on a pro forma basis, the Company could incur L1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions described
in Section 1008; and (3) after giving effect to the proposed Restricted Payment,
the aggregate amount of all such Restricted Payments declared or made after May
4, 2000 does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income
of the Company accrued on a cumulative basis during the period beginning on July
1, 2000 and ending on the last day of the Company's last fiscal quarter ending
prior to the date of the Restricted Payment (or, if such aggregate cumulative
Consolidated Net Income shall be a loss, minus 100% of such loss);
(B) the aggregate Net Cash Proceeds received by
the Company after May 4, 2000 either (x) as capital contributions to the Company
in the form of ordinary share capital or (y) from the issuance or sale (other
than to any of its Subsidiaries) of Qualified Capital Stock of the Company or
any options, warrants or rights to purchase such Qualified Capital Stock of the
Company (except, in each case, to the extent such proceeds are used to purchase,
redeem or otherwise retire Capital Stock or Subordinated Indebtedness as set
forth below in clause (ii) or (iii) of paragraph (b) below) (and excluding the
Net Cash Proceeds from the issuance of Qualified Capital Stock financed,
directly or indirectly, using funds borrowed from the Company or any Subsidiary
until and to the extent such borrowing is repaid);
(C) the aggregate Net Cash Proceeds received
after May 4, 2000 by the Company (other than from any of its Subsidiaries) upon
the exercise of any options, warrants or rights to purchase Qualified Capital
Stock of the Company (and excluding the Net Cash Proceeds from the exercise of
any options, warrants or rights to purchase Qualified Capital Stock financed,
directly or indirectly, using funds borrowed from the Company or any Subsidiary
until and to the extent such borrowing is repaid);
(D) the aggregate Net Cash Proceeds received
after May 4, 2000 by the Company from the conversion or exchange, if any, of
debt securities or Redeemable Capital Stock of the Company or its Restricted
Subsidiaries into or for Qualified Capital Stock of the Company plus, to the
extent such debt securities or Redeemable Capital Stock were issued May 4, 2000,
the aggregate of Net Cash Proceeds from their original issuance (and excluding
the Net Cash Proceeds from the conversion or exchange of debt securities or
Redeemable Capital Stock financed, directly or indirectly, using funds borrowed
from the Company or any Subsidiary until and to the extent such borrowing is
repaid); and
(E) the amount equal to the net reduction in an
Investment that had been a Restricted Payment under the 0000 Xxxxxxxxx or this
Indenture made by the Company or any of its Restricted Subsidiaries in any
Person resulting from:
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(i) repurchases or redemptions of such
Investments by such Person, proceeds realized upon the sale of such Investment,
repayments of loans or advances or other transfers of assets (including by way
of dividend or distribution) by such Person to the Company or any Restricted
Subsidiary; or
(ii) the redesignation of Unrestricted
Subsidiaries as Restricted Subsidiaries not to exceed, in the case of any
Unrestricted Subsidiary, the amount of Investments previously made by the
Company or any Restricted Subsidiary in such Unrestricted Subsidiary, which
amount in each case under this clause (E) was included in the calculation of the
amount of Restricted Payments; provided, however, that no amount will be
included under this clause (E) to the extent it is already included in
Consolidated Net Income.
(b) Notwithstanding the foregoing, and in the case of
clauses (ii) through (vii) below, so long as no Default or Event of Default is
continuing or would arise therefrom, the foregoing provisions shall not prohibit
the following actions (each of clauses (i) through (vii) being referred to as a
"Permitted Payment"):
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at such date of declaration such
payment was permitted by the provisions of paragraph (a) of this Section and
such payment shall have been deemed to have been paid on such date of
declaration and shall not have been deemed a "Permitted Payment" for purposes of
the calculation required by paragraph (a) of this Section;
(ii) the repurchase, redemption, or other
acquisition or retirement for value of any shares of any class of Capital Stock
of the Company in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection with which cash is
paid in lieu of the issuance of fractional shares or scrip), or out of the Net
Cash Proceeds of a substantially concurrent issuance and sale for cash (other
than to a Subsidiary) of, other shares of Qualified Capital Stock of or a
capital contribution to the Company; provided that the Net Cash Proceeds from
the issuance of such shares of Qualified Capital Stock are excluded from clause
(3)(B) of paragraph (a) of this Section;
(iii) the repurchase, redemption, defeasance,
retirement or acquisition for value or payment of principal of any Subordinated
Indebtedness in exchange for, or in an amount not in excess of the Net Cash
Proceeds of, a substantially concurrent issuance and sale for cash (other than
to any Subsidiary of the Company) of any Qualified Capital Stock of or a capital
contribution to the Company, provided that the Net Cash Proceeds from the
issuance of such shares of Qualified Capital Stock are excluded from clause
(3)(B) of paragraph (a) of this Section;
(iv) the repurchase, redemption, defeasance,
retirement, refinancing, acquisition for value or payment of principal of any
Subordinated Indebtedness (other than Redeemable Capital Stock) (a
"refinancing") through the substantially concurrent issuance of new Subordinated
Indebtedness of the Company, provided that any such new Subordinated
Indebtedness (1) shall be in a principal amount that does not exceed the
principal amount so refinanced (or, if such Subordinated Indebtedness provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration thereof, then such lesser amount as of the date of
determination), plus the lesser of (I) 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 or (II) the amount of premium or
other payment actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses of the Company incurred in connection with
such refinancing; (2) has an Average Life to Stated
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Maturity greater than the remaining Average Life to Stated Maturity of the
Securities; (3) has a Stated Maturity for its final scheduled principal payment
later than the Stated Maturity for the final scheduled principal payment of the
Securities; and (4) is expressly subordinated in right of payment to the
Securities at least to the same extent as the Subordinated Indebtedness to be
refinanced;
(v) the repurchase, redemption, defeasance,
retirement, refinancing or other acquisition of Subordinated Indebtedness of the
Company, the Issuer or any Guarantor (other than Subordinated Indebtedness held
by Affiliates of the Company) upon a Change of Control or Asset Sale to the
extent required by the agreement governing such Subordinated Indebtedness, but
only (x) if the Company and the Issuer shall have complied with Section 1014 or
Section 1012, as the case may be, and the Company and the Issuer repurchased all
Securities tendered pursuant to the offer required by such covenants prior to
offering to purchase, purchasing or repaying such Subordinated Indebtedness and
(y) in the case of an Asset Sale, to the extent of the Excess Proceeds offered
to holders of the Securities pursuant to the offer made pursuant to the Asset
Sale;
(vi) to the extent constituting Restricted
Payments, the Specified Affiliate Payments; and
(vii) repurchases of Capital Stock deemed to occur
upon the exercise of stock options granted to employees of the Company and its
Subsidiaries if such Capital Stock represents a portion of the exercise price
thereof.
In determining the amount of Restricted Payments permissible
under this covenant amounts expended pursuant to clauses (vi) and (vii) of the
immediately preceding paragraph shall be included as Restricted Payments and
amounts expended pursuant to clauses (i), (ii), (iii), (iv) and (v) shall be
excluded. The amount of any non-cash Restricted Payment shall be deemed to be
equal to the Fair Market Value thereof at the date of making of such Restricted
Payment.
Section 1010. Limitation on Transactions with Affiliates.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, enter into any transaction
or series of related transactions (including without limitation, the sale,
purchase, exchange or lease of assets, property or services) with or for the
benefit of any Affiliate of the Company (other than the Company or a Restricted
Subsidiary) unless such transaction or series of related transactions is entered
into in good faith and in writing and (a) such transaction or series of related
transactions is on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than those that would be available in
a comparable transaction in arm's-length dealings with an unrelated third party,
(b) with respect to any transaction or series of related transactions involving
aggregate value in excess of L 1,000,000, the Company delivers an Officers'
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (a) above, (c) with respect to any transaction
or series of related transactions involving aggregate value in excess of
L 5,000,000, either (i) such transaction or series of related transactions
has been approved by a majority of the Disinterested Directors of the Board of
Directors of the Company, or in the event there is only one Disinterested
Director, by such Disinterested Director, or (ii) the Company delivers to the
Trustee a written opinion of an accounting, appraisal or investment banking firm
of international standing or other recognized independent expert with experience
appraising the terms and conditions of the type of transaction or series of
related transactions for which an opinion is required stating that the
transaction or series of related transactions is on
83
terms not materially less favorable than might reasonably have been obtained in
a comparable transaction at such time on an arms-length basis from a Person who
is not an Affiliate and (d) with respect to any transaction or series of related
transactions involving aggregate value in excess of L 10,000,000, (i) such
transaction or series of related transactions has been approved by a majority of
the Disinterested Directors of the board of directors of the Company, or in the
event there is only one Disinterested Director, by such Disinterested Director
and (ii) the Company delivers to the Trustee a written opinion of an accounting,
appraisal or investment banking firm of international standing or other
recognized independent expert with experience appraising the terms and
conditions of the type of transaction or series of related transactions for
which an opinion is required stating that the transaction or series of related
transactions is on terms not materially less favorable than might reasonably
have been obtained in a comparable transaction at such time on an arms-length
basis from a Person who is not an Affiliate; provided, however, that this
provision shall not apply to (i) any employment agreement, collective bargaining
agreement, employee benefit arrangements with any officer or director of the
Company or any Restricted Subsidiary, including under any stock option or stock
incentive plans, entered into in the ordinary course of business; (ii) payment
of compensation to employees, officers or directors in the ordinary course of
business; (iii) maintenance in the ordinary course of business (and payments
required thereby or) of benefit programs, or arrangements for employees,
officers or directors, including vacation plans, health and life insurance
plans, deferred compensation plans, directors' and officers' indemnification
agreements and retirement or savings plans and similar plans or (iv) loans or
advances to employees (or guarantees of third party loans to employees) in the
ordinary course of business.
Section 1011. Limitation on Liens.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, create, incur or affirm any
Lien of any kind upon any property or assets (including any intercompany notes)
of the Company or any Restricted Subsidiary owned on May 4, 2000 or thereafter
acquired, or assign or convey any right to receive any income or profits
therefrom, unless the Securities (or a Guarantee in the case of Liens of a
Guarantor) are directly secured equally and ratably with (or, in the case of
Subordinated Indebtedness, prior or senior thereto, with the same relative
priority as the Securities or such Guarantee shall have with respect to such
Subordinated Indebtedness) the obligation or liability secured by such Lien,
except for any Permitted Liens.
Section 1012. Limitation on Sale of Assets.
(a) The Company will not, and will not cause or permit
any of its Restricted Subsidiaries to, directly or indirectly, consummate an
Asset Sale unless (i) at least 75% of the consideration from such Asset Sale is
received (A) in cash or Temporary Cash Investments or (B) in the form of
properties and capital assets to be used in business of the Company and its
Restricted Subsidiaries and (ii) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the shares or assets subject to such Asset Sale (as determined
by the Board of Directors of the Company and evidenced in a Board Resolution).
(b) If all or a portion of the Net Cash Proceeds of any
Asset Sale are not required to be applied to repurchase or repay permanently any
Indebtedness under the Senior Credit Facilities then outstanding as required by
the terms thereof, or the Company or any Restricted Subsidiary determines not to
apply such Net Cash Proceeds to the permanent prepayment of such Indebtedness
under the Senior Credit Facilities or other Indebtedness of the Company and its
Subsidiaries that is not Pari Passu Indebtedness or Subordinated Indebtedness,
84
or if no such Indebtedness is then outstanding, then the Company or a Restricted
Subsidiary may within 365 days of the Asset Sale invest, or to commit to invest
(provided that it actually invests within the later of 365 days of the Asset
Sale and 90 days of the commitment), the Net Cash Proceeds in properties and
other assets that (as determined by the Board of Directors of the Company)
replace the properties and assets that were the subject of the Asset Sale or in
properties and assets that will be used in the businesses of the Company or its
Restricted Subsidiaries existing on May 4, 2000 or in businesses reasonably
related thereto. The amount of such Net Cash Proceeds not used or invested
within 365 days of the Asset Sale or invested within the later of 365 days of
the Asset Sale and 90 days of a commitment to invest as set forth in this
paragraph constitutes "Excess Proceeds." Pending the final application of the
Net Cash Proceeds, the Company or any Restricted Subsidiary may temporarily
reduce Indebtedness or otherwise invest such Net Cash Proceeds in any manner
that is not prohibited by this Indenture.
(c) When the aggregate amount of Excess Proceeds exceeds
L 10,000,000 or more, the Issuer or the Company will apply the Excess
Proceeds to the repayment of the Securities, the Existing Securities and any
other Pari Passu Indebtedness outstanding with similar provisions requiring the
Company or a Restricted Subsidiary to make an offer to purchase such
Indebtedness with the proceeds from any Asset Sale as follows: (A) the Issuer,
the Company or a Restricted Subsidiary will make an offer to purchase (an
"Offer") from all holders of the Securities in accordance with the procedures
set forth in this Indenture in the maximum principal amount (expressed as a
multiple of E 1,000) of Securities that may be purchased out of an amount
(the "Security Amount") equal to the product of such Excess Proceeds multiplied
by a fraction, the numerator of which is the outstanding principal amount of the
Securities, and the denominator of which is the sum of the outstanding principal
amount of the Securities and such Pari Passu Indebtedness (subject to proration
in the event such amount is less than the aggregate Offered Price (as defined
herein) of all Securities tendered) and (B) to the extent required by such Pari
Passu Indebtedness to permanently reduce the principal amount of such Pari Passu
Indebtedness, the Issuer, the Company or a Restricted Subsidiary, as the case
may be, will make an offer to purchase or otherwise repurchase or redeem the
Existing Securities and other Pari Passu Indebtedness (a "Pari Passu Offer") in
an amount (the "Pari Passu Debt Amount") equal to the excess of the Excess
Proceeds over the Security Amount; provided that in no event will the Issuer,
the Company or a Restricted Subsidiary be required to make a Pari Passu Offer in
a Pari Passu Debt Amount exceeding the principal amount of such Pari Passu
Indebtedness plus the amount of any premium required to be paid to repurchase
such Pari Passu Indebtedness. The offer price for the Securities will be payable
in cash in an amount equal to 100% of the principal amount of the Securities
plus accrued and unpaid interest, if any, to the date (the "Offer Date") such
Offer is consummated (the "Offered Price"), in accordance with the procedures
set forth in this Indenture. To the extent that the aggregate Offered Price of
the Securities tendered pursuant to the Offer is less than the Security Amount
relating thereto or the aggregate amount of Pari Passu Indebtedness that is
purchased in a Pari Passu Offer is less than the Pari Passu Debt Amount, the
Company or any Restricted Subsidiary may use any remaining Excess Proceeds for
general corporate purposes not otherwise prohibited by the 2000 Indenture. If
the aggregate principal amount of Securities and Pari Passu Indebtedness
surrendered by holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Securities to be purchased on a pro rata basis. Upon
the completion of the purchase of all the Securities tendered pursuant to an
Offer and the completion of a Pari Passu Offer, the amount of Excess Proceeds,
if any, shall be reset at zero.
(d) If the Issuer, the Company or a Restricted Subsidiary
becomes obligated to make an Offer pursuant to clause (c) above, the Securities
and the Pari Passu Indebtedness shall
85
be purchased by the Issuer, the Company or a Restricted Subsidiary, at the
option of the holders thereof, in whole or in part (in integral multiples of
E 1,000, in the case of the Securities) on a date that is not earlier than
30 days and not later than 60 days from the date the notice of the Offer is
given to holders, or such later date as may be necessary for the Issuer, the
Company or a Restricted Subsidiary to comply with the requirements under the
Exchange Act or other applicable laws or regulations (including, without
limitation, those of any securities exchange on which the Securities are
listed).
(e) If the Issuer, the Company or a Restricted Subsidiary
is required to make an Offer, the Issuer, the Company and such Restricted
Subsidiary will comply with the applicable tender offer rules, including Rule
14e-1 under the Exchange Act, and any other applicable securities laws or
regulations (including those of the U.S. and the U.K.) in connection with an
Offer. To the extent that the provisions of any applicable securities laws or
regulations conflict with the provisions of this Section 1012 (other than the
obligation to make an Offer pursuant to this Section 1012), the Issuer, the
Company and such Restricted Subsidiary, as the case may be, will comply with the
securities laws and regulations and will not be deemed to have breached its
obligations described in this Section 1012 by virtue thereof.
(f) If the Offer Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest will be paid to the Person in whose name a Security is registered at
the close of business on such record date, and no additional interest will be
payable to holders of the Securities who tender Securities pursuant to the
Offer.
(g) Subject to paragraph (d) above, within 30 days after
the date on which the amount of Excess Proceeds equals or exceeds
L 10,000,000, the Issuer shall send or cause a notice to be sent by
first-class mail, postage prepaid, to the Trustee and notice to each Holder
stating or including:
(1) that the Holder has the right to require the
Company to repurchase, subject to proration, such Holder's Securities at the
Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in
order to have his Securities purchased in accordance with paragraph (c) of this
Section;
(4) (i) a description of material developments,
if any, in the Company's business subsequent to the date of the latest filings
by the Company with the Commission, (ii) if material, appropriate pro forma
financial information, and (iii) such other information, if any, concerning the
business of the Company which the Company in good faith believes will enable
such Holders to make an informed investment decision regarding the Offer;
(5) the Offered Price;
(6) the names and addresses of the Paying Agent
and the offices or agencies referred to in Section 1002;
(7) that Securities must be surrendered prior to
the Offer Date to the Paying Agent at the office of the Paying Agent or to an
office or agency referred to in Section 1002 to collect payment;
(8) that the Offer will remain open for 20
Business Days following commencement and that any Securities not tendered will
continue to accrue interest and that
86
unless the Issuer defaults in the payment of the Offered Price, any Security
accepted for payment pursuant to the Offer shall cease to accrue interest on and
after the Offer Date;
(9) the procedures for withdrawing a tender; and
(10) that the Offered Price for any Security
which has been properly tendered and not withdrawn and which has been accepted
for payment pursuant to the Offer will be paid promptly following the Offer
Date.
(h) Holders electing to have Securities purchased
hereunder will be required to surrender such Securities at the address specified
in the notice prior to the Offer Date. Holders will be entitled to withdraw
their election to have their Securities purchased pursuant to this Section 1012
if the Issuer receives, not later than one Business Day prior to the Offer Date,
a telegram, telex, facsimile transmission or letter setting forth (1) the name
of the Holder, (2) the certificate number (if applicable) of the Security in
respect of which such notice of withdrawal is being submitted, (3) the principal
amount of the Security (which shall be E1,000 or an integral multiple
thereof) delivered for purchase by the Holder as to which his election is to be
withdrawn, (4) a statement that such Holder is withdrawing his election to have
such principal amount of such Security purchased, and (5) the principal amount,
if any, of such Security (which shall be E1,000 or an integral multiple
thereof) that remains subject to the original notice of the Offer and that has
been or will be delivered for purchase by the Issuer.
(i) The Issuer shall (i) not later than the Offer Date,
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) not later than 10:00 a.m. (London time) on the Offer Date, deposit
with the Trustee or with a Paying Agent an amount of money in same day funds
sufficient to pay the aggregate Offered Price of all the Securities or portions
thereof which are to be purchased on that date and (iii) not later than 10:00
a.m. (London time) on the Offer Date, deliver to the Paying Agent an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Issuer. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Offered Price of the
Securities purchased from each such Holder, and the Issuer shall execute and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Paying Agent at the Issuer's expense to the Holder thereof. For
purposes of this Section 1012, the Issuer shall choose a Paying Agent which
shall not be the Issuer.
Subject to applicable escheat laws, the Trustee and the Paying
Agent shall return to the Issuer any cash that remains unclaimed, together with
interest, if any, thereon, held by them for the payment of the Offered Price;
provided, however, that (x) to the extent that the aggregate amount of cash
deposited by the Issuer with the Trustee in respect of an Offer exceeds the
aggregate Offered Price of the Securities or portions thereof to be purchased,
then the Trustee shall hold such excess for the Issuer and (y) unless otherwise
directed by the Issuer in writing, promptly after the Business Day following the
Offer Date the Trustee shall return any such excess to the Issuer together with
interest or dividends, if any, thereon.
(j) Securities to be purchased shall, on the Offer Date,
become due and payable at the Offered Price and from and after such date (unless
the Issuer shall default in the payment of the Offered Price) such Securities
shall cease to bear interest. Such Offered Price shall be paid to such Holder
promptly following the later of the Offer Date and the time of delivery of such
Security to the relevant Paying Agent at the office of such Paying Agent by the
Holder thereof in the manner required. Upon surrender of any such Security for
purchase in
87
accordance with the foregoing provisions, such Security shall be paid by the
Issuer at the Offered Price; provided, however, that installments of interest
whose Stated Maturity is on or prior to the Offer Date shall be payable to the
Holder according to the terms and the provisions of Section 309; provided,
further, that Securities to be purchased are subject to proration in the event
the Excess Proceeds are less than the aggregate Offered Price of all Securities
tendered for purchase, with such adjustments as may be appropriate by the
Trustee so that only Securities in denominations of E 1,000 or integral
multiples thereof, shall be purchased. If any Security tendered for purchase
shall not be so paid upon surrender thereof by deposit of funds with the Trustee
or a Paying Agent in accordance with paragraph (i) above, the principal thereof
(and premium and Additional Amounts, if any, thereon) shall, until paid, bear
interest from the Offer Date at the rate borne by such Security. Any Security
that is to be purchased only in part shall be surrendered to a Paying Agent at
the office of such Paying Agent (with, if the Issuer, the Security Registrar or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuer and the Security Registrar or the Trustee
duly executed by, the Holder thereof or such Holder's attorney duly authorized
in writing), and the Issuer shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, one or more new
Securities of any authorized denomination as requested by such Holder in an
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Security so surrendered that is not purchased. The
Issuer shall publicly announce the results of the Offer on or as soon as
practicable after the Offer Date.
Section 1013. Limitation on Issuance of Guarantees of
Indebtedness by Restricted Subsidiaries.
(a) The Company will not cause or permit any Restricted
Subsidiary (which is not a Guarantor), directly or indirectly, to guarantee,
assume or in any other manner become liable with respect to any Indebtedness of
the Company or any Restricted Subsidiary which is a Guarantor unless such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Guarantee of the Securities on the
same terms as the guarantee of such Indebtedness except that (A) no guarantee of
the Securities or any Guarantee shall be required (except as provided by
paragraph (b) below) as a result of any Indebtedness that is senior in right of
payment to the Securities and any Guarantee, (B) such guarantee need not be
secured unless required pursuant to Section 1011 and (C) if such Indebtedness is
by its terms expressly subordinated to the Securities or any Guarantee, any such
assumption, guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated to such Restricted
Subsidiary's Guarantee of the Securities at least to the same extent as such
Indebtedness is subordinated to the Securities or any other Guarantee.
(b) The Company shall cause all direct Restricted
Subsidiaries of the Company to provide a Senior Guarantee and all direct
Restricted Subsidiaries of Lucite International Investment Limited, and, other
than Xxxxx and the Issuer, their direct Restricted Subsidiaries (but not the
Subsidiaries of such Restricted Subsidiaries) to provide a Subordinated
Guarantee.
(c) Notwithstanding the foregoing, any Guarantee (other
than a Guarantee required by clause (b) above) by a Restricted Subsidiary of the
Securities may provide by its terms that it shall be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Capital Stock held
by the Company and other Restricted Subsidiaries in, or all or substantially all
the assets of, such Restricted Subsidiary and such Restricted Subsidiary is
released from all guarantees, if any, by it of other Indebtedness of the Company
or any Restricted Subsidiaries and (ii) (with respect
88
to any Guarantees created after May 4, 2000) the release by the holders of the
Indebtedness of the Company described in clause (a) above of their security
interest or their guarantee by such Restricted Subsidiary at such time as (A) no
other Indebtedness of the Company or any other Restricted Subsidiary has been
secured or guaranteed by such Restricted Subsidiary, as the case may be, or (B)
the holders of all such other Indebtedness which is secured or guaranteed by
such Restricted Subsidiary also release their security interest in or guarantee
by such Restricted Subsidiary.
Section 1014. Purchase of Securities upon a Change of Control.
(a) If a Change of Control shall occur at any time or at
the option of the Issuer or the Company, prior to such Change of Control but
after the public announcement thereof, then each Holder shall have the right to
require that the Issuer or the Company purchase such Holder's Securities in
whole or in part in integral multiples of E1,000, at a purchase price (the
"Change of Control Purchase Price") in cash in an amount equal to 101% of the
principal amount of such Securities, plus any Additional Amounts and accrued and
unpaid interest, if any, to the date of purchase (the "Change of Control
Purchase Date") (subject to, with respect to Definitive Registered Securities,
the rights of Holders of record on Regular Record Dates or Special Record Dates
to receive interest due on an Interest Payment Date), pursuant to the offer
described below in this Section 1014 (the "Change of Control Offer") and in
accordance with the other procedures set forth in subsections (b), (c), (d) and
(e) of this Section 1014. No such in part purchase shall reduce the principal
amount of the Securities held by any Holder to below E1,000.
(b) Within 30 days of any Change of Control, the Issuer
or the Company shall notify the Trustee thereof and give notice in the manner
provided in this Indenture (a "Change of Control Purchase Notice") of such
Change of Control to each Holder in the manner provided in this Indenture
stating, among other things:
(1) that a Change of Control has occurred, the
date of such event, and that such Holder has the right to require the Company to
repurchase such Holder's Securities at the Change of Control Purchase Price;
(2) the circumstances and relevant facts
regarding such Change of Control;
(3) (i) a description of material developments,
if any, in the Company's business subsequent to the date of the latest filings
by the Company with the Commission and (ii) such other information, if any,
concerning the business of the Company which the Company in good faith believes
will enable such Holders to make an informed investment decision regarding the
Change of Control Offer;
(4) that the Change of Control Offer is being
made pursuant to this Section 1014 and that all Securities properly tendered
pursuant to the Change of Control Offer will be accepted for payment at the
Change of Control Purchase Price;
(5) the Change of Control Purchase Date, which
shall be a Business Day no earlier than 30 days nor later than 60 days from the
date such notice is mailed, or such later date as is necessary to comply with
requirements under the Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent
and the offices or agencies referred to in Section 1002;
89
(8) that Securities must be surrendered on or
prior to the Change of Control Purchase Date to the Paying Agent at the office
of the Paying Agent or to an office or agency referred to in Section 1002 to
collect payment;
(9) that the Change of Control Purchase Price
for any Security which has been properly tendered and not withdrawn will be paid
promptly following the Change of Control Offer Purchase Date;
(10) the procedures that a Holder must follow to
accept a Change of Control Offer or to withdraw such acceptance;
(11) that any Security not tendered will continue
to accrue interest; and
(12) that, unless the Issuer or the Company
defaults in the payment of the Change of Control Purchase Price, any Securities
accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Change of Control Purchase Date.
The Change of Control Offer shall be conditional on the
occurrence of the Change of Control.
So long as the Securities may be listed on the Luxembourg Stock Exchange and the
rules of the Luxembourg Stock Exchange so require, the Issuer or the Company
shall cause to be published in a leading daily newspaper of general circulation
in Luxembourg (which is expected to be the Luxemburger Wort) the notice
described above.
(c) Upon receipt by the Issuer of the proper tender of
Securities, the Holder of the Security in respect of which such proper tender
was made shall (unless the tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Upon surrender of any such Security for purchase
in accordance with the foregoing provisions, such Security shall be paid by the
Issuer at the Change of Control Purchase Price; provided, however, in the case
of Definitive Registered Securities that installments of interest whose Stated
Maturity is on or prior to the Change of Control Purchase Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Regular Record Dates according to the terms
and the provisions of Section 309. If any Security tendered for purchase in
accordance with the provisions of this Section 1014 shall not be so paid upon
surrender thereof, the principal thereof (and premium, if any, thereon) shall,
until paid, bear interest from the Change of Control Purchase Date at the rate
borne by such Security. Holders electing to have Securities purchased will be
required to surrender such Securities to the Paying Agent at the address
specified in the Change of Control Purchase Notice at least one Business Day
prior to the Change of Control Purchase Date. Any Security that is to be
purchased only in part shall be surrendered to a Paying Agent at the office of
such Paying Agent (with, if the Issuer, the Security Registrar or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar or the Trustee, as the
case may be, duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
one or more new Securities of any authorized denomination as requested by such
Holder in an aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
purchased.
(d) The Issuer shall (i) not later than the Change of
Control Purchase Date, accept for payment Securities or portions thereof
tendered pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m.
(London time) on the Change of Control Purchase Date,
90
deposit with the Trustee or with a Paying Agent an amount of money in same day
funds sufficient to pay the aggregate Change of Control Purchase Price of all
the Securities or portions thereof which are to be purchased as of the Change of
Control Purchase Date and (iii) not later than 10:00 a.m. (London time) on the
Change of Control Purchase Date, deliver to the Paying Agent an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Issuer. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Change of Control
Purchase Price of the Securities purchased from each such Holder, and the Issuer
shall execute and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Security equal in principal amount to any unpurchased portion
of the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Paying Agent at the Issuer's expense to the Holder
thereof. The Issuer and the Company will publicly announce the results of the
Change of Control Offer on the Change of Control Purchase Date. For purposes of
this Section 1014, the Company shall choose a Paying Agent which shall not be
the Issuer.
(e) A tender made in response to a Change of Control
Purchase Notice may be withdrawn if the Issuer receives, not later than one
Business Day prior to the Change of Control Purchase Date, a telegram, telex,
facsimile transmission or letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number (if applicable) of
the Security in respect of which such notice of withdrawal is being submitted;
(3) the principal amount of the Security (which
shall beE1,000 or an integral multiple thereof) delivered for purchase by
the Holder as to which such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing
his election to have such principal amount of such Security purchased; and
(5) the principal amount, if any, of such
Security (which shall be E1,000 or an integral multiple thereof) that
remains subject to the original Change of Control Purchase Notice and that has
been or will be delivered for purchase by the Issuer.
(f) Subject to applicable escheat laws, the Trustee and
the Paying Agent shall return to the Issuer any cash that remains unclaimed,
together with interest or dividends, if any, thereon, held by them for the
payment of the Change of Control Purchase Price; provided, however, that, (x) to
the extent that the aggregate amount of cash deposited by the Issuer pursuant to
clause (ii) of paragraph (d) above exceeds the aggregate Change of Control
Purchase Price of the Securities or portions thereof to be purchased, then the
Trustee shall hold such excess for the Issuer and (y) unless otherwise directed
by the Issuer in writing, promptly after the Business Day following the Change
of Control Purchase Date the Trustee shall return any such excess to the Issuer
together with interest, if any, thereon.
(g) The Issuer and the Company will comply with the
applicable tender offer rules, including Rule 14e-1 under the Exchange Act, and
any other applicable securities laws or regulations (including those of the U.S.
and the U.K.) in connection with a Change of Control Offer. To the extent that
the provisions of any applicable securities laws or regulations conflict with
the provisions of this Section 1014 (other than the obligation to make an Offer
pursuant to this Section 1014), the Issuer and the Company, as the case may be,
will comply with the securities laws and regulations and will not be deemed to
have breached its obligations described in this Section 1014 by virtue thereof.
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Section 1015. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not cause or permit any
Restricted Subsidiary to, directly or indirectly, enter into any sale and
leaseback transaction (other than with the Company or any Restricted Subsidiary)
with respect to any property or assets (whether now owned or hereafter
acquired), except for a sale and leaseback transaction not exceeding 365 days,
unless (i) the sale or transfer of such property or assets to be leased is
treated as an Asset Sale and complies with Section 1012 and (ii) the Company or
such Restricted Subsidiary would be entitled under Section 1008 to incur any
Indebtedness (with the lease obligations being treated as Indebtedness for
purposes of ascertaining compliance with this covenant) in respect of such sale
and leaseback transaction.
Section 1016. Limitation on Subsidiary Capital Stock.
The Company will not permit (a) any Restricted Subsidiary to
issue, sell or transfer any Capital Stock, except for (i) Capital Stock issued
or sold to, held by or transferred to the Company or a Restricted Subsidiary and
(ii) any sale made in compliance with Section 1012 and immediately after giving
effect to such issuance or sale, such Restricted Subsidiary either continues to
be a Restricted Subsidiary or if such Restricted Subsidiary would no longer be a
Restricted Subsidiary, then the Investment of the Company or Restricted
Subsidiary in such Person (after giving effect to such issuance or sale) would
have been permitted to be made under Section 1009 as if made on the date of such
issuance or sale. The foregoing restriction shall not apply to the ownership by
directors of directors' qualifying shares of Capital Stock of any Restricted
Subsidiary to the extent required by applicable law. Notwithstanding the
foregoing, the Company may sell all the Capital Stock of a Restricted Subsidiary
as long as the Company complies with the terms of Section 1012.
Section 1017. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distribution on its Capital Stock or any other interest or participation in or
measured by its profits to the Company or any Restricted Subsidiary (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
any loans or advances to the Company or any other Restricted Subsidiary or (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary, except for:
(i) any encumbrance or restriction pursuant to
any agreement in effect on May 4, 2000;
(ii) any encumbrance or restriction with respect
to a Restricted Subsidiary that was not a Restricted Subsidiary on May 4, 2000,
in existence at the time such Person becomes a Restricted Subsidiary and not
incurred in connection with, or in contemplation of, such Person becoming a
Restricted Subsidiary, provided that such encumbrances and restrictions are not
applicable to the Company or any Restricted Subsidiary or the properties or
assets of the Company or any Restricted Subsidiary other than such Subsidiary
which is becoming a Restricted Subsidiary;
(iii) any encumbrance or restriction under this
Indenture, the 2000 Indenture, the Securities and the Existing Securities;
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(iv) any encumbrance or restriction under
Purchase Money Obligations and Capital Lease Obligations in the ordinary course
of business that impose restrictions with respect only to the property the
subject thereof of the nature described in clause (ii) on the property so
acquired;
(v) any encumbrance or restriction (A) that
restricts in a customary manner the subletting, assignment or transfer of any
property or asset that is subject to a lease, license or similar contract, (B)
by virtue of any transfer of, agreement to transfer, option or right with
respect to or Lien on, any property or assets of the Company or any Restricted
Subsidiary not otherwise prohibited by this Indenture or (C) contained in
security agreements or mortgages securing Indebtedness to the extent such
encumbrance or restriction restricts the transfer of the property subject to
such security agreements or mortgages;
(vi) contracts for the sale of assets, including
any restriction with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or substantially all
of the Capital Stock or assets of such Restricted Subsidiary pending the closing
of such sale or disposition;
(vii) restrictions on cash or other deposits or
net worth imposed by leases or other agreements entered into in the ordinary
course of business;
(viii) any customary encumbrances or restrictions
created under any agreement with respect to Indebtedness permitted to be
incurred subsequent to May 4, 2000 pursuant to the provisions of Section 1008 or
Section 1008 of the 2000 Indenture (which encumbrances and restrictions are not
more restrictive than those contained in the Senior Credit Facilities on May 4,
2000);
(ix) any encumbrances or restrictions required by
any governmental, local or regulatory authority having jurisdiction over the
Company or any of its Restricted Subsidiaries or any of their businesses in
connection with any development grant made or other assistance provided to the
Company or any of its Restricted Subsidiaries by such governmental authority;
(x) with respect to clauses (b), (c) and (d)
customary provisions in joint venture agreements; and
(xi) any encumbrance or restriction existing
under any agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (i) through
(x), or in this clause (xi), provided that the terms and conditions of any such
encumbrances or restrictions are no more restrictive in any material respect
than those under or pursuant to the agreement evidencing the Indebtedness so
extended, renewed, refinanced or replaced.
Section 1018. Limitations on Unrestricted Subsidiaries.
The Company may designate after the Issue Date any Subsidiary
(other than a Guarantor) as an "Unrestricted Subsidiary" under this Indenture (a
"Designation") only if:
(a) no Default shall have occurred and be continuing at
the time of or after giving effect to such Designation;
(b) the Company would be permitted to make an Investment
at the time of Designation (assuming the effectiveness of such Designation)
pursuant to Section 1009 in an amount (the "Designation Amount") equal to the
greater of (1) the net book value of the Company's interest in such Subsidiary
calculated in accordance with GAAP or (2) the Fair
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Market Value of the Company's interest in such Subsidiary as determined in good
faith by the Company's Board of Directors;
(c) the Company would be permitted under this Indenture
to incur L1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 1008 at the time of such Designation (assuming
the effectiveness of such Designation);
(d) such Unrestricted Subsidiary does not own any Capital
Stock in any Restricted Subsidiary which is not simultaneously being designated
an Unrestricted Subsidiary;
(e) such Unrestricted Subsidiary is not liable, directly
or indirectly, with respect to any Indebtedness other than Unrestricted
Subsidiary Indebtedness, provided that an Unrestricted Subsidiary may provide a
Guarantee for the Securities; and
(f) such Unrestricted Subsidiary is not a party to any
agreement, contract, arrangement or understanding at such time with the Company
or any Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are not substantially less favorable to the Company
or such Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company or, in the event such condition is
not satisfied, the value of such agreement, contract, arrangement or
understanding to such Unrestricted Subsidiary shall be deemed a Restricted
Payment.
In the event of any such Designation, the Company shall be
deemed to have made an Investment constituting a Restricted Payment pursuant to
Section 1009 for all purposes of this Indenture in the Designation Amount.
The Company shall not and shall not cause or permit any
Restricted Subsidiary to at any time (x) provide credit support for, or subject
any of its property or assets (other than the Capital Stock of any Unrestricted
Subsidiary) to the satisfaction of, any Indebtedness of any Unrestricted
Subsidiary (including any undertaking, agreement or instrument evidencing such
Indebtedness) or (y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary, except, in the case of clause (x) or (y), to the
extent permitted under Section 1009. For purposes of the foregoing, the
Designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall
be deemed to be the Designation of all of the Subsidiaries of such Subsidiary as
Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at
the time of and after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted
Subsidiary outstanding immediately following such Revocation would, if incurred
at such time, have been permitted to be incurred for all purposes of this
Indenture; and
(c) unless such redesignated Subsidiary shall not have
any Indebtedness outstanding (other than Indebtedness that would be Permitted
Indebtedness), immediately after giving effect to such proposed Revocation, and
after giving pro forma effect to the incurrence of any such Indebtedness of such
redesignated Subsidiary as if such Indebtedness was incurred on the date of the
Revocation, the Company could incur L1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to the covenant described in
Section 1008.
All Designations and Revocations must be evidenced by a Board
Resolution of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
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Section 1019. Limitation on Activities of the Issuer and
Xxxxx.
(a) The Company shall cause the Issuer to remain a
Restricted Subsidiary and will not permit the Issuer to consolidate with or
merge with or into any other Person, provided that nothing in this Indenture
shall limit a voluntary dissolution of the Issuer or merger of the Issuer into
the Company or a Senior Guarantor solely for the purposes of permitting the
Company or a Senior Guarantor to assume all obligations in respect of the
Securities as if it were the direct obligor with respect thereto and in which
all assets of the Issuer are transferred to the Company or a Senior Guarantor
and no material payment or distribution is made to creditors; provided further,
however, that any such transaction shall not be permitted unless, at the time of
such transaction and after giving effect thereto:
(i) if the Company or another Senior Guarantor
is the successor to the Issuer as a result of such transaction, the Company or
such Senior Guarantor expressly assumes, by a supplemental indenture, in a form
reasonably satisfactory to the Trustee, all the obligations of the Issuer under
the Securities and this Indenture, and the Securities and this Indenture remain
in full force and effect as so supplemented;
(ii) at the time of the transaction, each
Guarantor will have by supplemental indenture confirmed its Guarantee; and
(iii) at the time of the transaction, the Company
will have delivered, or caused to be delivered, to the Trustee, at the request
of the Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Independent Counsel, each to the effect
that such transaction and the supplemental indenture in respect thereof comply
with this Indenture and that all conditions precedent herein provided for
relating to such transaction have been complied with.
(b) Notwithstanding anything contained in this Indenture
to the contrary, the Issuer will not engage in any business activity or
undertake any other activity, except (i) any activity relating to (A) the
offering, sale or issuance of the Securities or other Indebtedness permitted by
this Indenture or (B) the lending or otherwise advancing the proceeds thereof to
the Company or any Restricted Subsidiary and (C) any other activities in
connection therewith and (ii) any activity not prohibited by the 2000 Indenture
as of May 4, 2000.
(c) The Company and its Restricted Subsidiaries shall not
transfer any assets, other than cash, to Xxxxx unless Xxxxx becomes a
Subordinated Guarantor.
Section 1020. Listing.
The Issuer will use its reasonable efforts to obtain the
listing of the Securities on the Luxembourg Stock Exchange as promptly as
practicable and to maintain the listing of the Securities on the Luxembourg
Stock Exchange or another Recognized Stock Exchange.
Section 1021. Limitation on Senior Subordinated Indebtedness
for Subordinated Guarantors.
The Company will not permit or cause any Subordinated
Guarantor to, directly or indirectly, create, incur, issue, assume, guarantee or
otherwise in any manner become directly or indirectly liable for or with respect
to or otherwise permit to exist any Indebtedness (other than Indebtedness
incurred pursuant to clause (v) of the second paragraph of Section 1008) that is
subordinate in right of payment to any Indebtedness of such Subordinated
Guarantor unless such Indebtedness is also pari passu with the Guarantee of such
Subordinated Guarantor or subordinated in right of payment to such Guarantee at
least to the same extent as such Guarantee
95
is subordinated in right of payment to the Guarantor Senior Indebtedness as set
forth in this Indenture.
Section 1022. Payment of Additional Amounts.
All payments made by the Issuer and the Guarantors, if any,
under or with respect to the Securities and any Guarantees will be made free and
clear of and without withholding or deduction for or on account of any present
or future taxes, duties, levies, imposts, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of any jurisdiction in which
the Issuer or any Guarantor is organized, engaged in business, resident for tax
purposes or generally subject to tax on a net income basis or from or through
which payment on the Securities is made by the Issuer, any Guarantor or any
paying agent in its capacity as such, or any political subdivision or authority
thereof or therein having power to tax (a "Taxing Authority") and any interest,
penalties and other liabilities with respect thereto (collectively "Taxes"),
unless the Issuer or any Guarantor, as the case may be, is required to withhold
or deduct such Taxes by law or by the relevant Taxing Authority's interpretation
or administration thereof. In the event that the Issuer or any Guarantor is
required to so withhold or deduct any amount for or on account of any such Taxes
from any payment made under or with respect to the Securities or the Guarantees,
as the case may be, the Issuer or such Guarantor, as the case may be, will pay
such additional amounts ("Additional Amounts") as may be necessary so that the
net amount (including Additional Amounts) received by each Holder of Securities
after such withholding or deduction will equal the amount that such Holder would
have received if such Taxes had not been required to be withheld or deducted;
provided that upon the implementation of the Directive, the Issuer and the
Guarantors shall ensure that a Paying Agent is maintained in a member state of
the European Union that is not obliged to withhold or deduct Taxes pursuant to
such Directive; provided further that no Additional Amounts will be payable with
respect to a payment made to a Holder or beneficial owner of Securities to the
extent:
(a) that any such Taxes would not have been so imposed
but for the existence of any present or former connection between such Holder or
beneficial owner and the Taxing Authority imposing such Taxes (other than the
mere receipt of such payment, acquisition, ownership or disposition of such
Securities or the exercise or enforcement of rights under such Securities, the
Guarantees or this Indenture), unless such Taxes were so imposed because the
Securities were not listed on a Recognized Stock Exchange;
(b) of any estate, inheritance, gift, sales, transfer,
personal property or similar Tax imposed with respect to such Securities, except
as otherwise provided herein;
(c) that any such Taxes would not have been so imposed
but for the presentation of such Securities (where presentation is required) for
payment on a date more than 30 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided for,
whichever is later, except to the extent that the beneficiary or Holder thereof
would have been entitled to Additional Amounts had the Securities been presented
for payment on any date during such 30 day period;
(d) that such Holder or beneficial owner would not be
liable for or subject to such withholding or deduction of such Taxes but for the
failure to make a valid declaration of non-residence or other similar claim for
exemption or to provide information concerning nationality, residence or
connection with the relevant Taxing Authority if (x) the making of such
declaration or claim or the provision of such information is required or imposed
by statute, treaty, regulation, ruling or administrative practice of the
relevant Taxing Authority as a precondition to an exemption from, or reduction
in, such Taxes, and (y) at least 60 days prior to the first payment
96
date with respect to which the Issuer or any Guarantor shall apply this clause
(d), the Issuer or such Guarantor shall have notified all Holders of Securities
in writing that they shall be required to provide such declaration, claim or
information, unless such Holder or beneficial owner would be liable or subject
to such withholding or deduction of such Taxes because the Securities were not
listed on a Recognized Stock Exchange; or
(e) that any such withholding or deduction imposed on a
payment to an individual are required to be made pursuant to the Directive or
any law implementing or complying with, or introduced in order to conform to the
Directive; or
(f) that any such Taxes are imposed in connection with
Securities presented for payment by or on behalf of a Holder or beneficial owner
who would have been able to avoid such Tax by presenting the relevant Security
to another paying agent in a member state of the European Union.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Security been the Holder of the Security, it would
not have been entitled to payment of Additional Amounts by reason of clauses (a)
to (f) inclusive above. In addition, Additional Amounts will not be payable with
respect to any Taxes that are payable otherwise than by deduction or withholding
from payments of, or in respect of, principal of, or any interest on, the
Securities.
The Issuer and each Guarantor, as applicable, will also (i)
make such withholding or deduction of Taxes and (ii) remit the full amount of
Taxes so deducted or withheld to the relevant Taxing Authority in accordance
with all applicable laws. The Issuer and each Guarantor, as applicable, will use
their reasonable best efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority imposing such Taxes. The Issuer or such Guarantor, as the case may be,
will, upon request, make available to the Holders of the Securities, within 60
days after the date the payment of any Taxes so deducted or withheld is due
pursuant to applicable law, certified copies of tax receipts evidencing such
payment by the Issuer or such Guarantor or if, notwithstanding the Issuer's or
such Guarantor's efforts to obtain such receipts, the same are not obtainable,
other evidence of such payment by the Issuer or such Guarantor.
At least 30 days prior to each date on which any payment under
or with respect to the Securities is due and payable, if the Issuer or any
Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Issuer or such Guarantor will deliver to the Trustee an Officers'
Certificate stating the fact that such Additional Amounts will be payable and
the amounts so payable and setting forth such other information as is necessary
to enable such Trustee to pay such Additional Amounts to Holders of the
Securities on the payment date.
The foregoing provisions shall survive any termination,
defeasance or discharge of this Indenture and shall apply mutatis mutandis to
any jurisdiction in which any successor Person to the Issuer or any Guarantor,
as the case may be, is organized, engaged in business, resident for tax
purposes, or otherwise subject to taxation on a net income basis or any
political subdivisions or taxing authority or agency thereof or therein.
In addition, the Issuer or any Guarantor, as the case may be,
will pay any present or future stamp, issue, registration, documentation, court
excise or property taxes or other similar taxes, charges and duties, including
interest, penalties and Additional Amounts with respect thereto, imposed by any
Taxing Authority, the United States or any jurisdiction in which a paying agent
is located or any political subdivision or taxing authority of or in the
foregoing in respect of the execution, issue, delivery, registration, redemption
or retirement of, or receipt of payments
97
with respect to, the Securities or any other document or instrument referred to
thereunder and any such taxes, charges or duties imposed by any jurisdiction as
a result of, or in connection with, the enforcement of the Securities or any
other such document or instrument following the occurrence of any Event of
Default with respect to the Securities.
Whenever in this Indenture or the Securities there is
mentioned, in any context, the payment of principal (and premiums, if any),
redemption price, interest or any other amount payable under or with respect to
any Security, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to this Section 1022.
Section 1023. Provision of Financial Statements.
(a) Whether or not the Company is subject to Section
13(a) or 15(d) of the Exchange Act, the Company (or, in the absence of the
Company, the Issuer) will, to the extent permitted under the Exchange Act, file
with the Commission (unless the Commission will not accept such filing) the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13(a) or
15(d) if the Company were so subject, provided that quarterly filings (which
shall contain substantially the same information as required by a Form 10-Q and
reconciliations of net income and shareholders' equity to U.S. GAAP) shall be
filed with the Commission within 60 days following the end of the first three
fiscal quarters of each fiscal year and a Form 20-F shall be filed with the
Commission within 120 days following the end of each fiscal year (each of the
above, the "Required Filing Date"), provided, further that any such annual
reports and quarterly reports shall contain: earnings before interest, taxes,
depreciation and amortization; capital expenditures; depreciation and
amortization; and income (loss) from operations in U.S. GAAP and provided,
further, that the Company should file (as promptly as practicable) on Form 6-K
information required on Form 8-K if the Company were required to file such
reports.
(b) The Company (or, in the absence of the Company, the
Issuer) will also in any event (x) within 15 days of each Required Filing Date
file with the Trustee copies of such annual reports, quarterly reports and other
documents which the Company (or, in the absence of the Company, the Issuer) is
required to file with the Commission pursuant to the preceding sentence if
permitted to make such filings and (y) if filing such documents with the
Commission is not permitted under the Exchange Act, promptly upon written
request, supply copies of such documents to any prospective Holder at the
Company's or the Issuer's cost.
(c) If any Guarantor's financial statements would be
required to be included in the financial statements filed or delivered pursuant
to this Indenture if the Company (or, in the absence of the Company, the Issuer)
were subject to Section 13(a) or 15(d) of the Exchange Act, the Company or the
Issuer shall include such Guarantor's financial statements in any filing or
delivery pursuant to this Indenture.
(d) The Issuer and the Company will also make any of the
foregoing information available during normal business hours at the offices of
the listing agent in Luxembourg if and so long as the Securities are listed on
the Luxembourg Stock Exchange and the rules of the stock exchange so require.
Section 1024. Statement by Officers as to Default.
(a) The Issuer and the Company will deliver to the
Trustee, on or before a date not more than 120 days after the end of each fiscal
year of the Company ending after the date hereof, a written statement signed by
two executive officers of the Issuer, one of whom shall be
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the principal executive officer, principal financial officer or principal
accounting officer of the Issuer, as to compliance herewith, including whether
or not, after a review of the activities of the Issuer and the Guarantors during
such year and of the Issuer 's and each Guarantor's performance under this
Indenture, to the knowledge, based on such review, of the signers thereof, the
Issuer and each Guarantor have fulfilled all of their respective obligations and
are in compliance with all conditions and covenants under this Indenture
throughout such year and, if there has been a Default specifying each Default
and the nature and status thereof and any actions being taken by the Issuer and
the Company with respect thereto.
(b) When any Default or Event of Default has occurred and
is continuing, the Issuer shall promptly, and in any event within 5 Business
Days after becoming aware of such Default or Event of Default, deliver to the
Trustee by registered or certified mail or facsimile transmission followed by an
originally executed copy of an Officers' Certificate specifying such Default,
Event of Default, notice or other action, the status thereof and what actions
the Issuer is taking or proposes to take with respect thereto, within five
Business Days after the occurrence of such Default or Event of Default.
Section 1025. Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with
any covenant or condition set forth in Section 801 and Sections 1006 through
1011, 1013, 1015 through 1019, 1021 and 1023, if, before or after the time for
such compliance, the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding shall, by Act of such Holders,
waive such compliance in such instance with such covenant or provision, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Issuer and the Guarantors and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
The Securities will be subject to redemption at any time on or
after May 15, 2005, at the option of the Issuer, in whole or in part, on not
less than 30 nor more than 60 days' prior notice given in the manner provided in
this Indenture in amounts of E1,000 or an integral multiple thereof at the
following redemption prices (expressed as percentages of the principal amount),
if redeemed during the 12-month period beginning May 15, of the years indicated
below:
Year Redemption Price
---- ----------------
2005 105.125%
2006 103.417%
2007 101.708%
and thereafter at 100% of the principal amount thereof, in each case, together
with any Additional Amounts and accrued and unpaid interest, if any, to the
redemption date (subject
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to the rights of Holders of record on Regular Record Dates and Special Record
Dates to receive interest due on an Interest Payment Date).
Section 1102. Redemption Upon Changes in Withholding Taxes.
The Securities may also be redeemed, as a whole but not in
part, at the election of the Issuer, upon not less than 30 nor more than 60 days
notice given in the manner provided in this Indenture (which notice shall be
irrevocable), at a redemption price equal to 100% of the principal amount
thereof, together with accrued and unpaid interest thereon to the redemption
date and Additional Amounts, if any, if as a result of (i) any amendment to, or
change in, the laws, treaties, rulings or regulations of any jurisdiction in
which the Issuer is organized, engaged in business, resident for tax purposes or
generally subject to tax on a net income basis or any political subdivision or
authority thereof or therein having power to tax or any change in the official
application or official interpretation of such laws, treaties, rulings or
regulations which amendment or change becomes effective after the Issue Date, or
(ii) with respect to a Guarantor that is organized under the laws of the United
Kingdom (a "UK Guarantor"), any amendment to, or change in, the laws, treaties,
rulings or regulations of the United Kingdom or any political subdivision or
authority thereof or therein having power to tax or any change in the official
application or official interpretation of such laws, treaties, rulings or
regulations which amendment or change becomes effective after the Issue Date,
the Issuer or, only as a result of the occurrence of any event described in
clause (ii), a UK Guarantor, has become or will become obligated to pay
Additional Amounts (as described in Section 1022 hereof) which are more than a
de minimis amount, on the next date on which any amount would be payable with
respect to the Securities, and such obligation cannot be avoided by the use of
reasonable measures available to the Issuer or such UK Guarantor, as the case
may be; provided, however, that (1) no such notice of redemption may be given
earlier than 60 days prior to the earliest date on which the Issuer or such UK
Guarantor, as the case may be, would be obligated to pay such Additional
Amounts, and (2) at the time such notice of redemption is given, such obligation
to pay such Additional Amounts remains in effect. Prior to the giving of any
notice of redemption described in this paragraph, the Issuer shall deliver to
the Trustee (a) a certificate signed by two directors of the Issuer stating that
the obligation to pay such Additional Amounts cannot be avoided by the Issuer or
such UK Guarantor, as the case may be, taking reasonable measures available to
it and (b) a written Opinion of Independent Counsel to the Issuer of recognized
standing to the effect that the Issuer or such UK Guarantor, as the case may be,
has or will become obligated to pay such Additional Amounts as a result of a
change, amendment, official interpretation or application described above and
that the Issuer or such UK Guarantor, as the case may be, cannot avoid the
payment of such Additional Amounts by taking reasonable measures available to
it.
In the event the obligations of the Issuer under the
Securities are assumed pursuant to the terms and conditions of this Indenture by
a Surviving Entity (as defined in Article Eight), such Surviving Entity shall be
entitled to redeem the Securities subject to the terms of the preceding
paragraph, substituting the date of such assumption for the Issue Date.
Section 1103. Applicability of Article.
Redemption of Securities at the election of the Issuer or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Eleven.
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Section 1104. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities pursuant
to Section 1101 shall be evidenced by an Issuer Order and an Officers'
Certificate. In case of any redemption at the election of the Issuer, the Issuer
shall, not less than 45 nor more than 60 days prior to the Redemption Date fixed
by the Issuer (unless a shorter notice period shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of the
principal amount of Securities to be redeemed.
Section 1105. Selection by Trustee of Securities to Be
Redeemed.
If less than all of the Securities are to be redeemed, the
Trustee shall select the Securities or portions thereof to be redeemed in
compliance with the requirements of the principal national security exchange, if
any, on which the Securities are listed, or if the Securities are not so listed,
on a pro rata basis, by lot or by any other method the Trustee shall deem fair
and reasonable; provided that Securities redeemed in part shall be redeemed only
in integral multiples of E1,000; provided, further, that any such
redemption pursuant to Section 1101(b) shall be made on a pro rata basis or on
as nearly a pro rata basis as practicable (subject to the Applicable
Procedures).
The Trustee shall promptly notify the Issuer and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 1106. Notice of Redemption.
Notice of redemption shall be given not less than 30 days nor
more than 60 days prior to the Redemption Date, to each Holder of Securities to
be redeemed in the manner provided in this Indenture.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
principal amount of such Security to be redeemed and that after the Redemption
Date upon surrender of such Security, new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof to be
redeemed, and that (unless the Issuer shall default in payment of the Redemption
Price) interest thereon shall cease to accrue on and after said date;
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(g) the names and addresses of the Paying Agent and the
offices or agencies referred to in Section 1002 where such Securities are to be
surrendered for payment of the Redemption Price;
(h) the CUSIP number, CINS number or ISIN number, if any,
relating to such Securities; and
(i) the procedures that a Holder must follow to surrender
the Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Issuer shall be given by the Issuer or, at the Issuer 's written
request, by the Trustee in the name and at the expense of the Issuer. If the
Issuer elects to give notice of redemption, it shall provide the Trustee with a
certificate stating that such notice has been given in compliance with the
requirements of this Section 1106.
The notice if given in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice or any defect in the
notice to the Holder of any Security designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security.
So long as the Securities may be listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Issuer or the Company shall, when there has been a partial redemption of any of
the Securities (including with respect to a Change of Control or Offer relating
to an Asset Sale), cause to be published in a leading daily newspaper of general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) a
notice specifying the aggregate principal amount of Securities outstanding and a
list of the Securities drawn for redemption but not surrendered and provide
notification of such partial redemption to the Luxembourg Stock Exchange.
Section 1107. Deposit of Redemption Price.
On or prior to any Redemption Date (but no later than 10:00
a.m. (London time) on the Redemption Date), the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Company or any of its Affiliates is
acting as Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in same day funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date or Special
Payment Date) any Additional Amounts and accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date. The Paying Agent
shall promptly mail or deliver to Holders of Securities so redeemed payment in
an amount equal to the Redemption Price of the Securities purchased from each
such Holder. All money, if any, earned on funds held in trust by the Trustee or
any Paying Agent shall be remitted to the Issuer. For purposes of this Section
1107, the Issuer shall choose a Paying Agent which shall not be the Company.
Section 1108. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Holders will be
required to surrender the Securities to be redeemed to the Paying Agent at the
address specified in the notice of redemption at least one Business Day prior to
the Redemption Date. Upon surrender of any such Security for redemption in
accordance with said notice, such Security
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shall be paid by the Issuer at the Redemption Price together with accrued
interest to the Redemption Date; provided, however, in the case of Definitive
Registered Securities that installments of interest whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates and Special Record Dates
according to the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and premium and Additional
Amounts, if any, shall, until paid, bear interest from the Redemption Date at
the rate borne by such Security.
Section 1109. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 (with, if the Issuer, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer, the Security
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Issuer
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed portion of the principal of
the Security so surrendered that is not redeemed or purchased. Upon surrender of
a Global Security if redeemed in part, the Paying Agent shall forward the Global
Security to the Trustee who shall make a notation on Schedule A thereof to
reduce the principal amount equal to the redeemed portion of the Global
Security, provided that the Global Security shall be in an authorized
denomination.
ARTICLE TWELVE
GUARANTEE
Section 1201. Guarantors' Guarantee.
For value received, each of the Guarantors, in accordance with
this Article Twelve and subject to Section 1227 hereof, hereby absolutely,
unconditionally and irrevocably guarantees, jointly and severally, to the
Trustee and the Holders, as if the Guarantors were the principal debtor, the
punctual payment and performance when due of all Indenture Obligations (which
for purposes of this Guarantee shall also be deemed to include all commissions,
fees, charges, costs and other expenses (including reasonable legal fees and
disbursements of one counsel) arising out of or incurred by the Trustee or the
Holders in connection with the enforcement of this Guarantee).
Section 1202. Continuing Guarantee; No Right of Set-Off;
Independent Obligation.
(a) This Guarantee shall be a continuing guarantee of the
payment and performance of all Indenture Obligations and shall remain in full
force and effect until the payment in full of all of the Indenture Obligations
and shall apply to and secure any ultimate balance due or remaining unpaid to
the Trustee or the Holders; and this Guarantee shall not be considered as wholly
or partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in this
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Indenture including those set forth in Article Eight. Without limiting the
generality of the foregoing, each Guarantor's liability shall extend to all
amounts which constitute part of the Indenture Obligations and would be owed by
the Issuer under this Indenture and the Securities but for the fact that they
are unenforceable, reduced, limited, impaired, suspended or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Issuer.
(b) Each Guarantor, jointly and severally, hereby
guarantees that the Indenture Obligations will be paid to the Trustee without
set-off or counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise).
(c) Each Guarantor, jointly and severally, guarantees
that the Indenture Obligations shall be paid strictly in accordance with their
terms regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of the holders of the
Securities.
(d) Each Guarantor's liability to pay or perform or cause
the performance of the Indenture Obligations under this Guarantee shall arise
forthwith after demand for payment or performance by the Trustee has been given
to the Guarantors in the manner prescribed in Section 106 hereof.
(e) Except as provided herein, the provisions of this
Article Twelve cover all agreements between the parties hereto relative to this
Guarantee and none of the parties shall be bound by any representation, warranty
or promise made by any Person relative thereto which is not embodied herein; and
it is specifically acknowledged and agreed that this Guarantee has been
delivered by each Guarantor free of any conditions whatsoever and that no
representations, warranties or promises have been made to any Guarantor
affecting its liabilities hereunder, and that the Trustee shall not be bound by
any representations, warranties or promises now or at any time hereafter made by
the Issuer to any Guarantor.
(f) This Guarantee is a guarantee of payment, performance
and compliance and not of collectibility and is in no way conditioned or
contingent upon any attempt to collect from or enforce performance or compliance
by the Issuer or upon any event or condition whatsoever.
(g) The obligations of the Guarantors set forth herein
constitute the full recourse obligations of the Guarantors enforceable against
them to the full extent of all their assets and properties.
Section 1203. Guarantee Absolute.
The obligations of the Guarantors hereunder are independent of
the obligations of the Issuer under the Securities and this Indenture and a
separate action or actions may be brought and prosecuted against any Guarantor
whether or not an action or proceeding is brought against the Issuer and whether
or not the Issuer is joined in any such action or proceeding. The liability of
the Guarantors hereunder is irrevocable, absolute and unconditional and (to the
extent permitted by law) the liability and obligations of the Guarantors
hereunder shall not be released, discharged, mitigated, waived, impaired or
affected in whole or in part by:
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(a) any defect or lack of validity or enforceability in
respect of any Indebtedness or other obligation of
the Issuer or any other Person under this Indenture
or the Securities, or any agreement or instrument
relating to any of the foregoing;
(b) any grants of time, renewals, extensions,
indulgences, releases, discharges or modifications
which the Trustee or the Holders may extend to, or
make with, the Issuer, any Guarantor or any other
Person, or any change in the time, manner or place of
payment of, or in any other term of, all or any of
the Indenture Obligations, or any other amendment or
waiver of, or any consent to or departure from, this
Indenture or the Securities, including any increase
or decrease in the Indenture Obligations;
(c) the taking of security from the Issuer, any Guarantor
or any other Person, and the release, discharge or
alteration of, or other dealing with, such security;
(d) 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 Indenture
Obligations and the obligations of any Guarantor
hereunder;
(e) the abstention from taking security from the Issuer,
any Guarantor or any other Person or from perfecting,
continuing to keep perfected or taking advantage of
any security;
(f) any loss, diminution of value or lack of
enforceability of any security received from the
Issuer, any Guarantor or any other Person, and
including any other guarantees received by the
Trustee;
(g) any other dealings with the Issuer, any Guarantor or
any other Person, or with any security;
(h) the application by the Holders or the Trustee of all
monies at any time and from time to time received
from the Issuer, any Guarantor or any other Person on
account of any indebtedness and liabilities owing by
the Issuer or any Guarantor to the Trustee or the
Holders, in such manner as the Trustee or the Holders
deems best and the changing of such application in
whole or in part and at any time or from time to
time, or any manner of application of collateral, if
any, or proceeds thereof, to all or any of the
Indenture Obligations, or the manner of sale of any
collateral;
(i) the release or discharge of the Issuer or any
Guarantor of the Securities or of any Person liable
directly as surety or otherwise by operation of law
or otherwise for the Securities, other than an
express release in
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writing given by the Trustee, on behalf of the
Holders, of the liability and obligations of any
Guarantor hereunder;
(j) any change in the name, business, capital structure
or governing instrument of the Issuer or any
Guarantor or any refinancing or restructuring of any
of the Indenture Obligations;
(k) subject to Section 1013(c), the sale of the Issuer's
or any Guarantor's business or any part thereof;
(l) subject to Article Eight and Section 1013(c), any
merger or consolidation, arrangement or
reorganization of the Issuer, any Guarantor, any
Person resulting from the merger or consolidation of
the Issuer or any Guarantor with any other Person or
any other successor to such Person or merged or
consolidated Person or any other change in the
corporate existence, structure or ownership of the
Issuer or any Guarantor;
(m) the insolvency, bankruptcy, liquidation, winding-up,
dissolution, receivership, arrangement, readjustment,
assignment for the benefit of creditors or
distribution of the assets of the Issuer or its
assets or any resulting discharge of any obligations
of the Issuer (whether voluntary or involuntary) or
of any Guarantor (whether voluntary or involuntary)
or the loss of corporate existence;
(n) subject to Section 1216, any arrangement or plan of
reorganization affecting the Issuer or any Guarantor;
(o) any other circumstance (including any statute of
limitations) that might otherwise constitute a
defense available to, or discharge of, the Issuer or
any Guarantor; or
(p) any modification, compromise, settlement or release
by the Trustee, or by operation of law or otherwise,
of the Indenture Obligations or the liability of the
Issuer or any other obligor under the Securities, in
whole or in part, and any refusal of payment by the
Trustee, in whole or in part, from any other obligor
or other Guarantor in connection with any of the
Indenture Obligations, whether or not with notice to,
or further assent by, or any reservation of rights
against, each of the Guarantors.
Section 1204. Right to Demand Full Performance.
In the event of any demand for payment or performance by the
Trustee from any Guarantor hereunder, the Trustee or each of the Holders shall
have the right to demand its full claim and to receive all interest or other
payments in respect thereof until the Indenture Obligations have been paid in
full, and the Guarantors shall continue to be jointly and severally liable
hereunder for any balance which may be owing to the Trustee or the Holders by
the Issuer under this Indenture and the Securities. The retention by the Trustee
or the Holders of any security, prior to the realization by the Trustee or the
Holders of its rights to such security upon foreclosure thereon, shall not, as
between the Trustee and any Guarantor,
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be considered as a purchase of such security, or as payment, satisfaction or
reduction of the Indenture Obligations due to the Trustee or the Holders by the
Issuer or any part thereof.
Section 1205. Waivers.
(a) Each Guarantor hereby expressly waives (to the extent
permitted by law) notice of the acceptance of this Guarantee and notice of the
existence, renewal, extension or the non-performance, non-payment, or
non-observance on the part of the Issuer of any of the terms, covenants,
conditions and provisions of this Indenture or the Securities or any other
notice whatsoever to or upon the Issuer or such Guarantor with respect to the
Indenture Obligations. Each Guarantor hereby acknowledges communication to it of
the terms of this Indenture and the Securities and all of the provisions therein
contained and consents to and approves the same. Each Guarantor hereby expressly
waives (to the extent permitted by law) diligence, presentment, protest and
demand for payment.
(b) Without prejudice to any of the rights or recourses
which the Trustee or the Holders may have against the Issuer, each Guarantor
hereby expressly waives (to the extent permitted by law) any right to require
the Trustee or the Holders to:
(i) initiate or exhaust any rights, remedies or recourse
against the Issuer, any Guarantor or any other
Person;
(ii) value, realize upon, or dispose of any security of
the Issuer or any other Person held by the Trustee or
the Holders; or
(iii) initiate or exhaust any other remedy which the
Trustee or the Holders may have in law or equity;
before requiring or becoming entitled to demand payment from such Guarantor
under this Guarantee.
Section 1206. The Guarantors Remain Obligated in Event the
Issuer Is No Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the Guarantors
that if for any reason the Issuer has no legal existence, is or becomes under no
legal obligation to discharge the Indenture Obligations owing to the Trustee or
the Holders by the Issuer or if any of the Indenture Obligations owing by the
Issuer to the Trustee or the Holders becomes irrecoverable from the Issuer by
operation of law or for any reason whatsoever, this Guarantee and the covenants,
agreements and obligations of the Guarantors contained in this Article Twelve
shall nevertheless be binding upon the Guarantors, as principal debtor, until
such time as all such Indenture Obligations have been paid in full to the
Trustee and all Indenture Obligations owing to the Trustee or the Holders by the
Issuer have been discharged, or such earlier time as Section 402 shall apply to
the Securities and the Guarantors shall be responsible for the payment thereof
to the Trustee or the Holders upon demand.
Section 1207. Fraudulent Conveyance; Subrogation.
(a) Any term or provision of this Guarantee to the
contrary notwithstanding, the aggregate amount of the Indenture Obligations
guaranteed hereunder shall be reduced to the extent necessary to prevent this
Guarantee from violating or becoming
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voidable under applicable law relating to fraudulent conveyance or fraudulent
transfer or similar laws affecting the rights of creditors generally.
(b) Each Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under Bankruptcy Law) or
otherwise by reason of any payment by it pursuant to the provisions of this
Article Twelve.
Section 1208. Guarantee Is in Addition to Other Security.
This Guarantee shall be in addition to and not in substitution
for any other guarantees or other security which the Trustee may now or
hereafter hold in respect of the Indenture Obligations owing to the Trustee or
the Holders by the Issuer and (except as may be required by law) the Trustee
shall be under no obligation to marshal in favor of each of the Guarantors any
other guarantees or other security or any moneys or other assets which the
Trustee may be entitled to receive or upon which the Trustee or the Holders may
have a claim.
Section 1209. Release of Security Interests.
Without limiting the generality of the foregoing and except as
otherwise provided in this Indenture, each Guarantor hereby consents and agrees,
to the fullest extent permitted by applicable law, that the rights of the
Trustee hereunder, and the liability of the Guarantors hereunder, shall not be
affected by any and all releases for any purpose of any collateral, if any, from
the Liens and security interests created by any collateral document and that
this Guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Indenture Obligations is rescinded
or must otherwise be returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Issuer or otherwise, all as though such payment had not
been made.
Section 1210. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or
instituted under this Article Twelve and this Guarantee and no recovery or
judgment in pursuance thereof shall be a bar or defense to any further action or
proceeding which may be brought under this Article Twelve and this Guarantee by
reason of any further default or defaults under this Article Twelve and this
Guarantee or in the payment of any of the Indenture Obligations owing by the
Issuer.
Section 1211. Failure to Exercise Rights Shall Not Operate as
a Waiver; No Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on
the part of the Trustee or the Holders, any right, power, privilege or remedy
under this Article Twelve and this Guarantee shall operate as a waiver thereof,
nor shall any single or partial exercise of any rights, power, privilege or
remedy preclude any other or further exercise thereof, or the exercise of any
other rights, powers, privileges or remedies. The rights and remedies herein
provided for are cumulative and not exclusive of any rights or remedies provided
in law or equity.
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(b) Nothing contained in this Article Twelve shall limit
the right of the Trustee or the Holders to take any action to accelerate the
maturity of the Securities pursuant to Article Five or to pursue any rights or
remedies hereunder or under applicable law.
Section 1212. Trustee's Duties; Notice to Trustee.
Any provision in this Article Twelve or elsewhere in this
Indenture allowing the Trustee to request any information or to take any action
authorized by, or on behalf of any Guarantor, shall be permissive and shall not
be obligatory on the Trustee except as the Holders may direct in accordance with
the provisions of this Indenture or where the failure of the Trustee to request
any such information or to take any such action arises from the Trustee's
negligence, bad faith or willful misconduct.
Section 1213. Successors and Assigns.
All terms, agreements and conditions of this Article Twelve
shall extend to and be binding upon each Guarantor and its successors and
permitted assigns and shall inure to the benefit of and may be enforced by the
Trustee and its successors and assigns; provided, however, that the Guarantors
may not assign any of their rights or obligations hereunder other than in
accordance with Article Eight.
Section 1214. Release of Guarantee.
(a) Concurrently with the payment in full of all of the
Indenture Obligations, the Guarantors shall be released from and relieved of
their obligations under this Article Twelve. The Guarantee may also be released
in accordance with Article Eight or Section 1013(c). Upon the delivery by the
Issuer to the Trustee of an Officers' Certificate and an Opinion of Counsel to
the effect that the payment or transaction giving rise to the release of this
Guarantee was made by the Issuer in accordance with the provisions of this
Indenture and the Securities, the Trustee shall execute any documents reasonably
required in order to evidence the release of the Guarantors from their
obligations under this Guarantee. If any of the Indenture Obligations are
revived and reinstated after the termination of this Guarantee, then all of the
obligations of the Guarantors under this Guarantee shall be revived and
reinstated as if this Guarantee had not been terminated until such time as the
Indenture Obligations are paid in full, and each Guarantor shall enter into an
amendment to this Guarantee evidencing such revival and reinstatement.
(b) If a Subordinated Guarantor is the subject of a
disposal following an Event of Default, the Subordinated Guarantee given by such
Subordinated Guarantor and all liabilities (actual or contingent) thereunder are
to be released on notice by the senior agent under the Bank Credit Agreement to
the Trustee to enable such Subordinated Guarantor to be disposed of to the
relevant purchaser free of any liability to the Holders. Any such release of a
Subordinated Guarantee will only be made if any corresponding guarantee of the
lenders under the Bank Credit Agreement and all other obligations for or in
respect of Designated Senior Debt or such Subordinated Guarantor are also
released at the time of the relevant disposal and provided that such release is
made in accordance with Clause 14.2 (Sales by Security Agent) of the
Intercreditor Deed attached hereto as Exhibit C.
Section 1215. Execution of Guarantee.
To evidence the Guarantee, each Guarantor hereby agrees to
execute the guarantee substantially in the form set forth in Section 204, to be
endorsed on each Security
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authenticated and delivered by the Trustee and that this Indenture shall be
executed on behalf of each Guarantor by its Chairman of the Board, its
President, its Chief Executive Officer, Chief Operating Officer or one of its
Vice Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Section 1216. Subordinated Guarantee Obligations Subordinated
to Designated Senior Debt.
Each Subordinated Guarantor covenants and agrees, and each
Holder of a Security, by its acceptance thereof, likewise covenants and agrees
that, to the extent and in the manner hereinafter set forth in this Article
Twelve, the Indebtedness represented by the Subordinated Guarantees and the
payment of the principal of premium, if any, and interest on each and all of the
Subordinated Guarantees and all other Indenture Obligations in respect of a
Subordinated Guarantor are hereby expressly made subordinated and subject in
right of payment as provided in this Article Twelve to the prior payment in
full, in cash, or in any other form as acceptable to the holders of the
Designated Senior Debt, of Guarantor Senior Indebtedness.
This Article Twelve shall constitute a continuing offer to all
persons who, in reliance upon such provisions, become holders of, or continue to
hold Guarantor Senior Indebtedness and such provisions are made for the benefit
of the holders of Guarantor Senior Indebtedness and such holders are made
obligees hereunder and they or each of them may enforce such provisions.
Section 1217. Suspension of Payment When Designated Senior
Debt is in Default.
(a) Unless Section 1218 shall be applicable, upon the
occurrence of any default in the payment of principal of, premium, if any, or
interest, on any Designated Senior Debt (a "Payment Default") no payment (other
than any payments previously made under Article Four of this Indenture) or
distribution of any assets of a Subordinated Guarantor of any kind or character
(excluding Permitted Junior Securities) shall be made by such Subordinated
Guarantor on account of principal of, premium, if any, or interest on, the
Securities or any other Indenture Obligations or on account of the purchase,
redemption, defeasance (whether or not under Article Four of this Indenture) or
other acquisition of or in respect of the Securities unless and until such
Payment Default shall have been cured or waived or shall have ceased to exist or
the Designated Senior Debt with respect to which such Payment Default shall have
occurred shall have been discharged or paid in full in cash or in any other form
as acceptable to the holders of Designated Senior Debt, after which such
Subordinated Guarantor shall resume making any and all required payments in
respect of the Securities, including any missed payments.
(b) Unless Section 1218 shall be applicable, upon (1) the
occurrence of any event (other than a Payment Default) the occurrence of which
entitles one or more persons to accelerate the maturity of any Designated Senior
Debt (a "Non-payment Default") and (2) receipt by the Trustee and the
Subordinated Guarantor from the security agent or any representative selected by
a majority of the Designated Senior Debt (the "Senior Representative") of
written notice of such occurrence, no payment (other than any payments
previously made under the Article Four of this Indenture) or distribution of any
assets of a Subordinated Guarantor of any kind or character (excluding Permitted
Junior Securities) shall be made by such Subordinated Guarantor on account of
any principal of, premium, if any, or interest on, the Securities or any other
Indenture Obligations or on account of the purchase, redemption, defeasance or
other acquisition of or in respect of Securities for a period ("Payment Blockage
Period") commencing
110
on the date of receipt by the Trustee of such notice unless and until the
earliest of (subject to any blockage of payments that may then or thereafter be
in effect under subsection (a) of this Section 1217) (x) 179 days having elapsed
since receipt of such written notice by the Trustee (provided any Designated
Senior Debt as to which notice was given shall theretofore have not been
accelerated), (y) the date such Non-payment Default and all other Non-payment
Defaults as to which notice is also given after such period is initiated shall
have been cured or waived or shall have ceased to exist or the Designated Senior
Debt related thereto shall have been discharged or paid in full in cash or in
any other form as acceptable to the holder of Designated Senior Debt, or (z) the
date on which such Payment Blockage Period (and all Non-payment Defaults as to
which notice is given after such Payment Blockage Period is initiated) shall
have been terminated by written notice to the Subordinated Guarantor or the
Trustee from the Senior Representative, after which, in each such case, the
Subordinated Guarantor shall resume making any and all required payments in
respect of the Securities, including any missed payments. Notwithstanding any
other provision of this Indenture, in no event shall a Payment Blockage Period
extend beyond 179 days from the date of the receipt by a Subordinated Guarantor
or the Trustee of the notice referred to in clause (2) of this paragraph (b)
(the "Initial Blockage Period"). Any number of notices of Non-payment Defaults
may be given during the Initial Blockage Period; provided that during any
365-day consecutive period only one Payment Blockage Period during which payment
of principal of, or interest on, the Securities may not be made may commence and
the duration of the Payment Blockage Period may not exceed 179 days. No
Non-payment Default with respect to Designated Senior Debt which existed or was
continuing on the date of the commencement of any Payment Blockage Period will
be, or can be, made the basis for the commencement of a second Payment Blockage
Period, whether or not within a period of 365 consecutive days, unless such
default shall have been cured or waived for a period of not less than 90
consecutive days.
(c) In the event that, notwithstanding the foregoing, a
Subordinated Guarantor shall make any payment to the Trustee or the holder of
any Securities prohibited by the foregoing provisions of this Section 1217, then
and in such event such payment shall be paid over and delivered forthwith to a
Senior Representative of the holders of the Designated Senior Debt or as a court
of competent jurisdiction shall direct.
Section 1218. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or a bankruptcy case or
proceeding, or any reorganization, insolvency, receivership, liquidation,
administration or other similar proceeding in connection therewith, relative to
a Subordinated Guarantor or to its creditors, as such, or to its assets, or (b)
any liquidation, dissolution or other winding up of a Subordinated Guarantor,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets or liabilities of a Subordinated Guarantors, then and in
any such event:
(1) the holders of Guarantor Senior Indebtedness shall be
entitled to receive payment in full in cash or in any other form acceptable to
the holders of Designated Senior Debt of all Guarantor Senior Indebtedness of
all amounts due or in respect of all Guarantor Senior Indebtedness before the
Holders of the Subordinated Guarantees are entitled to receive any payment or
distribution of any kind or character (excluding Permitted Junior Securities) on
account of the principal of, premium, if any, or interest on the Subordinated
Guarantees or any other Indenture Obligations in respect of a Subordinated
Guarantor; and
(2) any payment or distribution of assets of such
Subordinated Guarantor of any kind or character, whether in cash, property or
securities (excluding Permitted Junior Securities), by set-off or otherwise to
which the Holders or the Trustee would be entitled but for
111
the provisions of this Article Twelve shall be paid by the liquidating trustee
or agent or other person making such payment or distribution whether, trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Guarantor Senior Indebtedness or the Senior Representative or to
their trustee or trustees under any indenture under which any instruments
evidencing any Designated Senior Debt may have been issued, ratably according to
the aggregate amounts remaining unpaid on account of the Guarantor Senior
Indebtedness held or represented by each to the extent necessary to make payment
in full in cash or in any other form acceptable to the holders of Designated
Senior Debt of all Guarantor Senior Indebtedness remaining unpaid after giving
effect to any concurrent payment or distribution to the holders of Guarantor
Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 1218, the Trustee or the Holder of any Subordinated
Guarantees shall have received any payment or distribution of assets of such
Subordinated Guarantor of any kind or character, whether in cash, property or
securities, in respect of principal, premium, if any, and interest on the
Subordinated Guarantees or any other Indenture Obligations in respect of a
Subordinated Guarantor before all Guarantor Senior Indebtedness is paid in full
then and in such event such payment on distribution (excluding Permitted Junior
Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent, or other
person making payment or distribution of assets of such Subordinated Guarantor
for application to the payment of all Guarantor Senior Indebtedness remaining
unpaid to the extent necessary to pay all Guarantor Senior Indebtedness in full
in cash or any other form as acceptable to the holders of Designated Senior
Debt, after giving effect to any concurrent payment or distribution to or for
the holders of Guarantor Senior Indebtedness.
The consolidation of such Subordinated Guarantor with, or the
merger of the Subordinated Guarantor with or into another person or the
liquidation or dissolution of the Subordinated Guarantor following the sale,
assignment, conveyance, transfer, lease or other disposal of all or
substantially all of the Subordinated Guarantor's properties or assets to
another person upon the terms and conditions set forth in Article Eight of this
Indenture shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of assets
and liabilities of the Subordinated Guarantor for the purposes of this Section
1218 if the person formed by such consolidation or the surviving entity of such
merger or the person which acquires by sale, assignment, conveyance, transfer,
lease or other disposal of all or substantially all of such Subordinated
Guarantor's properties or assets, as the case may be, shall, as part of such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposal, comply with the conditions set forth in Article Eight of this
Indenture.
Section 1219. Reliance on Subordination.
Each Holder of a Subordinated Guarantee by purchasing or
accepting a Subordinated Guarantee waives any and all notice of the creation,
modification, renewal, extension or accrual of any Guarantor Senior Indebtedness
and notice of or proof of reliance by any holder or owner of Guarantor Senior
Indebtedness upon this Article Twelve; and the Guarantor Senior Indebtedness
shall conclusively be deemed to have been created, contracted or incurred in
reliance upon this Article Twelve and the Intercreditor Deed, and all dealings
between a Subordinated Guarantor and the holders and owners of the Guarantor
Senior Indebtedness shall be deemed to have been consummated in reliance upon
this Article Twelve and the Intercreditor Deed.
112
Section 1220. Obligations of Guarantor Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture, the Securities or the Intercreditor Deed is intended to or shall
impair, as between a Subordinated Guarantor and the holders of the Subordinated
Guarantee, the obligation of such Subordinated Guarantor, which is absolute and
unconditional, to pay to the Holders of the Subordinated Guarantee all amounts
due and payable under such Subordinated Guarantees as and when the same shall
become due and payable in accordance with their terms.
Section 1221. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any
Guarantor Senior Indebtedness to enforce subordination as herein provided shall
at any time in any way be prejudiced or impaired by any act or failure to act on
the part of a Subordinated Guarantor or by any act or failure to act by any such
holder or by any non-compliance by such Subordinated Guarantor with the terms,
provisions and covenants of this Indenture or the Intercreditor Deed, regardless
of any knowledge thereof any such holder may have or otherwise be charged with.
(b) Without limiting the generality of subsection (a) of
this Section 1221 and notwithstanding any other provision contained herein, the
holders of Guarantor Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Subordinated Guarantees, without incurring responsibility to the Holders of the
Subordinated Guarantees and without impairing or releasing the subordination
provided in this Article Twelve or the obligations hereunder of the Holders of
the Subordinated Guarantees to the holders of Guarantor Senior Indebtedness, do
any one or more of the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Guarantor Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Guarantor Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Indebtedness; (3) release any Person liable in any manner for
the collection or payment of Guarantor Senior Indebtedness, and (4) exercise or
refrain from exercising any rights against the Subordinated Guarantor or any
other Person; provided, however, that in no event shall any such actions limit
the right of the Holders of the Subordinated Guarantees to take any action to
accelerate the maturity of the Securities in accordance with the provisions set
forth in this Indenture or to pursue any rights or remedies under this Indenture
or under applicable laws if the taking of such action does not otherwise violate
the terms of this Article Twelve.
Section 1222. Trustee to Effectuate Subordination.
Each Holder of the Subordinated Guarantees by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve and in the Intercreditor Deed, and appoints the
Trustee as his attorney in fact for any and all such purpose, including, in the
event of any liquidation, dissolution, winding-up, reorganization, assignment
for the benefit of creditors or marshalling of assets of a Subordinated
Guarantor whether in bankruptcy, insolvency, receivership proceedings or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of such Subordinated Guarantee owing to such Holder in the form
required in such proceedings and the causing of such claim to be approved.
113
Section 1223. Subrogation to Rights of Holder of Guarantor
Senior Indebtedness.
Subject to the payment in full of all Guarantor Senior
Indebtedness in cash or in any other form as acceptable to the holders of
Designated Senior Debt, the Holders of the Subordinated Guarantees shall be
subrogated to the rights of the holders of such Guarantor Senior Indebtedness to
receive payments and distributions of cash, property and securities applicable
to the Guarantor Senior Indebtedness until the principal of, premium, if any,
and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of Guarantor Senior
Indebtedness of any cash, property or securities to which the Holders or Trustee
would be entitled except for the provisions of this Article Twelve, and no
payments over pursuant to the provisions of this Article Twelve to the holders
of Guarantor Senior Indebtedness by Holders of the Subordinated Guarantees or
the Trustee, shall, as among the Subordinated Guarantor, its creditors other
than holders of Guarantor Senior Indebtedness, and the Holders of the
Subordinated Guarantees, be deemed to be a payment or distribution by the
Subordinated Guarantor to or on account of the Guarantor Senior Indebtedness.
Section 1224. No Suspension of Remedies.
Nothing contained in this Article Twelve shall limit the right
of the Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to this Indenture and as set forth in this
Indenture or to pursue any rights or remedies hereunder or under applicable law,
subject to the rights, if any, under this Article Twelve of the holders, from
time to time, of Guarantor Senior Indebtedness to receive the cash, property or
securities receivable upon the exercise of such rights or remedies.
Section 1225. Provisions Solely to Define Relative Rights.
The provisions of this Article Twelve are intended solely for
the purpose of defining the relative rights of the Holders of the Subordinated
Guarantees on the one hand and the holders of Guarantor Senior Indebtedness on
the other hand. Nothing contained in this Article Twelve or elsewhere in this
Indenture, the Guarantees or in the Securities is intended to or shall (a)
impair, as among a Subordinated Guarantor, its creditors other than holders of
Guarantor Senior Indebtedness and the Holders of the Subordinated Guarantees,
the obligation of such Subordinated Guarantor, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of,
premium, if any, and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against such Subordinated Guarantor of the Holders of the
Subordinated Guarantees and creditors of such Subordinated Guarantor other than
the holders of Guarantor Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Subordinated Guarantees from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of Guarantor Senior
Indebtedness(1) in any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of a Subordinated Guarantor referred to in Section 1218,
to receive, pursuant to and in accordance with such Section, cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder, or
(2) under the conditions specified in Section 1217, to prevent any payment
prohibited by such Section or enforce their rights pursuant to paragraph (c) of
Section 1217.
114
Section 1226. Intercreditor Deed.
In order to evidence the subordinated status of the
Subordinated Guarantees, the Trustee shall, by executing an accession deed dated
as of the Issue Date, become a party to the Intercreditor Deed attached hereto
as Exhibit C among the Company, the Issuer, Xxxxx, the original senior lenders
named therein, the original bridge lenders named therein, and the senior agent
and security agent under the Bank Credit Agreement (the "Intercreditor Deed").
In the event of a conflict between the terms of this Indenture and the terms of
the Intercreditor Deed, the terms of the Intercreditor Deed shall govern. Each
Holder, by accepting a Security, agrees to be bound to all of the terms and
provision of the Intercreditor Deed, as the same may be amended from time to
time, as permitted hereby.
Section 1227. Limitations of Remedies under Subordinated
Guarantees.
Notwithstanding any other provision contained herein, with
respect to each Subordinated Guarantee, no amount shall, until the Designated
Senior Debt has been discharged or paid in full (the "Senior Discharge Date"),
become due by a Subordinated Guarantor under that Subordinated Guarantee
(whether before or after demand has been made under any such Subordinated
Guarantee) and therefore no Enforcement Action may be taken in respect of that
Subordinated Guarantee unless and until:
(a) an event of default relating to the failure to pay an
amount of principal or interest due in respect of the
Securities has occurred (the date of such event of
default, the "Payment Default Date"); and
(b) the Standstill Period has expired.
For these purposes, the "Standstill Period", with respect to any Subordinated
Guarantor, will be the period commencing on the Payment Default Date and ending
on the first to occur of:
(i) the expiry of 179 days from the Payment
Default Date; and
(ii) the date upon which an order is made for the
dissolution or winding-up of the
Subordinated Guarantor; and
(iii) the date upon which the shareholders of the
Subordinated Guarantor pass a valid
resolution for the dissolution or winding-up
of such Subordinated Guarantor;
unless the lenders under the Bank Credit Agreement shall have made demand
pursuant to a guarantee of Designated Senior Debt of any holding company of the
relevant Subordinated Guarantor in which event the Standstill Period will not
expire until such time as the Senior Discharge Date occurs or the date upon
which one of the events described in paragraphs (ii) or (iii) of this Section
1227 occurs.
The Holders and the Trustee shall in addition be entitled to:
(x) take any action necessary to preserve the validity
and existence of their claims for the full amounts
due to them under the Subordinated Guarantees
provided that such action shall not include any of
the
115
actions described under paragraphs (a) to (d) of the
definition of Enforcement Action; and
(y) (to the extent entitled by law) take action against
any creditor or creditors of any member of the
Company or any Subsidiary, agent, trustee or receiver
acting on behalf of such creditors to challenge the
basis on which any sale or disposal is to take place
pursuant to powers granted to such persons under any
security documentation;
(z) bring legal proceedings against any person in
connection with any securities law violation or
common law fraud.
Section 1228. Other Indebtedness.
All other indebtedness (other than Guarantor Senior
Indebtedness) of each Subordinated Guarantor must be subject to the imposition
of an equivalent payment blockage period. The Company shall impose a blockage of
payments on all other Indebtedness (other than Guarantor Senior Indebtedness) of
a Subordinated Guarantor upon the receipt by such Subordinated Guarantor of a
Blockage Notice.
Section 1229. Notice to Trustee.
The Issuer shall give prompt written notice to the Trustee of
any fact known to the Issuer which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Failure to give such notice
shall not affect the subordination of the Securities to Guarantor Senior
Indebtedness. Notwithstanding the provisions of this or any other provision of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities, unless and until the Trustee shall have received
written notice thereof at the address specified in Section 106 from the Issuer
or a holder of Guarantor Senior Indebtedness or from any trustee or agent
therefor; and, prior to the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided, however, that if a Responsible
Officer of the Trustee shall not have received, at least three Business Days
prior to the date upon which by the terms hereof any such money may become
payable for any purpose, the notice with respect to such money provided for in
this Section 1229, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date.
Subject to the provisions to Section 601, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
person representing himself to be a holder of Guarantor Senior Indebtedness (or
a trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee or agent on behalf
of any such holder). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Guarantor Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Guarantor Senior Indebtedness held by such person, the
116
extent to which such person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment which it may be required to make for the benefit of such person pursuant
to the terms of this Indenture pending judicial determination as to the rights
of such person to receive such payment.
Section 1230. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Issuer
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.
Section 1231. Trustee Not Fiduciary for Holders of Guarantor
Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Issuer or to any other person cash, property or
securities to which any holders of Guarantor Senior Indebtedness shall be
entitled by virtue of this Article or otherwise. With respect to the holders of
Guarantor Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article and no implied covenants or obligations with respect to holders of
Guarantor Senior Indebtedness shall be read into this Indenture against the
Trustee.
ARTICLE THIRTEEN
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of
further effect (except as to surviving rights of registration of transfer or
exchange of Securities as expressly provided for herein) as to all Outstanding
Securities hereunder, and the Trustee, upon Issuer Request and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) lost, stolen or destroyed Securities which have been
replaced or paid as provided in Section 308 or (ii) all Securities whose payment
has theretofore been deposited in trust or segregated and held in trust by the
Issuer or the Company and thereafter repaid to the Issuer or the Company or
117
discharged from such trust as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the
Trustee for cancellation (i) have become due and payable, (ii) will become due
and payable at their Stated Maturity within one year or (iii) are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company and the Issuer; and the Issuer or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in trust an amount in Euro or European Government Obligations sufficient to pay
and discharge the entire Indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, including the principal of, premium,
if any, any Additional Amounts and accrued interest on, such Securities at such
Maturity, Stated Maturity or Redemption Date;
(b) the Issuer or any Guarantor has paid or caused to be
paid all other sums payable hereunder by the Issuer and any Guarantor; and
(c) the Issuer or the Company has delivered to the
Trustee an Officers' Certificate and an Opinion of Independent Counsel, in form
and substance reasonably satisfactory to the Trustee, each stating that (i) all
conditions precedent herein relating to the satisfaction and discharge hereof
have been complied with and (ii) such satisfaction and discharge will not result
in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Issuer, any Guarantor or
any Subsidiary is a party or by which the Issuer, any Guarantor or any
Subsidiary is bound.
Notwithstanding the satisfaction and discharge hereof, the
obligations of the Issuer to the Trustee under Section 607 and, if Euro or
European Government Obligations shall have been deposited with the Trustee
pursuant to subclause (2) of subsection (a) of this Section 1301, the
obligations of the Trustee under Section 1302 and the last paragraph of Section
1003 shall survive such satisfaction and discharge.
Section 1302. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all Euro or European Government Obligations deposited with the Trustee
pursuant to Section 1301 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal of, premium, if any, any Additional Amounts and interest on, the
Securities for whose payment such Euro or European Government Obligations have
been deposited with the Trustee.
* * *
118
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
SIGNED as a deed
for and on behalf of
LUCITE INTERNATIONAL FINANCE plc
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
SIGNED as a deed
for and on behalf of
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
119
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
SIGNED as a deed
for and on behalf of
LUCITE INTERNATIONAL GROUP
HOLDINGS LIMITED
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
SIGNED as a deed
for and on behalf of
THE BANK OF NEW YORK
By: /s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
120
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
SIGNED as a deed
for and on behalf of
LUCITE INTERNATIONAL
INVESTMENT LIMITED
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer:
SIGNED as a deed
for and on behalf of
THE BANK OF NEW YORK
/s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
121
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
SIGNED as a deed
for and on behalf of
LUCITE INTERNATIONAL HOLDINGS
LIMITED
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer:
SIGNED as a deed
for and on behalf of
THE BANK OF NEW YORK
/s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
122
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
SIGNED as a deed
for and on behalf of
LUCITE INTERNATIONAL HOLDCO
LIMITED
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
SIGNED as a deed
for and on behalf of
THE BANK OF NEW YORK
/s/ Xxxxxx Xxxxxxxx
-------------------
Name: Xxxxxx Xxxxxxxx
Title: Assistant Treasurer
123
EXHIBIT A
FORM OF INTERCREDITOR DEED
A-1
EXECUTION COPY
CONFORMED COPY
Dated 2 November, 1999
INEOS ACRYLICS LIMITED
INEOS ACRYLICS UK BONDCO LIMITED
INEOS ACRYLICS UK XXXXX LIMITED
and the other companies named herein
from time to time
as Obligors
DEUTSCHE BANK AG
and
XXXXXXX XXXXX CAPITAL CORPORATION
as Original Senior Lenders
THE INSTITUTIONS NAMED HEREIN
as Original Bridge Lenders
DEUTSCHE BANK AG
as Senior Agent
DEUTSCHE BANK AG
as Security Agent
THE HIGH YIELD TRUSTEE
(upon accession)
INTERCREDITOR DEED
SHEARMAN & STERLING
London
CONTENTS
CLAUSE PAGE
2. PURPOSE AND RANKING......................................................................................ix
3. UNDERTAKINGS OF OBLIGORS.................................................................................ix
4. BRIDGE CREDITORS..........................................................................................x
7. PERMITTED PAYMENTS......................................................................................xii
8. SUSPENSION OF PERMITTED PAYMENTS.........................................................................xv
9. TURNOVER.................................................................................................xv
10. SUBORDINATION..........................................................................................xvi
11. RESTRICTIONS ON ENFORCEMENT..........................................................................xviii
12. PERMITTED ENFORCEMENT..................................................................................xix
13. PROCEEDS OF ENFORCEMENT OF SECURITY....................................................................xix
14. ENFORCEMENT OF SECURITY.................................................................................xx
15. PRO RATA AND LOSS SHARING ARRANGEMENTS.................................................................xxi
16. MISCELLANEOUS........................................................................................xxiii
17. SUBROGATION..........................................................................................xxiii
18. PROTECTION OF SUBORDINATION...........................................................................xxiv
19. PRESERVATION OF DEBT...................................................................................xxv
20. POWER OF ATTORNEY......................................................................................xxv
21. CHANGES TO THE PARTIES.................................................................................xxv
22. HEDGING LENDERS.......................................................................................xxvi
23. AMENDMENTS TO FINANCE DOCUMENTS......................................................................xxvii
24. STATUS OF OBLIGORS..................................................................................xxviii
25. NOTICES.............................................................................................xxviii
26. NO IMPLIED WAIVERS..................................................................................xxviii
27. PARTIAL INVALIDITY....................................................................................xxix
28. GOVERNING LAW AND SUBMISSION TO JURISDICTION..........................................................xxix
29. PERPETUITIES...........................................................................................xxx
30. COUNTERPARTS...........................................................................................xxx
SCHEDULE 1................................................................................................xxxi
THE OBLIGORS.....................................................................................xxxi
ii
CLAUSE PAGE
SCHEDULE 2...................................................................................................xxxii
SCHEDULE 3..................................................................................................xxxiii
SCHEDULE 4...................................................................................................xxxiv
DEED OF ACCESSION FOR HIGH YIELD TRUSTEE............................................................xxxiv
SCHEDULE 5....................................................................................................xxxv
Part 1 - Summary of High Yield Guarantee and Subordination Provisions................................xxxv
Part 2 - Agreed Form of High Yield Indenture Subordination Provisions..............................xxxvii
iii
THIS DEED is made on 2 November, 1999
BETWEEN:-
(1) INEOS ACRYLICS LIMITED, a company incorporated in England with
registered number 383057 (the "PARENT");
(2) INEOS ACRYLICS UK BONDCO LIMITED, a company incorporated in England
with registered number 3830500 (the "ISSUER");
(3) INEOS ACRYLICS UK XXXXX LIMITED, a company incorporated in England with
registered number 3830160 ("UK XXXXX");
(4) THE OTHER COMPANIES named in Schedule 1 as Obligors;
(5) DEUTSCHE BANK AG and XXXXXXX XXXXX CAPITAL CORPORATION as the Original
Senior Lenders (the "ORIGINAL SENIOR LENDERS");
(6) THE INSTITUTIONS named in Schedule 1 Part B as the Original Bridge
Lenders (the "ORIGINAL BRIDGE Lenders");
(7) DEUTSCHE BANK AG as the Senior Agent;
(8) DEUTSCHE BANK AG as Security Agent; and
(9) THE HIGH YIELD TRUSTEE upon accession pursuant to Clause 5 (High Yield
Undertakings) hereof.
IT IS AGREED AS FOLLOWS:-
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed:-
"BRIDGE CREDITOR" means each of the Original Bridge Lenders and their
respective successors, assignees and transferees and includes any
person to whom any Bridge Debt may be payable or owing (whether or not
matured) from time to time;
"BRIDGE DEBT" means all Indebtedness payable or owing by the Obligors
or any of them to the Bridge Creditors or any of them pursuant to the
Bridge Finance Documents;
"BRIDGE FACILITY AGREEMENTS" means
(a) the bridge facility agreement dated the date hereof among, the
Issuer, the Bridge Guarantor and the Bridge Creditors
specified in Part I of Part B of Schedule 1 providing for a
364 day term loan facility and (the "SHORT TERM FACILITY");
(b) the facility agreement dated the date hereof among the Issuer,
the Bridge Guarantor and the Bridge Creditors specified in
Part II of Part B of Schedule 1 providing for a 10 year term
loan facility (the "LONG TERM FACILITY").
"BRIDGE GUARANTEE" means the unsecured guarantee of the Bridge Debt
executed or to be executed by the Bridge Guarantor for the benefit of
the Bridge Creditors;
iv
"BRIDGE GUARANTOR" means ParentCo One in its capacity as guarantor of
the Bridge Facility Agreements;
"ENFORCEMENT ACTION" means any action whatsoever taken by a creditor or
creditors or agent or trustee on its or their behalf against any member
of the Group to:-
(a) demand payment, declare prematurely due and payable or
otherwise seek to accelerate payment of all or any part of any
relevant Indebtedness;
(b) recover all or any part of the relevant Indebtedness
(including, without limitation, by exercising any rights of
set-off or combination of accounts); or
(c) exercise or enforce or require any agent or trustee to
exercise or enforce any rights under or pursuant to the
provisions of any guarantee granted by a member of the Group
in relation to all or any part of the relevant Indebtedness or
any rights or security granted pursuant to any security
documents or other Security Interest; or
(d) petition for (or take any other steps or action which may lead
to) an Insolvency Event in relation to any member of the
Group;
(e) commence legal proceedings against any member of the Group; or
(f) in the case of any Hedging Lender, declare an Early
Termination Date under any Hedging Document or demand payment
of all or part of any amount which would become payable
following an Early Termination Date;
"FINANCE DOCUMENTS" means each of the Senior Finance Documents, the
Hedging Documents, the Bridge Finance Documents, the High Yield Finance
Documents and the Intercompany Documents;
"XXXXX/ISSUER LOAN AGREEMENT" means the loan agreement, in the agreed
terms, made between the Issuer and UK Xxxxx pursuant to which the
proceeds of the Bridge Facility Agreements are or are to be advanced by
the Issuer to UK Xxxxx;
"HEDGING DOCUMENT" means each master agreement or other document
delivered by a Hedging Lender to the Security Agent under Clause 22
(Hedging Lenders), providing for interest rate hedging facilities to be
made available to one or more of the Obligors (including any contract
entered into or confirmation given thereunder) and in each case
including any instrument pursuant to which the same is novated, varied,
supplemented or amended from time to time;
"HEDGING LENDER" means any Senior Creditor in its capacity as provider
of interest rate hedging facilities to one or more of the Obligors
under Hedging Documents;
"HEDGING LIABILITIES" means all Indebtedness payable or owing by the
Obligors or any of them to the Hedging Lenders or any of them pursuant
to the Hedging Documents;
"HIGH YIELD COSTS" means legal fees, accountancy fees, arrangement
fees, underwriting fees, roadshow costs and all other fees, costs,
taxes and expenses incurred for the purposes of and/or in connection
with the issue of the High Yield Notes but excluding, for the avoidance
of doubt, indemnified expenses arising due to a breach of the
subscription documents for the High Yield Notes or to a
misrepresentation or misstatement or alleged misrepresentation or
misstatement thereunder or in connection therewith;
"HIGH YIELD CREDITOR" means each of:-
(a) the High Yield Noteholders; and
v
(b) the High Yield Trustee,
and their respective successors, assignees or transferees and includes
any person to whom any High Yield Debt may be payable or owing (whether
or not matured) from time to time;
"HIGH YIELD DEBT" means all Indebtedness payable or owing by the
Obligors or any of them to the High Yield Creditors or any of them
pursuant to the High Yield Finance Documents;
"HIGH YIELD FINANCE DOCUMENTS" means the High Yield Notes, the High
Yield Senior Guarantees, the High Yield Subordinated Guarantees, the
High Yield Indenture and all other documents evidencing the terms of
the High Yield Notes (in each case in terms complying with the
requirements of Clause 5 (High Yield Undertakings) of this Deed), this
Deed and any other agreement or document that may be entered into or
executed pursuant thereto or in connection therewith;
"HIGH YIELD GUARANTORS" means the High Yield Senior Guarantors and the
High Yield Subordinated Guarantors;
"HIGH YIELD INDENTURE" means a note indenture and/or other instrument
pursuant to which the High Yield Notes are issued;
"HIGH YIELD SENIOR GUARANTEES" means the unsecured senior guarantees
executed or to be executed by ParentCo One and ParentCo Two in respect
of the High Yield Debt and for the benefit of the High Yield Creditors;
"HIGH YIELD SUBORDINATED GUARANTEES" means the unsecured senior
subordinated guarantees in the terms contemplated by Schedule 5 in
respect of the High Yield Debt executed or to be executed by the High
Yield Subordinated Guarantors and granted for the benefit of the High
Yield Creditors;
"HIGH YIELD SENIOR GUARANTORS" means ParentCo One and ParentCo Two in
their capacities as guarantors of the High Yield Notes;
"HIGH YIELD SUBORDINATED GUARANTORS" means;
(a) ParentCo Three;
(b) UK Xxxxx;
(c) Ineos Acrylics UK Overseas HoldCo 1 Limited, a company
incorporated with registered number 3830166;
(d) Ineos Acrylics US HoldCo Limited, a company incorporated with
registered number 3830157;
(e) any other member of the Group which shall have become a
guarantor in relation to the High Yield Debt with the consent
of the Majority Senior Creditors;
"HIGH YIELD NOTES" means the bonds issued or to be issued by the Issuer
(in an aggregate principal amount of US $200,000,000) as permitted by
Clause 7.1(b) (Permitted Bridge Payments) pursuant to Rule 144A and/or
Regulation S under the US Securities Act of 1933, as amended, or any
notes issued pursuant to an exchange of such bonds for notes registered
with the US Securities and Exchange Commission and bearing terms
identical to those of the original bonds other than the provision
relating to registration rights;
"HIGH YIELD TRUSTEE" means the trustee appointed on behalf of the
holders of the High Yield Notes;
vi
"INDEBTEDNESS" means in relation to any creditor or group of creditors
all present and future indebtedness and other liabilities of any nature
payable or owing to such creditor or creditors under or in connection
with any specified documentation (including, without limitation, under
such documentation as amended, novated, supplemented or restated
(whether or not such variation provides for any increase in the
relevant indebtedness or liabilities)) whether now existing or arising
hereafter, whether actual or contingent and including, without
limitation, joint and joint and several indebtedness and liabilities,
indebtedness and liabilities arising by reason of any guarantee or
indemnity and all amounts expressed to be payable thereunder regardless
of whether or not recoverability of such amounts is effected by any
insolvency or other relevant law;
"INSOLVENCY EVENT" means the occurrence of any of the events specified
in Clause 17.1(f) to (k) (inclusive) or 17.4 of the Senior Facilities
Agreement;
"INTERCOMPANY CREDITORS" means each Obligor in its capacity as a
creditor in relation to any Intercompany Debt;
"INTERCOMPANY DEBT" means all Indebtedness payable or owing by
Intercompany Debtors or any of them to Intercompany Creditors or any of
them including, but not limited to, Indebtedness under the Intercompany
Documents;
"INTERCOMPANY DEBTORS" means each Obligor in its capacity as a debtor
in relation to, or who is at any time liable (whether actually or
contingent) for, any Intercompany Debt;
"INTERCOMPANY DOCUMENTS" means the agreements under or by which any
Intercompany Debt advanced on the Completion Date is outstanding (and
includes, for the avoidance of doubt, the Xxxxx/Issuer Loan Agreement);
"MAJORITY SENIOR CREDITORS" means the Majority Banks as defined in the
Senior Facilities Agreement, provided that if, at the relevant time,
any Bank (as defined therein) is also a Hedging Lender, for the
purposes only of calculating voting rights under this Deed in
accordance with this definition, the Total Commitments under the Senior
Facilities Agreement will be notionally increased by an aggregate
amount equal to the aggregate of the Settlement Amounts (being a
positive number), if any, which would be payable to the Hedging Lenders
under the Hedging Documents were the date on which the calculation is
made deemed to be an Early Termination Date for which any Obligor is
the Defaulting Party (and for this purpose "SETTLEMENT AMOUNT", "EARLY
TERMINATION DATE" and "DEFAULTING PARTY" shall have the meaning
ascribed to them in the applicable Hedging Document), such amount to be
certified by the relevant Senior Finance Party in reasonable detail
(including the quotations obtained in connection therewith) and each
Bank which is a Hedging Lender will be deemed to have the aggregate
amount of its Commitments increased by the Settlement Amount with
respect to the Hedging Documents to which it is party;
"PARENTCO ONE" means Ineos Acrylics UK ParentCo 1 Limited a company
incorporated in England with registered number 3829877;
"PARENTCO TWO" means Ineos Acrylics UK Parent Co 2 Limited a company
incorporated in England with registered number 3830534;
"PARENTCO THREE" means Ineos Acrylics UK Parent Co 3 Limited a company
incorporated in England with registered number 3830184;
"OBLIGORS" means each of the companies specified in Schedule 1 and any
company which becomes an Obligor in accordance with Clause 21.3 (New
Obligors);
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"SECURITY AGENT" means Deutsche Bank AG acting in its capacity as
trustee in relation to the Security Documents or such other person as
may from time to time act in that capacity;
"SENIOR AGENT" means Deutsche Bank AG acting in its capacity as agent
for the Senior Creditors or such other person as may from time to time
act in that capacity;
"SENIOR CREDITOR" means each of the Original Senior Creditors, each
Ancillary Bank, each Issuing Bank, each Hedging Lender, the Arrangers,
the Senior Agent, the Security Agent and their respective successors,
assignees and transferees;
"SENIOR DEBT" means all Indebtedness payable or owing by the Obligors
or any of them to the Senior Creditors or any of them pursuant to the
Senior Finance Documents (as such Senior Debt may be renewed, extended,
substituted, refinanced, restructured or replaced including, without
limitation, any successive renewals, extensions, substitutions,
refinancings, restructurings and replacements and any increases);
"SENIOR DISCHARGE DATE" means the date on which all Senior Debt has
been fully paid and discharged and all commitments of the Senior
Creditors have been canceled or terminated to the satisfaction of the
Senior Agent;
"SENIOR FACILITIES AGREEMENT" means the senior facilities agreement
dated the date of this Deed among the Parent, certain of the other
Obligors, the Original Senior Creditors, the Security Agent, the
Arrangers and the Senior Agent.
1.2 AMENDMENTS AND VARIATIONS
References in this Deed to (or to any provisions of, or definitions
contained in) this Deed or any other document shall be construed as
references to this Deed, that provision, that definition or that
document as in force for the time being and as amended, varied,
supplemented or novated from time to time but only to the extent that
any such amendment, variation, supplement or novation has not been made
in contravention of the terms of this Deed.
viii
1.3 INTERPRETATION
(a) References to a person include that person's respective
successors, assignees, transferees and substitutes.
(b) Headings are for convenience of reference only and shall be
ignored in the interpretation of this Deed.
(c) In this Deed, unless the context otherwise requires:-
(i) references to Clauses and Schedules are to be
construed as references to the clauses of, and the
schedules to, this Deed; and
(ii) words importing the singular shall include the
plural, and vice versa.
(d) Terms defined in or whose interpretation is provided for in
the Senior Facilities Agreement shall have the meaning given
to them in the Senior Facilities Agreement as in effect on the
date of this Deed when used in this Deed (whether before or
after the Senior Discharge Date) unless separately defined or
interpreted in this Deed.
2. PURPOSE AND RANKING
The principal purpose of this Deed is that the Senior Debt should rank
(a) (to the extent provided herein) in priority to the Bridge Debt and,
after the Bridge Debt has been repaid in full, the High Yield Debt and
(b) the Intercompany Debt. This Deed does not purport to rank the
various elements of the Senior Debt as between themselves nor to rank
the Bridge Debt, the High Yield Debt and the Intercompany Debt (or any
elements thereof) as between themselves.
3. UNDERTAKINGS OF OBLIGORS
3.1 Subject as provided in Clauses 3.2 and 3.3, each Obligor undertakes to
each of the Senior Creditors that, until the Senior Discharge Date,
except as the Majority Senior Creditors have previously consented in
writing, such Obligor will not, and will procure that none of its
Subsidiaries will:-
(a) pay, prepay or repay, or make any distribution in respect of,
or on account of, or purchase or acquire, any of the Bridge
Debt, the High Yield Debt or the Intercompany Debt in cash or
in kind, except as permitted by Clauses 7 (Permitted Payments)
and 12 (Permitted Enforcement) (subject as provided in Clause
10 (Subordination)) and save as contemplated by Clause 10.3
(Filing of Claims); or
(b) discharge any of the Bridge Debt, the High Yield Debt or the
Intercompany Debt by set-off, any right of combination of
accounts or otherwise except if and to the extent that it is
permitted to be paid by Clauses 7 (Permitted Payments) and 12
(Permitted Enforcement) (subject as provided in Clause 10
(Subordination)) and save as contemplated by Clause 10.3
(Filing of Claims); or
(c) create or permit to subsist, or permit any member of the Group
to create or permit to subsist, any Security Interest over any
of its assets for any of the Bridge Debt, the High Yield Debt
or the Intercompany Debt;
(d) defease, acquire or agree to acquire or procure any other
person to acquire on its account all or any part of the Bridge
Debt, the High Yield Debt or the Intercompany Debt; or
(e) give any financial support (including without limitation, the
taking of any participation, the giving of any guarantee,
indemnity or other assurance against loss, or the making of
any deposit or payment) to any person in respect of the Bridge
Debt, the High Yield Debt or the Intercompany Debt or to
enable any person to do any of the things referred to in this
Clause 3 other than:
ix
(i) in the case of the Bridge Debt, the Bridge Guarantee;
and
(ii) in the case of the High Yield Debt, the High Yield
Senior Guarantees and the High Yield Subordinated
Guarantees;
(f) take or omit to take any action whereby the ranking and/or
subordination of the Bridge Debt, the High Yield Debt or the
Intercompany Debt contemplated by this Deed might reasonably
be expected to be impaired except to the extent expressly
permitted hereunder.
3.2 Nothing in this Clause 3 shall prevent the exchange of the originally
issued High Yield Debt for other High Yield Debt that is registered
with the US Securities and Exchange Commission and bears terms
identical to those of the originally issued High Yield Debt other than
the provisions relating to registration rights.
3.3 The provisions of Clauses 3.1(a), (b) and (d) shall not apply to the
Issuer or the High Yield Senior Guarantors to the extent they relate to
the High Yield Debt.
4. BRIDGE CREDITORS
Each Bridge Creditor undertakes to each of the Senior Creditors that,
until the Senior Discharge Date, except as the Majority Senior
Creditors have previously consented in writing, no Bridge Creditor
will:-
(a) demand or receive payment, prepayment or repayment of, or any
distribution in respect of, or on account of, any of the
Bridge Debt in cash or in kind or apply any money or property
in or towards the discharge of any Bridge Debt, except to the
extent permitted by Clause 7 (Permitted Payments) or Clause 12
(Permitted Enforcement) (subject as provided in Clause 10
(Subordination)) and save as contemplated by Clause 10.3
(Filing of Claims);
(b) discharge or seek to discharge all or any part of the Bridge
Debt by set-off, any right of combination of accounts or
otherwise except to the extent that the Bridge Debt is
permitted to be paid by Clause 7 (Permitted Payments) or
Clause 12 (Permitted Enforcement) (subject as provided in
Clause 10 (Subordination)) and save as contemplated by Clause
10.3 (Filing of Claims);
(c) permit to subsist or receive any Security Interest or any
financial support, guarantee, indemnity or other assurance
against loss, or the making of any deposit (other than funded,
unfunded or risk participations in the Bridge Debt by banks or
financial institutions) for, or in respect of, any of the
Bridge Debt other than the Bridge Guarantee.
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5. HIGH YIELD UNDERTAKINGS
5.1 The Issuer undertakes that, notwithstanding any other provision of this
Deed, the High Yield Finance Documents shall not be entered into
unless:
(a) either:
(i) the guarantee and subordination provisions of the
High Yield Notes and the High Yield Subordinated
Guarantees incorporate and the terms of the High
Yield Subordinated Guarantees are(and include
provisions in substance) as described in Schedule 5;
or
(ii) the Senior Agent has confirmed that it is satisfied
that guarantee and subordination arrangements in
relation to the High Yield Notes are on terms no less
favourable to the Senior Creditors than the
provisions contained in Schedule 5; and
(b) the terms of the High Yield Notes provide that:-
(i) the rate of cash pay interest (but not taking into
account for this purpose any default interest or
special interest) applicable to the High Yield Notes
is (and will be) no higher than 15% per annum and
payment of interest will be no more frequent than
semi-annually; and
(ii) the scheduled repayment date of the principal amount
of the High Yield Notes is not, and will not be prior
to, the tenth anniversary of the date of this Deed
unless the Senior Banks otherwise agree; and
the proceeds of issue of the High Yield Notes are applied immediately
to refinance or to repay any Bridge Debt outstanding, accrued or
payable at the time of such issue or borrowing and to meet any High
Yield Costs or costs of such repayment.
5.2 The Issuer will procure that simultaneously with or prior to entering
into any High Yield Finance Documents as contemplated by Clause 5.1
(High Yield Undertakings), the High Yield Trustee will agree to be
bound by the provisions of this Deed by entering into a deed of
accession substantially in the form of Schedule 4 and the parties
hereto from time to time hereby agree to accept such accession.
5.3 The High Yield Trustee agrees, that, upon its accession as referred to
in Clause 5.2, the terms of the High Yield Notes in respect of
subordination are for the benefit of the Senior Creditors and are
hereby incorporated herein.
6. INTRA-GROUP UNDERTAKINGS
6.1 Until the Senior Discharge Date, except as the Senior Agent (on the
instructions of the Majority Senior Creditors) has previously consented
in writing, no Intercompany Creditor will:-
(a) demand or receive payment, prepayment or repayment of or any
distribution in respect of (or on account of) any of the
Intercompany Debt in cash or in kind or apply any money or
property in or towards the discharge of any Intercompany Debt
except to the extent permitted by Clause 7 (Permitted
Payments) and 12 (Permitted Enforcement) (subject as provided
in Clause 10 (Subordination)) and save as contemplated by
Clause 10.3 (Filing of Claims);
(b) discharge or seek to discharge all or any part of the
Intercompany Debt by set-off, any right of combination of
accounts or otherwise except to the extent permitted by Clause
7 (Permitted Payments) and save as contemplated by Clause 10.3
(Filing of Claims);
(c) permit to subsist or receive any Security Interest or any
financial support (including, without limitation, any
guarantee, indemnity, deposit or other assurance against loss)
for, or in respect of, any of the Intercompany Debt;
xi
(d) claim or rank as a creditor in the insolvency, winding-up,
bankruptcy or liquidation of any member of the Group other
than with respect to Intercompany Debt in accordance with the
provisions of Clause 10.3 (Filing of Claims); or
(e) take or omit to take any action whereby the ranking and/or
subordination arrangements provided for in this Deed may be
impaired or whereby any Intercompany Debt may be subordinated
other than as provided in this Deed.
6.2 Prior to the Senior Discharge Date, except as the Senior Agent (acting
on the instructions of the Majority Senior Creditors) shall agree;
(a) no Obligor will and each Obligor will procure that none of its
Subsidiaries will make any payment to the Issuer, the Parent,
ParentCo One or ParentCo Two (whether of principal or interest
of any Intercompany Debt, by way of loan, by way of dividend
or otherwise) or transfer any assets to the Issuer, the
Parent, ParentCo One or ParentCo Two save as permitted under
Clause 7 (Permitted Payments); and
(b) ParentCo Three will not declare or pay (including, without
limitation, by way of set-off, combination of accounts or
otherwise) any dividend or make any other distribution or
payment (whether in cash or in kind) to the Parent, ParentCo
One or ParentCo Two save as permitted under Clause 7
(Permitted Payments).
7. PERMITTED PAYMENTS
7.1 PERMITTED BRIDGE PAYMENTS
(a) Prior to the Senior Discharge Date, but subject to Clause 8
(Suspension of Permitted Payments) and 10 (Subordination), the
Issuer may, and following demand under the Bridge Guarantee
the Bridge Guarantor may, pay in cash, and the Bridge
Creditors may receive and retain payment in cash of:
(i) interest on the principal amount of the Bridge Debt
payable in cash in accordance with the Bridge Finance
Documents (without regard to any amendment after the
date of this Deed except as permitted under this
Deed) on or after the dates provided for in the
Bridge Finance Documents and only in accordance with
the terms thereof; and
(ii) the payment of fees, costs, taxes and expenses under
the Bridge Facility Agreements (without regard to any
amendment after the date of this Deed except as
permitted under this Deed) payable in accordance with
the terms thereof.
(b) No prepayment, repayment, redemption, purchase, repurchase or
acquisition of principal of the Bridge Debt prior to the
Senior Discharge Date may be made without the consent of the
Majority Senior Creditors, except that the Issuer may:
(i) prepay the whole (but not part) of the Bridge Debt
from the proceeds of the issue of the High Yield
Notes provided that the requirements of Clause 5
(High Yield Undertakings) have been met in relation
to such issue of High Yield Notes together with, (to
the extent that the proceeds of the High Yield Notes
are insufficient to prepay the Bridge Debt in full)
the proceeds of:
(A) an issue of ordinary shares to ParentCo
Three the funds for subscription of which
have been obtained by ParentCo Three from an
issue of ordinary or preference shares by
the Parent (on the same terms as provided
for in the Articles of Association of the
Parent at the date hereof) such proceeds
being subscribed by way of ordinary share
capital by the Parent in ParentCo One, by
ParentCo One in ParentCo Two and by ParentCo
Two in ParentCo Three; or
xii
(B) a loan subordinated on terms satisfactory to
the Majority Senior Creditors (including,
without limitation, as to timing of
payments) and advanced by a person approved
by the Majority Senior Creditors; and
(ii) repay the Short Term Facility from the proceeds of
the Long Term Facility.
(c) After the Senior Discharge Date any such payments may be made
and received freely in accordance with the terms of the Bridge
Facility Agreements.
7.2 PERMITTED INTRA-GROUP PAYMENTS TO THE ISSUER - BRIDGE DEBT
Subject as provided in Clause 8 (Suspension of Permitted Payments), if
the Issuer shall be entitled to make a payment under this Deed in
respect of the Bridge Debt under Clause 7.1(a) (Permitted Bridge
Payments), UK FincCo shall be entitled to pay to the Issuer on or about
the date on which such payment in respect of the Bridge Debt is to be
made an amount (but only by way of payment of interest pursuant to the
Xxxxx/Issuer Loan Agreement or by way of intra-group loan) equal to the
amount of the payment which the Issuer is entitled to make in respect
of the Bridge Debt subject to the Issuer giving to the Senior Agent not
less than 10 Business Days' prior notice in writing of the intention to
make any such payment save to the extent that such payment is of
interest on the Bridge Debt on its due date and provided that any such
amount shall only be paid by UK Xxxxx to the Issuer not more than 5
Business Days prior to the date of any payments specified in paragraphs
(i) and (ii) of Clause 7.1(a) above.
7.3 PERMITTED UK XXXXX/ISSUER PAYMENTS - HIGH YIELD NOTES
(a) Prior to the Senior Discharge Date, but subject to Clause 8
(Suspension of Permitted Payments) and the repayment in full
of the Bridge Debt, UK Xxxxx may pay to the Issuer in cash, on
or about the date on which such payment in respect of the High
Yield Debt is to be made by way of payment of interest on the
Xxxxx/Issuer Loan Agreement or by way of intra-group loan made
by UK Xxxxx to the Issuer (and subject to UK Xxxxx giving to
the Senior Agent not less than 10 Business Days' prior notice
in writing of the intention to make such payment save to the
extent that such payment is of interest on the High Yield Debt
on its due date):
(i) an amount equal to all scheduled interest payments
arising as a result of the High Yield Notes the
payment of which is provided for in the High Yield
Indenture (without regard to any amendment thereof
after the date of such High Yield Indenture except as
permitted under this Deed) on or after the dates
provided for in the High Yield Indenture and only in
accordance with the terms thereof together with
special interest (not exceeding 1%) arising as a
result of not complying with the covenant regarding
exchange offers and registration rights in the High
Yield Indenture and additional amounts payable as a
result of the operation of tax gross-up provisions in
the High Yield Indenture;
(ii) an amount equal to High Yield Costs and the fees and
expenses of the High Yield Trustee and the paying
agent, registrars, custodians and book entry
depositaries for the High Yield Notes incurred in
connection with the High Yield Debt.
provided that any such amount shall only be paid by UK Xxxxx
to the Issuer not more than 5 Business Days prior to the date
of any payment specified in paragraph (i) and (ii) above.
(b) No prepayment, repayment, redemption, purchase, repurchase or
acquisition or defeasance of the Xxxxx/Issuer Loan Agreement
may be made by any Obligor prior to the Senior Discharge Date
without the consent of the Majority Senior Creditors and no
payment shall be made by any UK Xxxxx to the Issuer to enable
the Issuer to make any prepayment, repayment, redemption,
purchase, repurchase or acquisition or defeasance of the High
Yield Notes or any of them.
xiii
(c) After the Senior Discharge Date any such payments may be made
and received freely under the Xxxxx/Issuer Loan Agreement.
(d) For the benefit of the High Yield Creditors only it is agreed
that the restrictions contained in this Clause 7.3 (Permitted
Xxxxx/Issuer Payment - High Yield Notes) are restrictions on
the Obligors undertaken for the benefit of the Senior
Creditors and accordingly shall not restrict the right of the
High Yield Creditors to receive such amounts under the High
Yield Notes subject as provided in the High Yield Notes.
7.4 PERMITTED INTRA-GROUP DEBT PAYMENTS - GENERAL
Subject as provided in Clause 8 (Suspension of Permitted Payments), in
addition to payments permitted by Clause 7.2 (Permitted Intra-Group
Payments to the Issuer - Bridge Debt) and Clause 7.3 (Permitted
Xxxxx/Issuer Payments - High Yield Notes), any Intercompany Debtor may
pay interest or repay or prepay principal of or make any other payment
due with respect to any Intercompany Debt and an Intercompany Creditor
may receive any such sum, provided that prior to the Senior Discharge
Date, no such payment shall be made without the consent of the Senior
Agent (acting on the instructions of the Majority Senior Creditors)
unless the Intra-Group Creditor which is the recipient of the relevant
payment is ParentCo Three or a directly or indirectly wholly-owned
subsidiary of ParentCo Three (other than the Issuer) and such
Intercompany Debt is permitted under the Senior Facilities Agreement.
7.5 OTHER PERMITTED PAYMENTS TO THE PARENT, PARENTCO ONE AND PARENTCO TWO
Subject as provided in Clause 8 (Suspension of Permitted Payments) and
the High Yield Finance Documents, ParentCo Three, shall be entitled to
make payments to the Parent, ParentCo One or ParentCo Two by way of
payment of interest or repayment of capital in respect of Intercompany
Debt or by way of dividend on shares or by way of lawful intra-group
loan but only if and to the extent that the Parent, ParentCo One or
ParentCo Two requires the monies for the following purposes:-
(i) taxes, duties or similar fees payable by the Parent,
ParentCo One or ParentCo Two to the Revenue
Commissioners, Customs & Excise, or other
governmental or regulatory authorities;
(ii) fees and expenses properly incurred in the ordinary
course of business to auditors and to legal advisers
(in each case to the extent such fees and expenses
specifically relate to the Parent, ParentCo One or
ParentCo Two as the case may be and activities
relating to the Parent, ParentCo One or ParentCo Two
as the case may be);
(iii) arm's length legal fees and any filing, registration
or similar fees, costs and expenses incurred in
connection with the issue, listing or registration of
any securities (permitted to be issued by the terms
of the Finance Documents) issued by the Parent,
ParentCo One or ParentCo Two, or
(iv) payments permitted to be made pursuant to the
Investor Side Letter;
and if the sum to be paid exceeds Pound Sterling1,250,000 in any
Financial Year of the Parent, the Parent has given not less than 10
Business Days' notice of the proposed payment in writing to the Senior
Agent.
Notwithstanding the foregoing nothing in this Clause 7.5 shall be
deemed to modify in any way of the provisions of the High Yield Finance
Documents.
7.6 DUE DILIGENCE RECOVERIES
Nothing in this Deed shall prevent any of the parties to this Deed
making any claims for costs or damages in relation to the Reports
provided that:
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(a) before any party to this Deed (other than the High Yield
Creditors) takes such action, it will notify and (except in
the case of the Senior Creditors) consult with the other
parties to this Deed (other than the High Yield Creditors) to
whom the relevant Report is addressed on the nature of the
action to be taken; and
(b) if any Senior Debt remains outstanding and any party to this
Deed (other than the High Yield Creditors) receives any moneys
as a result of making any claim for costs or damages in
relation to any of the Reports, the relevant recipient shall
pay an amount equal to the amount of such moneys (less the
costs and expenses incurred in making such claim) to ParentCo
Three by way of a loan, which shall form part of the
liabilities owing to that party and, as such, shall rank pari
passu with other indebtedness due to such party in accordance
with the provisions of this Deed and otherwise be subject to
the provisions of this Deed governing that indebtedness; and
(c) any moneys received by a member of the Group as a result of a
claim made by it in respect of any Report, to the extent such
moneys are not used to reinstate, replace, repair or otherwise
invest in assets in respect of which such moneys were received
within 180 days after receipt, shall be applied in prepayment
of Senior Debt in accordance with Clause 8.3(b) of the Senior
Facilities Agreement provided that following acceleration of
the Senior Debt any such monies shall be paid upon receipt to
the Security Agent to be held on trust and be applied in
accordance with the terms of Clause 13 (Proceeds of
Enforcement of Security).
8. SUSPENSION OF PERMITTED PAYMENTS
8.1 XXXXX/ISSUER LOAN AGREEMENT
(a) UK Xxxxx shall not make any payment permitted under Clause 7
(Permitted Payments) upon or in respect of the Xxxxx/Issuer
Loan Agreement or to the Issuer if:
(i) a default in the payment of any amount with respect
to any Senior Debt occurs and is continuing (a
"payment default") or
(ii) a default, other than a payment default, occurs and
is continuing with respect to Senior Debt that
permits holders of the Senior Debt as to which such
default relates to accelerate its maturity (a
"non-payment default") and UK Xxxxx receives a notice
of such non-payment default (an "Issuer Blockage
Notice") from the Security Agent.
(b) Payments on the Xxxxx/Issuer Loan Agreement may and shall be
resumed upon the earliest of the date on which such default is
cured or waived or ceases to exist and, if the Senior Debt has
been accelerated, such acceleration has been rescinded or the
date on which UK Xxxxx receives notice from the Security Agent
terminating such Issuer Blockage Notice or the Senior
Discharge Date on which such Senior Debt shall have been
discharged or paid in full.
8.2 OTHER INTERCOMPANY DEBT
Without prejudice to Clause 8.1 (Xxxxx/Issuer Loan Agreement), Clause
10.3 (Filing of Claims) and 10.4 (Distributions), no Obligor may make
any payments permitted by Clause 7.4 (Permitted Intra-Group Debt
Payments - General) or Clause 7.5 (Other Permitted Payments to Parent,
ParentCo One and ParentCo Two) following an Event of Default if the
Senior Agent has, on the instructions of the Majority Senior Creditors,
served a written notice on the Parent suspending such payments or a
particular payment or category or payment.
9. TURNOVER
9.1 TURNOVER
If at any time prior to the Senior Discharge Date:-
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(a) any Hedging Lender receives or recovers a payment or
distribution in cash or in kind of, or on account of, any of
the Hedging Liabilities as a result of any Enforcement Action
which is prohibited by Clause 11.5 (Restrictions on Hedging
Enforcement Action); or
(b) any Bridge Creditor or Intercompany Creditor receives or
recovers a payment or distribution in cash or in kind of, or
on account of, any of the Bridge Debt or Intercompany Debt
which is not permitted by Clause 7 (Permitted Payments) and
which, in the case of a Bridge Creditor, it is aware or ought
to have been aware is not so permitted; or
(c) any Obligor or any other member of the Group makes any payment
or distribution in cash or in kind on account of the purchase
or other acquisition of any of the Bridge Debt or Intercompany
Debt which is not permitted by Clause 7 (Permitted Payments);
or
(d) any of the Bridge Debt or Intercompany Debt is discharged by
set-off, combination of accounts or otherwise (save to the
extent permitted by Clause 7 (Permitted Payments)); or
(e) the Parent, the Issuer or, ParentCo One or ParentCo Two
receives or recovers a payment or distribution in cash or in
kind from any member of the Group which it is not entitled to
receive in accordance with Clause 7 (Permitted Payments);
the recipient will upon demand pay and distribute to the Security Agent
for application as provided in Clause 13 (Proceeds of Enforcement of
Security) the amount of such payment, distribution, recovered proceeds,
receipt, set-off, combination of accounts or other discharge, after
deducting from the amount recovered, in the case of the Bridge
Creditors and Hedging Lenders only, costs and expenses (if any)
reasonably incurred by the Bridge Creditors and Hedging Lenders in
recovering such payment, distribution, recovered proceeds, receipt,
set-off or other discharge or effecting such combination of accounts.
Each Obligor in respect of Bridge Debt or Hedging Liabilities shall
indemnify the Bridge Creditors or Hedging Lenders upon demand (to the
extent of its liability for the Bridge Debt or Hedging Liabilities) for
the amount of such payment, distribution, recovered proceeds, set-off,
combination of accounts or other discharge so paid and distributed and
(if appropriate) costs and expenses and the Bridge Debt or Hedging
Liabilities will not be deemed to have been reduced or discharged in
any way or to any extent by the relevant payment, distribution,
set-off, proceeds, combination of accounts, costs, liabilities or
expenses.
9.2 HIGH YIELD
The turnover provisions set out in Schedule 5 with respect to the High
Yield Subordinated Guarantees will apply in relation to the High Yield
Debt and the High Yield Creditors will be subject to the provisions
thereof.
10. SUBORDINATION
10.1 SUBORDINATION EVENTS
If:-
(a) any resolution is passed or order made for the winding-up,
bankruptcy, liquidation, dissolution, administration or
reorganisation of any Obligor; or
(b) any Obligor becomes subject to any insolvency, bankruptcy,
reorganisation, administration, receivership (whether relating
to all or some only of its assets and whether or not resulting
from the enforcement of any of the Security Documents),
liquidation, dissolution or other similar proceeding whether
voluntary or involuntary (and whether or not involving
insolvency); or
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(c) any Obligor assigns its assets for the benefit of its
creditors or enters into any composition or arrangement with
its creditors generally or any arrangement is ordered or
declared whereby its affairs and/or assets are submitted to
the control of, or are protected from, its creditors; or
(d) any Obligor becomes subject to any distribution of its assets
in consequence of insolvency, bankruptcy, reorganisation,
liquidation, dissolution, examination or administration; or
(e) any event analogous to any of the foregoing shall occur in
relation to any Obligor or its assets in any jurisdiction;
the provisions of Clauses 10.2 (Subordination), 10.3 (Filing of Claims)
and 10.4 (Distributions) shall apply.
10.2 SUBORDINATION
In any of the circumstances mentioned in Clause 10.1 (Subordination
Events) above:-
(a) the claims against the relevant Obligor in respect of Bridge
Debt will be subordinate in right of payment to the claims
against the relevant Obligor in respect of the Senior Debt;
(b) the claims against the relevant Obligor in respect of High
Yield Subordinated Guarantees will on the basis provided for
in Schedule 5 be subordinate in right of payment to the claims
against the relevant Obligor in respect of the Senior Debt;
and
(c) (unless otherwise required by the Senior Agent) the claims
against the relevant Obligor in respect of Intercompany Debt
will be subordinate in right of payment to the claims against
the relevant Obligor in respect of Senior Debt.
10.3 FILING OF CLAIMS
In any of the circumstances mentioned in Clause 10.1 (Subordination
Events), until the time when the Senior Discharge Date has occurred,
the Security Agent may, and is irrevocably authorised on behalf of the
Bridge Creditors and the Intercompany Creditors respectively to:-
(a) demand, claim, enforce and prove for the Bridge Debt and
Intercompany Debt (if any) owed by, or any other claims
against, the relevant Obligor;
(b) file claims and proofs, give receipts and take all such
proceedings and do all such things as the Security Agent
considers reasonably necessary to recover the Bridge Debt and
Intercompany Debt (if any) owed by, or any other claims
against, the relevant Obligor; and
(c) receive all distributions on or on account of the Bridge Debt
and Intercompany Debt (if any) owed by, or any other claims
against, the relevant Obligor for application in accordance
with Clause 13 (Proceeds of Enforcement of Security).
If, and to the extent that, the Security Agent is itself not entitled
to demand, claim, enforce, prove, file, give receipts or take
proceedings for the recovery of the Bridge Debt or the Intercompany
Debt, the relevant Obligor, the Bridge Creditors or the Intercompany
Creditors (as the case may be) will do so in good time as requested by
the Security Agent from time to time after the occurrence of any of the
circumstances mentioned in Clause 10.1 (Subordination Events) above.
10.4 DISTRIBUTIONS
(a) In any of the circumstances mentioned in Clause 10.1
(Subordination Events), until the Senior Discharge Date (i)
each Bridge Creditor and Intercompany Creditor will, upon
demand by the Security Agent, pay an amount equal to the
amount of all distributions in cash or in kind received in
consequence of such circumstances by, or by any agent or
trustee for, such Bridge Creditor or Intercompany Creditor (as
the case may be) in respect of the Bridge Debt or
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Intercompany Debt (as the case may be) to the Security Agent
and (ii) all payments or distributions in cash or in kind in
such circumstances which are payable or deliverable upon or
with respect to the High Yield Subordinated Guarantees or any
part thereof shall be paid or delivered to the Security Agent
in accordance with and to the extent required by the
provisions of Schedule 5, in either case, for application in
accordance with Clause 13 (Proceeds of Enforcement of
Security) and pending such application the Security Agent will
hold such distribution on trust for the beneficiaries entitled
thereto (according to the ranking of entitlements set out in
Clause 13 (Proceeds of Enforcement of Security)).
(b) In any of the circumstances mentioned in Clause 10.1
(Subordination Events) above, the trustee in bankruptcy,
liquidator, assignee or other person distributing the assets
of the Obligor concerned or their proceeds shall be directed
by the relevant creditor to pay distributions on the Bridge
Debt, and if required by the Senior Agent, Intercompany Debt
direct to the Security Agent until the Senior Debt is paid in
full.
(c) Prior to the Senior Discharge Date, the Bridge Creditors and
Intercompany Creditors will (after the occurrence of any of
the circumstances mentioned in Clause 10.1 (Subordination
Events) above) give all such notices and do all such things as
the Senior Agent or the Security Agent may reasonably request
to give effect to this Clause 10.4.
10.5 HIGH YIELD
Without prejudice to the other provisions of this Clause 10
(Subordination), the subordination provisions set out in Schedule 5
will apply in relation to the High Yield Subordinated Guarantees and
the High Yield Noteholders will be subject to the provisions thereof.
11. RESTRICTIONS ON ENFORCEMENT
11.1 RESTRICTIONS ON BRIDGE ENFORCEMENT ACTION
Until the Senior Discharge Date, without prejudice to Clause 10
(Subordination) except as set forth under Clause 12 (Permitted
Enforcement), unless the Majority Senior Creditors have previously
consented in writing none of the Bridge Creditors will take any
Enforcement Action in relation to the Bridge Debt or pursuant to the
Bridge Finance Documents, save to the extent that such Enforcement
Action is in respect of a payment permitted to be made under the Bridge
Finance Documents in accordance with Clause 7.1(a) (Permitted Bridge
Payments) which has not been made.
11.2 RESTRICTIONS ON HIGH YIELD ENFORCEMENT ACTION
Until the Senior Discharge Date, the High Yield Creditors will be
restricted from taking any Enforcement Action to the extent provided
for in Schedule 5 and the High Yield Subordinated Guarantees.
11.3 RESTRICTION ON ISSUER ENFORCEMENT ACTION
Until the Senior Discharge Date, without prejudice to Clause 10
(Subordination) and except as set forth under Clause 12 (Permitted
Enforcement), unless the Majority Senior Creditors have previously
consented in writing the Issuer shall not be entitled to take any
Enforcement Action pursuant to the Xxxxx/Issuer Loan Agreement or in
relation to any Indebtedness arising thereunder.
11.4 RESTRICTION ON OTHER INTRA-GROUP DEBT ENFORCEMENT ACTION
Until the Senior Discharge Date, without prejudice to Clause 10
(Subordination) and subject as provided in Clause 11.3 (Restriction on
Issuer Enforcement Action), unless the Majority Senior Creditors have
previously consented in writing or so request no Intercompany Creditor
shall be entitled
xviii
to take any Enforcement Action in relation to any Intercompany Debt
unless so required by the Security Agent in accordance with the
Security Documents.
11.5 RESTRICTION ON HEDGING LENDER ENFORCEMENT ACTION
Except as set forth under Clause 12 (Permitted Enforcement) and without
prejudice to exercise of any rights arising under this Deed or unless
the Majority Senior Creditors have previously consented in writing no
Hedging Lender shall be entitled to take any Enforcement Action in
relation to any Hedging Liabilities.
12. PERMITTED ENFORCEMENT
12.1 HEDGING ENFORCEMENT
(a) If the Senior Agent has not served notice under Clause 17.2
(Cancellation and Repayment) of the Senior Facilities
Agreement and a payment default occurs under any Hedging
Document, a Hedging Bank may terminate or close-out
transactions entered into by it under the Hedging Documents
(including, without limitation, giving any notice or making
any demand required for that purpose or declaring, an Early
Termination Date), provided that no other Enforcement Action
is taken.
(b) Each Hedging Bank will, if so requested by the Senior Agent,
following service of notice under Clause 17.2 (Cancellation
and Repayment) of the Senior Facilities Agreement, terminate
or close-out transactions entered into by it under the Hedging
Documents.
12.2 LEGAL PROCEEDINGS
The Bridge Creditors and the Issuer shall in addition to any other
permitted Enforcement Action be entitled to:
(a) take any action necessary to preserve the validity and
existence of their claims for the full amounts due to them
under the Bridge Finance Documents and the Xxxxx/Issuer loan
Agreement provided that such action shall not include any of
the action described at paragraphs (a) to (d) of the
definition of Enforcement Action; and
(b) (to the extent entitled by law) take action against any
creditor or creditors of any member of the Group or any agent,
trustee or receiver acting on behalf of such creditors to
challenge the basis on which any sale or disposal is to take
place or has taken place pursuant to powers granted to such
persons under any security documentation.
13. PROCEEDS OF ENFORCEMENT OF SECURITY
13.1 ORDER OF APPLICATION
The proceeds of enforcement of the security conferred by the Security
Documents or pursuant to the turnover provisions of the High Yield
Finance Documents shall be paid to the Security Agent and those
proceeds and all other amounts paid to the Security Agent pursuant to
the provisions of this Deed shall be applied in the following order:-
(a) first, in payment of all costs, charges, expenses and
liabilities (and all interest thereon as provided in the
Security Documents and this Deed) reasonably incurred by or on
behalf of the Security Agent and any receiver, attorney or
agent in connection with carrying out its duties and
exercising its powers and discretions under the Security
Documents and this Deed and the remuneration of the Security
Agent and every receiver under the Security Documents and this
Deed;
xix
(b) second, in payment of all costs and expenses reasonably
incurred by or on behalf of any other Senior Creditor;
(c) third, in payment to:
(i) the Senior Agent for application towards the balance
of the Senior Debt (other than the Hedging Debt) in
accordance with the provisions of the Senior
Facilities Agreement;
(ii) to the Hedging Lenders for application towards unpaid
and outstanding Hedging Liabilities;
each payment to be made pro-rata to the outstanding Senior
Debt (excluding the Hedging Liabilities) and the Hedging
Liabilities;
(d) (to the extent entitled thereto) to the High Yield Trustee for
the benefit of the High Yield Creditors;
(e) fourth, in payment of the surplus (if any) to the Obligor
concerned or other person entitled thereto.
13.2 APPROPRIATIONS
Each Senior Creditor (or any trustee or agent on their behalf) may
(subject to any provision of the Senior Finance Documents):-
(a) apply any moneys or property received under this Deed or from
an Obligor or from any other person against the Senior Debt in
such order as it sees fit;
(b) (if it so decides) apply any moneys or property received from
an Obligor or from any other person (other than money or
property received under the Senior Finance Documents or under
this Deed) against any liability other than the Senior Debt
owed to it; and
(c) (unless and until such monies or distributions in the
aggregate are sufficient to bring about the Senior Discharge
Date if otherwise applied in accordance with the provisions of
this Deed) hold in a suspense account (bearing interest at a
market rate usual for accounts of that type) any moneys or
distributions received from the Bridge Creditors or the
Intercompany Creditors or on account of the liability of any
Bridge Creditor or Intercompany Creditor (as appropriate)
under this Deed.
14. ENFORCEMENT OF SECURITY
14.1 ENFORCEMENT INSTRUCTIONS
(a) The Security Agent may refrain from enforcing the security
conferred by the Security Documents unless and until
instructed by the Majority Senior Creditors. Subject to such
security having become enforceable in accordance with the
terms of the Security Documents, the Security Agent shall act
in relation to the Security Documents in accordance with the
instructions of the Majority Senior Creditors or the Senior
Agent (acting on the instructions of the Majority Senior
Creditors) to enforce or refrain from enforcing the security
conferred by the Security Documents as long as it sees (or
they see) fit.
(b) If the Majority Senior Creditors do instruct the Security
Agent to enforce the security conferred by the Security
Documents, it shall do so (assuming the same to be
enforceable) in such manner as the Majority Senior Creditors
shall instruct or, in the absence or such instructions, as it
sees fit and, subject as required by applicable law, solely
having regard to the interests of the Senior Creditors.
Neither the Security Agent nor any Senior Creditor shall be
responsible to any other person for any failure to enforce or
the manner of enforcement of
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the Security Documents save to the extent of any such
obligation arising by reason of applicable law.
14.2 SALES BY SECURITY AGENT
If:-
(a) pursuant to an enforcement of any of the Security Documents,
the Security Agent on the instructions or with the consent of
the Majority Senior Creditors sells or otherwise disposes of
any asset; or
(b) the Obligor concerned sells or otherwise disposes of such
asset at the request of the Security Agent on the instructions
or with the consent of the Majority Senior Creditors after an
Event of Default under the Senior Facilities Agreement,
the Security Agent is hereby authorised:
(i) by each of the Senior Creditors to execute on behalf
of itself and each such Senior Creditor any release
of the security created by the Security Documents
over that asset; and
(ii) if such asset comprises all of the shares in the
capital of any Obligor, by each of the Senior
Creditors and the High Yield Creditors, to execute on
behalf of each Senior Creditor and each High Yield
Creditor a release of such Obligor from all past,
present and future liabilities (both actual and
contingent and including, without limitation, any
liability to any other Obligor under the Finance
Documents by way of contribution or indemnity) in its
capacity as a guarantor and to release any Security
Interests granted by such Obligor over any of its
assets pursuant to any of the Security Documents,
provided that:
(A) such release will become effective only at
the time of the completion of such sale or
other disposal and all indebtedness that is
pari passu or subordinated to the High Yield
Subordinated Guarantee is similarly
released; and
(B) such release is being made in consideration
that to the extent that the proceeds from
such sale or other disposal are in excess of
the claims of the Senior Creditors, such
excess, if any, will be applied first to
satisfy the obligations of the relevant High
Yield Subordinated Guarantor pursuant to the
corresponding High Yield Subordinated
Guarantee and (to the extent required by the
relevant creditor) any guarantee or other
indebtedness pari passu to such High Yield
Subordinated Guarantee and second, (to the
extent required by the relevant creditor) to
satisfy the indebtedness subordinated to
such High Yield Subordinated Guarantee.
The Senior Creditors and the High Yield Trustee (for itself and on
behalf of the other High Yield Creditors in accordance with the High
Yield Finance Documents) each undertake to execute such releases or
other documents as may be necessary to give effect to the above
mentioned releases) provided that in each such case the proceeds are to
be applied in the manner provided for in this Deed and provided further
that any such release of the obligations and liabilities of an Obligor
will not affect the obligations and liabilities of any other Obligor to
the Senior Creditors or the High Yield Creditors and provided further
that there shall be no release of the High Yield Senior Guarantees.
15. PRO RATA AND LOSS SHARING ARRANGEMENTS
15.1 SENIOR FINANCE PARTIES:
If any Senior Creditor (the "RECOVERING PARTY") receives an amount in
discharge of the Senior Debt (a "RECOVERY") after the date of service
of notice of acceleration under Clause 17.2 (Cancellation and
xxi
Repayment) of the Senior Facilities Agreement other than as a result of
a payment under Clause 13.1 (Order of Application) then:
(a) within two Business Days of receipt of the Recovery, the
Recovering Party shall pay to the Security Agent an amount
equal (or equivalent) to such Recovery;
(b) the Security Agent shall redistribute such payment in
accordance with Clause 13.1 (Order of Application); and
(c) save for any receipt by the Recovering Party as a result of
the operation of paragraph (b) above, as between the relevant
Obligor and the Recovering Party the Recovery shall be treated
and deemed as not having been paid.
Each Senior Creditor shall notify the Security Agent promptly of any
such Recovery by it other than by payment through the Security Agent.
If any Recovery subsequently has to be wholly or partly refunded by the
Recovering Party which paid an amount equal thereto to the Security
Agent under Clause 15.1(a), each Senior Creditor to which any part of
that amount was distributed shall, on request from the Recovering
Party, repay to the Recovering Party that Senior Creditor's pro rata
share of the amount which has to be refunded by the Recovering Party.
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15.2 INDEMNITY
The Obligors will fully indemnify each of the Senior Creditors on
demand for the amount of any payment or distribution in accordance with
this Clause 15 to the extent that any such payment or distribution
would otherwise result in the reduction or discharge of the Senior
Debt.
16. MISCELLANEOUS
16.1 INFORMATION
Each Obligor authorises each of the Senior Creditors, the Bridge
Creditors and the High Yield Creditors to disclose to each other and to
shareholders in any Obligor and any member of the Group all information
relating to that Obligor, its Subsidiaries or related entities coming
into the possession of any of them in connection with the Senior
Finance Documents, the Hedging Documents, the Bridge Finance Documents
or the High Yield Finance Documents.
16.2 NON-OBJECTION - SENIOR CREDITORS
None of the Bridge Creditors or the High Yield Creditors (in their
capacities as such) shall have any remedy against any of the Senior
Creditors by reason of any transaction entered into between the Senior
Creditors (or any of them) or the Senior Agent or Security Agent on
their behalf and any member of the Group or any requirement or
condition imposed by or on behalf of the Senior Creditors on any member
of the Group which violates or is or causes an event of default or
default under any of the Bridge Finance Documents and the High Yield
Finance Documents provided that such transaction, requirement or
condition is made in accordance with the terms of this Deed.
16.3 WARRANTIES PARTIES TO THE INTERCREDITOR DEED
Each party to this Deed hereby represents and warrants to and for the
benefit of each of the other parties to this Deed that:-
(a) it is duly incorporated (if a corporate person) or duly
established (in any other case) and validly existing under the
laws of the place of its incorporation or formation; and
(b) it has all necessary consents, approvals, authorisations and
legal capacity to enter into this Deed and the other
Transaction Documents to which it is a party and subject to
the reservations, this Deed constitutes its legal, valid and
binding obligations.
16.4 VALIDITY
The Senior Creditors hereby agree that they shall not bring any actions
to challenge the legality or validity of the High Yield Senior
Guarantees or the High Yield Subordinated Guarantees and the High Yield
Trustee (on behalf of itself and the other High Yield Creditors) agrees
that the High Yield Creditors shall not bring any action to challenge
the legality or validity of the guarantees contained in the Senior
Finance Documents and/or the Security Documents.
17. SUBROGATION
17.1 SUBROGATION OF BRIDGE CREDITORS AND HIGH YIELD CREDITORS
If the Senior Debt is wholly or partially paid out of any proceeds
received in respect of or on account of the Bridge Debt or the
Xxxxx/Issuer Loan Agreement owing to one or more Bridge Creditors or
the Issuer, as the case may be, those creditors will to that extent be
subrogated to the Senior Debt so paid (and all security and guarantees
for that Senior Debt) but the rights of subrogation so arising cannot
(and shall not) be exercised before the Senior Discharge Date. After
the Senior Discharge Date, to the
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extent that such creditors are entitled to exercise rights of
subrogation in accordance with the foregoing, each Senior Creditor
(subject to it being indemnified, by cash collateral if so requested,
to its reasonable satisfaction against any resulting costs, expenses
and liabilities) will give such assistance to enable such rights so to
be exercised as the Bridge Creditors or the Issuer, as the case may be,
may reasonably request. The High Yield Creditors shall have the
subrogation rights contained in Schedule 5.
17.2 NON-SUBROGATION
Unless and save to the extent otherwise agreed by the Senior Agent, the
Intercompany Creditors (other than the Issuer) will not under any
circumstances be subrogated to any of the rights of the Senior
Creditors or any security arising under the Senior Finance Documents.
18. PROTECTION OF SUBORDINATION
18.1 CONTINUING SUBORDINATION
The subordination provisions in this Deed constitute a continuing
subordination and benefit to the ultimate balance of the Senior Debt
regardless of any intermediate payment or discharge of the Senior Debt,
the Bridge Debt or the High Yield Debt in whole or in part.
18.2 WAIVER OF DEFENCES
The subordination in this Deed and the obligations of each Bridge
Creditor, High Yield Creditor, Intercompany Creditor and Obligor under
this Deed (without prejudice to the other provisions of this Deed) will
not be affected by any act, omission, matter or thing which, but for
this provision, would reduce, release or prejudice the subordination or
any of those obligations in whole or in part, including without
limitation:-
(a) any time, indulgence or waiver granted to, or composition
with, any Obligor or any other person; or
(b) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights or remedies against, or security over
assets of, any Obligor or other person; or
(c) any variation or replacement of any Senior Finance Document,
Bridge Finance Document, High Yield Finance Document or other
document; or
(d) any unenforceability, illegality, invalidity or frustration of
any obligation of an Obligor or security under the Senior
Finance Documents, the Bridge Finance Documents or the High
Yield Finance Documents or any other document or security; or
(e) any postponement, discharge, reduction, non-provability or
other similar circumstance affecting any obligation of any
Obligor under any Senior Finance Document, Bridge Finance
Document or High Yield Finance Document resulting from any
insolvency, liquidation or dissolution proceedings or from any
law, regulation or order;
(f) the refinancing, renewal, extension, amendment or variation or
increase of the Senior Debt.
18.3 VARIATIONS
Without limiting the generality of Clause 18.2 above (but without
prejudice to the other provisions of this Deed), the Senior Creditors
may, at any time and from time to time, without the consent of the
Bridge Creditors or the High Yield Creditors without incurring
responsibility to the Bridge Creditors or
xxiv
the High Yield Creditors and without impairing or releasing the
provisions of this Deed do any one or more of the following:-
(a) change the manner, place, terms or time of payment of, or
renew or alter, the Senior Debt or any instrument evidencing
the same or any agreement under which the Senior Debt is
outstanding;
(b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt;
(c) release any person liable in any manner for the collection or
payment of Senior Debt; and
(d) exercise or refrain from exercising any rights against any
guarantors of the Senior Debt and any other person.
19. PRESERVATION OF DEBT
Notwithstanding any term of this Deed postponing, subordinating or
preventing the payment of any of the Bridge Debt, High Yield Debt or
Intercompany Debt, the Bridge Debt, High Yield Debt or Intercompany
Debt concerned shall solely as between the Obligors, the Bridge
Creditors, the High Yield Creditors, the Intercompany Creditors and the
Intercompany Debtors be deemed to remain owing or due and payable in
accordance with the terms of the Bridge Finance Documents, the High
Yield Finance Documents or the Intercompany Documents, as the case may
be, in order that interest and default interest and indemnity payments
will accrue thereon in accordance with and to the extent provided for
in the Bridge Finance Documents, the High Yield Finance Documents and
the Intercompany Documents respectively. No delay in exercising rights
and remedies under any of the Bridge Finance Documents, the High Yield
Finance Documents or any Intercompany Document by reason of any term of
this Deed postponing, restricting or preventing such exercise shall
operate as a permanent waiver of any of those rights and remedies.
20. POWER OF ATTORNEY
By way of security for the obligations of each Bridge Creditor and each
Intercompany Creditor under this Deed, each Bridge Creditor and each
Intercompany Creditor irrevocably appoints (to the extent it is legally
able to do so) the Senior Agent as its attorney to do anything which
the Bridge Creditor or Intercompany Creditor (a) has authorised any
Senior Creditor to do under this Deed and (b) is required and legally
able to do by this Deed but has failed to do.
21. CHANGES TO THE PARTIES
21.1 SUCCESSORS AND ASSIGNS
This Deed is binding on the successors and assigns of the parties
hereto.
21.2 OBLIGORS
No Obligor may assign or transfer any of its rights (if any) or
obligations under this Deed.
21.3 NEW OBLIGORS
If any member of the Group (a "NEW OBLIGOR") guarantees or otherwise
becomes liable for any Senior Debt, Bridge Debt or High Yield Debt or
grants security for any thereof the Company will procure that such New
Obligor will become a party hereto as an Obligor by the execution of an
Obligor deed of accession substantially in the form set out in Schedule
2.
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21.4 FINANCE PARTIES
Subject as provided in Clause 21.5 (Transfers) until the Senior
Discharge Date, no Senior Creditor and no Bridge Creditor will assign,
transfer or dispose of any of the Senior Debt or Bridge Debt owing to
it or transfer by novation or otherwise any of its rights or
obligations under the Senior Finance Documents or Bridge Finance
Document to any person.
21.5 TRANSFERS
A Senior Creditor or Bridge Creditor (in this capacity the
"Transferor") may assign or otherwise transfer all or any part of its
rights and/or obligations under the Senior Finance Documents or Bridge
Finance Documents to any person (a "Transferee") which has executed an
accession deed in the form provided for in Schedule 3 pursuant to which
the Transferee agrees to be bound by all of the terms of this Deed as
if it had originally been party to this Deed as a Senior Creditor or
Bridge Creditor (as the case may be).
21.6 HIGH YIELD TRUSTEE
The High Yield Trustee will not assign, transfer or dispose of any of
its rights or obligations under any Senior Finance Document to any
person, unless that person agrees with the parties hereto that it is
bound by all the terms of this Deed as the High Yield Trustee by
executing a deed of accession substantially in the form of Schedule 4.
22. HEDGING LENDERS
22.1 HEDGING DOCUMENTS
Each Hedging Lender will promptly provide to the Security Agent copies
of the relevant Hedging Documents to which it is a party. The Hedging
Documents entered into by the Hedging Lenders shall:-
(a) be based on the 1992 ISDA Master Agreement; and
(b) provide that in the event of termination or closing-out of any
hedging transaction entered into under the terms of those
Hedging Documents for whatever reason, both the relevant
Hedging Lender and the relevant Obligor may be obliged to make
a compensating payment (with the intent that the defaulting
party under the Hedging Documents will be entitled to receive
payment under the Hedging Documents if the application of the
termination provisions of the Hedging Documents results in a
negative number) and that any provision which would entitle
the relevant Hedging Lender to refuse to make any payment
which would otherwise be due from it shall be disapplied; and
(c) provide that the relevant Hedging Lender will if so requested
by the Senior Representative under Clause 12.1 (Hedging
Enforcement Action) following a declaration under Clause 17.2
(Cancellation and Repayments) of the Senior Facilities
Agreement be entitled to terminate or close-out any hedging
transaction entered into under the relevant Hedging Documents;
and
(d) not elect for the application of Automatic Early Termination
(as defined in the Hedging Documents).
22.2 AMENDMENTS:
No Hedging Lender shall amend or vary the Hedging Documents to which it
is party:-
(a) so that such Hedging Documents cease to comply with the
requirements of this Clause 22; or
(b) in a manner which is materially prejudicial to the interests
of the Senior Creditors under the Senior Finance Documents,
xxvi
in each case without the consent of the Security Agent acting on the
instructions of the Majority Senior Creditors (for this purpose
excluding such Hedging Lender in its capacity as such).
23. AMENDMENTS TO FINANCE DOCUMENTS
23.1 CHANGES TO BRIDGE FINANCE DOCUMENTS
Until the Senior Discharge Date, except as the Majority Senior
Creditors have expressly consented in writing, no Obligor or Bridge
Creditor will amend, vary or supplement or allow to be superseded any
provision of the Bridge Finance Documents (or give any waiver, release
or consent having the same commercial effect):-
(a) relating to the entitlement of the Bridge Creditors to receive
guarantees and/or Security Interests from members of the
Group; or
(b) if to do so would cause the terms of the Bridge Finance
Documents relating to subordination, rate and time for payment
of interest or scheduled repayment dates to change; or
(c) which would otherwise be adverse to the interests of the
Senior Creditors as to which a certificate of the Senior Agent
(acting reasonably) shall be conclusive.
23.2 CHANGES TO HIGH YIELD FINANCE DOCUMENTS
Prior to the Senior Discharge Date no Obligor will, without the prior
written consent of the Senior Agent (on the instructions of the
Majority Senior Creditors), amend any provision of the High Yield
Finance Documents (or give any waiver, release or consent having the
same commercial effect):-
(a) relating to the entitlement of the High Yield Noteholders to
receive guarantees and/or Security Interests from members of
the Group; or
(b) if to do so would cause the terms of the High Yield Finance
Documents relating to subordination, rate and time for payment
of interest or scheduled repayment dates to change; or
(c) which would otherwise be adverse to the interests of the
Senior Creditors as to which a certificate of the Senior Agent
(acting reasonably) shall be conclusive.
23.3 CHANGES TO INTERCOMPANY DOCUMENTS
Except as the Senior Agent (on the instructions of the Majority Senior
Creditors) has previously consented in writing, no Obligor will amend,
vary, waive, supplement or allow to be superseded any provision of the
Xxxxx/Issuer Loan Agreement or any other Intercompany Document (or give
any waiver, release or consent having the same commercial effect). The
Security Agent shall be entitled to agree any changes required to the
Xxxxx/Issuer Loan Agreement upon the refinancing of the Bridge Debt
with the High Yield Notes provided that such changes shall not
adversely affect the position of the Senior Creditors.
23.4 CHANGES TO THIS DEED
The Security Agent is hereby authorised by the Senior Creditors to
agree any amendments which are not of a material nature to this Deed
and may be required in connection with the accession of the High Yield
Trustee of this Deed and to enter into any document required to give
effect to such an amendment on behalf of itself and the Senior
Creditors.
xxvii
24. STATUS OF OBLIGORS
24.1 PRIORITIES
Each of the Obligors joins in this Deed for the purpose of
acknowledging the priorities, rights and obligations recorded in this
Deed and undertakes with each of the other parties hereto to observe
the provisions of this Deed at all times and not in any way to
prejudice or affect the enforcement of such provisions or do or suffer
anything which would be inconsistent with the terms of this Deed.
24.2 NO RIGHTS OF OBLIGORS
None of the Obligors shall (save as provided in Clause 7 (Permitted
Payments)) have any rights hereunder and none of the undertakings
herein contained on the part of the Senior Creditors or the Bridge
Creditors or the High Yield Creditors are given (or shall be deemed to
have been given) to, or for the benefit of, the Obligors.
25. NOTICES
25.1 MODE OF SERVICE
Any notice or other communication to be served under or in connection
with this Deed shall, unless otherwise stated, be made in writing and
served by letter, telex or facsimile to the relevant party at its
address, telex or facsimile number shown immediately after its name on
the signature page of this Deed or set out under its name in Schedule 1
or set out in the accession document by which it became party hereto or
such other address or number notified by it to the other parties to
this Deed.
25.2 DEEMED SERVICE
Any notice or other communication served by post will, unless otherwise
stated, be deemed served 48 hours after posting, if served in the
United Kingdom, and 5 days after posting if served overseas by air
mail, or on delivery if delivered personally or by courier. A notice or
other communication sent by telex or facsimile transmission will,
unless otherwise stated, be deemed served at the time of transmission
unless served on a day which is not a Business Day or after 5 pm London
time in which case it will be deemed served at 9 am on the following
Business Day.
25.3 PROOF OF SERVICE
In proving service of any notice or other communication it will be
sufficient to prove:-
(a) in the case of a letter, that such letter was properly stamped
or franked, addressed and placed in the post or in the case of
personal delivery, was left at the correct address; and
(b) in the case of a telex or facsimile transmission, that such
telex or facsimile was duly transmitted to the telex or
facsimile number, as appropriate, of the addressee referred to
in Clause 25.1(a) (Mode of Service) above.
26. NO IMPLIED WAIVERS
26.1 FAILURE TO EXERCISE RIGHTS
No failure or delay by any party in exercising any right, power or
privilege under this Deed will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude
any other or further exercise thereof or the exercise of any other
right, power or privilege.
xxviii
26.2 CUMULATIVE RIGHTS
The rights and remedies provided in this Deed are cumulative and not
exclusive of any rights and remedies provided by law.
26.3 GRANT OF WAIVERS
A waiver given or consent granted by any party under this Deed will be
effective only if given in writing and then only in the instance and
for the purpose for which it is given.
27. PARTIAL INVALIDITY
If any provision of this Deed is or becomes invalid, illegal or
unenforceable in any respect in any jurisdiction, that shall not affect
the legality, validity or enforceability of the remaining provisions in
that jurisdiction or that or any other provision in any other
jurisdiction.
28. GOVERNING LAW AND SUBMISSION TO JURISDICTION
28.1 GOVERNING LAW
This Deed (and any dispute, controversy, proceedings or claims of
whatever nature arising out of or in any way relating to this Deed)
shall be governed by and construed in all respects in accordance with
English law.
28.2 SUBMISSION TO JURISDICTION
For the benefit of each other party, each party irrevocably submits to
the jurisdiction of the courts in England for the purpose of hearing
and determining any dispute arising out of this Deed and for the
purpose of enforcement of any judgement against its assets.
28.3 FREEDOM OF CHOICE
The submission to the jurisdiction of the courts referred to in Clause
28.2 (Submission to Jurisdiction) shall not (and shall not be construed
so as to) limit the right of any party to take proceedings against any
other party in the courts of any country in which any other party has
assets or in any other court of competent jurisdiction nor shall the
taking of proceedings in any one or more jurisdictions preclude the
taking of proceedings in any other jurisdiction (whether concurrently
or not) if and to the extent permitted by applicable law. Nothing
herein shall prevent the High Yield Trustee or any High Yield Creditor
from initiating any suit, action or proceeding with respect to the High
Yield Finance Documents in any court, including U.S. Federal or state
court located in the City of New York.
28.4 PROCESS AGENT
Each Obligor which is not a company incorporated in England and Wales
hereby irrevocably and unconditionally appoints and agrees to maintain
the Parent as its agent in England to receive, for and on behalf of
itself, service of process in such jurisdiction in any suit, action or
proceeding (together "PROCEEDINGS") in relation to such dispute or
enforcement.
28.5 SERVICE
Each party hereby irrevocably and unconditionally:-
(a) waives any objection it may now or at any time have on any
grounds whatsoever to the laying of venue of any Proceedings,
in any of the aforesaid courts;
xxix
(b) agrees that failure by any such process agent to give notice
of the process to it shall not impair the validity of such
service or of any judgment based on that service;
(c) agrees that nothing in this Deed shall affect the right to
serve process in any other manner permitted by law;
(d) to the fullest extent permitted by law, waives any right it
may have in any jurisdiction to have any Proceedings take the
form of a trial by jury; and
(e) agrees that a judgment or order of an English court in
connection with this Deed is conclusive and binding on it and
maybe enforced against it in the courts of any other
jurisdiction.
29. PERPETUITIES
The perpetuity period for each trust created pursuant to this Deed
shall be eighty (80) years from the date hereof.
30. COUNTERPARTS
This Deed may be executed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS whereof this Deed has been duly executed as a deed the day and year
first before written.
xxx
SCHEDULE 1
PART A
THE OBLIGORS
INEOS ACRYLICS LIMITED
INEOS ACRYLICS UK PARENTCO 2 LIMITED
INEOS ACRYLICS UK PARENTCO 3 LIMITED
INEOS ACRYLICS UK XXXXX LIMITED
INEOS ACRYLICS UK BONDCO LIMITED
INEOS ACRYLICS UK OVERSEAS HOLDCO 1 LIMITED
INEOS ACRYLICS UK PARTNERCO1 LIMITED
INEOS ACRYLICS UK PARTNERCO2 LIMITED
INEOS ACRYLICS UK LIMITED
INEOS ACRYLICS UK TRADER HOLDCO LIMITED
INEOS ACRYLICS US HOLDCO LIMITED
INEOS ACRYLICS INC.
INEOS ACRYLICS HOLDCO INC.
INEOS ACRYLICS DUTCH OVERSEAS HOLDCO BV
PART B
BRIDGE CREDITORS
PART I
SHORT TERM FACILITY
CCP VI Syndication Limited
CAF Syndication Limited
CHEF Nominees Limited
PART II
LONG TERM FACILITY
Charterhouse Development Limited
Fund Nominees Limited
Charterhouse General Partners (VI) Limited
CCP VI L.P. No. 1.1 via its general partner,
Charterhouse General Partners (VI) Limited
CCP VI L.P. No. 1.2 via its general partner,
Charterhouse General Partners (VI) Limited
CCP VI L.P. No. 1.3 via its general partner,
Charterhouse General Partners (VI) Limited
CCP VI L.P. No. 2.1 via its general partner,
Charterhouse General Partners (VI) Limited
CCP VI L.P. No. 2.2 via its general partner,
Charterhouse General Partners (VI) Limited
CCP VI Auxiliary L.P. No. 1 via its general partner,
Charterhouse General Partners (VI) Limited
CCP VI Auxiliary L.P. No. 2 via its general partner,
Charterhouse General Partners (VI) Limited
xxxi
SCHEDULE 2
DEED OF ACCESSION FOR NEW OBLIGORS
THIS DEED dated [ o ] is supplemental to an intercreditor deed (the
"INTERCREDITOR DEED") dated [o], between, inter alia, [ o ] Limited as the
Parent and certain of its Subsidiaries and Deutsche Bank AG as the Senior Agent
and the Security Agent.
Words and expressions defined in the Intercreditor Deed have the same meaning
when used in this Deed.
[NAME OF NEW OBLIGOR] hereby agrees with each other person who is or who becomes
a party to the Intercreditor Deed that with effect on and from the date hereof
it will be bound by the Intercreditor Deed as a
*[Borrower/Guarantor/Intercompany Creditor/Intercompany Debtor] as if it had
been party originally to the Intercreditor Deed in that capacity.
The address for notices of [name of new Obligor] for the purposes of Clause 25
(Notices) of the Intercreditor Deed is:
[
].
This Deed is governed by English law.
EXECUTED as a deed )
for [o] by [o] )
and [o] )
Director
Director/Secretary
*[ ] Delete as applicable
xxxii
SCHEDULE 3
DEED OF ACCESSION FOR CREDITORS
THIS DEED dated [o], is supplemental to an intercreditor deed (the
"INTERCREDITOR DEED") dated [o], between, inter alia, [o] Limited as the Parent
and certain of its Subsidiaries and Deutsche Bank AG as the Senior Agent and the
Security Agent.
Words and expressions defined in the Intercreditor Deed have the same meaning
when used in this Deed.
[NAME OF NEW SENIOR CREDITOR OR BRIDGE CREDITOR OR HEDGING LENDER] hereby agrees
with each other person who is or who becomes a party to the Intercreditor Deed
that with effect on and from the date hereof it will be bound by the
Intercreditor Deed as a *[Senior Creditor/Bridge Creditor/Hedging Lender] as if
it had been party originally to the Intercreditor Deed in that capacity.
The address for notices of [the new Creditor] for the purposes of Clause 25
(Notices) of the Intercreditor Deed is:
[
].
This Deed is governed by English law.
[EXECUTED UNDER SEAL]
*[ ] Delete as applicable.
+[ ] Include only for new Hedging Lenders.
xxxiii
SCHEDULE 4
DEED OF ACCESSION FOR HIGH YIELD TRUSTEE
THIS DEED dated [o], is supplemental to an intercreditor deed (the
"INTERCREDITOR DEED") dated [o], between, inter alia, [o] Limited as the Parent
and certain of its Subsidiaries and Deutsche Bank AG as the Senior Agent and the
Security Agent.
Words and expressions defined in the Intercreditor Deed have the same meaning
when used in this Deed.
[NAME OF HIGH YIELD TRUSTEE] hereby agrees with each other person who is or who
becomes a party to the Intercreditor Deed that with effect on and from the date
hereof it will be bound by the Intercreditor Deed as the High Yield Trustee as
if it had been an original party to the Intercreditor Deed in that capacity.
The address for notices of [High Yield Trustee] for the purposes of Clause 28
(Notices) of the Intercreditor Deed is:-
[
]
This Deed is governed by English law.
[Execution under seal]
xxxiv
SCHEDULE 5
PART 1 - SUMMARY OF HIGH YIELD GUARANTEE AND SUBORDINATION PROVISIONS
1. The High Yield Notes will receive senior unsecured guarantees from
ParentCo One and ParentCo Two not subject to standstill or
subordination provisions.
2. The Senior Creditors will receive fixed and floating security on all
the assets of ParentCo Two, ParentCo Three, each of the other High
Yield Subordinated Guarantors and various of their Subsidiaries.
3. The High Yield Notes will receive unsecured senior subordinated
guarantees from ParentCo Three and the other High Yield Subordinated
Guarantors.
4. Each High Yield Subordinated Guarantee will be subordinated to the
Senior Debt incurred by such High Yield Subordinated Guarantor to the
Senior Creditors as set forth herein.
5. If a High Yield Subordinated Guarantor is the subject of a disposal
following an Event of Default, the High Yield Subordinated Guarantee
given by such High Yield Subordinated Guarantor and all liabilities
(actual or contingent) thereunder are to be released on notice by the
Senior Agent to the High Yield Trustee to enable such High Yield
Subordinated Guarantor to be disposed of to the relevant purchaser free
of any liability to the High Yield Creditors. Any such release of a
High Yield Subordinated Guarantee will only be made if any
corresponding guarantee of the Senior Creditors and all other
obligations for or in respect of Senior Debt or such High Yield
Subordinated Guarantor are also released at the time of the relevant
disposal and provided that such release is made in accordance with
Clause 14.2 (Sales by Security Agent) of this Deed.
6. The terms of each High Yield Subordinated Guarantee will record that no
amount shall, until the Senior Discharge Date, become due by the
relevant High Yield Subordinated Guarantor to any High Yield Finance
Party under that High Yield Subordinated Guarantee (whether before or
after demand has been made under any such High Yield Subordinated
Guarantee) and therefore no Enforcement Action may be taken in respect
of that High Yield Subordinated Guarantee unless and until:-
(a) an event of default relating to the failure to pay an amount
of principal or interest due in respect of the High Yield
Notes has occurred (the date of such event of default, the
"PAYMENT DEFAULT DATE"); and
(b) the High Yield Standstill Period has expired.
For these purposes, the "HIGH YIELD STANDSTILL PERIOD" will be the
period commencing on the Payment Default Date and ending on the first
to occur of-
(i) the expiry of 179 days from the Payment Default Date;
and
(ii) the date upon which an order is made for the
dissolution or winding-up of that High Yield
Subordinated Guarantor; and
(iii) the date upon which the shareholders of that High
Yield Subordinated Guarantor pass a valid resolution
for the dissolution or winding-up of such High Yield
Subordinated Guarantor;
unless the Senior Creditors shall have made demand pursuant to a
guarantee of Senior Debt of any holding company of the relevant High
Yield Subordinated Guarantor in which event the High Yield Standstill
Period will not expire until such time as the Senior Discharge Date
occurs or the date upon which one of the events described in paragraphs
(ii) or (iii) above occurs.
The High Yield Creditors shall in addition be entitled to:
xxxv
(a) take any action necessary to preserve the validity and
existence of their claims for the full amounts due to them
under the High Yield Subordinated Guarantees provided that
such action shall not include any of the actions described
under paragraphs (a) to (d) of the definition of Enforcement
Action; and
(b) (to the extent entitled by law) take action against any
creditor or creditors of any member of the Group, agent,
trustee or receiver acting on behalf of such creditors to
challenge the basis on which any sale or disposal is to take
place pursuant to powers granted to such persons under any
security documentation;
(c) bring legal proceedings against any person in connection with
any securities law violation or common law fraud.
xxxvi
PART 2 - AGREED FORM OF HIGH YIELD INDENTURE SUBORDINATION PROVISIONS
SUBORDINATION OF HIGH YIELD SUBORDINATED GUARANTEE OBLIGATIONS
1. GUARANTEE OBLIGATIONS SUBORDINATED TO SENIOR DEBT
The High Yield Subordinated Guarantor covenants and agrees, and each
Holder of a Note, by his acceptance thereof likewise covenants and
agrees that, to the extent and in the manner hereinafter set forth in
this Article, the Indebtedness represented by the Notes and the payment
of the principal of premium, if any, and interest on each and all of
the Notes and all other Indenture obligations are hereby expressly made
subordinated and subject in right of payment as provided in this
Article to the prior payment in full, in cash, or in any other form as
acceptable to the holders of the Senior Debt.
This Article shall constitute a continuing offer to all persons who, in
reliance upon such provisions, become holders of, or continue to hold
Senior Debt and such provisions are made for the benefit of the holders
of Senior Debt and such holders are made obligees hereunder and they or
each of them may enforce such provisions.
2. SUSPENSION OF PAYMENT WHEN SENIOR DEBT IS IN DEFAULT
(a) Unless Section 3 shall be applicable, upon the occurrence of,
any default in the payment of principal of, premium, if any,
or interest, on any Senior Debt (a "Payment Default") no
payment (other than any payments previously made under the
Defeasance and Covenant Defeasance provisions of this
Indenture) or distribution of any assets of the High Yield
Subordinated Guarantor of any kind or character (excluding
Permitted Junior Securities) shall be made by the High Yield
Subordinated Guarantor on account of principal of, premium, if
any, or interest on, the Notes or any other indenture
obligations or on account of the purchase, redemption,
defeasance (whether under the Defeasance or Covenant
Defeasance provisions of this Indenture) or other acquisition
of or in respect of the Notes unless and until such Payment
Default shall have been cured or waived or shall have ceased
to exist or the Senior Debt with respect to which such Payment
Default shall have occurred shall have been discharged or paid
in full in cash or in any other form as acceptable to the
holders of Senior Debt, after which the High Yield
Subordinated Guarantor shall resume making any and all
required payments in respect of the Notes, including any
missed payments.
(b) Unless Section 3 shall be applicable, upon (1) the occurrence
of any event (other than a Payment Default) the occurrence of
which entitles one or more persons to accelerate the maturity
of any Senior Debt (a "Non-payment Default") and (2) receipt
by the High Yield Trustee and the High Yield Subordinated
Guarantor from the Security Agent or any representative
selected by a majority of the Senior Debt (the "Senior
Representative") of written notice of such occurrence, no
payment (other than any payments previously made under the
Defeasance and Covenant Defeasance provisions of this
Indenture) or distribution of any assets of the High Yield
Subordinated Guarantor of any kind or character (excluding
Permitted Junior Securities) shall be made by the High Yield
Subordinated Guarantor on account of any principal of,
premium, if any, or interest on, the Notes or any other
Indenture obligations or on account of the purchase,
redemption, defeasance or other acquisition of or in respect
of Notes for a period ("Payment Blockage Period") commencing
on the date of receipt by the High Yield Trustee of such
notice unless and until the earliest of (subject to any
blockage of payments that may then or thereafter be in effect
under subsection (a) of this Article) (x) 179 days having
elapsed since receipt of such written notice by the High Yield
Trustee (provided any Senior Debt as to which notice was given
shall theretofore have not been accelerated), (y) the date
such Non-payment Default and all other Non-payment Defaults as
to which notice is also given after such period is initiated
shall have been cured or waived or shall have ceased to exist
or the Senior Debt related thereto shall have been discharged
or paid in full in cash or in any other form as acceptable to
the holder of Senior Debt, or (z) the
xxxvii
date on which such Payment Blockage Period (and all
Non-payment Defaults as to which notice is given after such
Payment Blockage Period is initiated) shall have been
terminated by written notice to the High Yield Subordinated
Guarantor or the High Yield Trustee from the Senior
Representative, after which, in each such case, the High Yield
Subordinated Guarantor shall resume making any and all
required payments in respect of the Notes, including any
missed payments. Notwithstanding any other provision of this
Indenture, in no event shall a Payment Blockage Period extend
beyond 179 days from the date of the receipt by the High Yield
Subordinated Guarantor or the High Yield Trustee of the notice
referred to in clause (2) of this paragraph (b) (the "Initial
Blockage Period"). Any number of notices of Non-payment
Defaults may be given during the Initial Blockage Period;
provided that during any 365-day consecutive period only one
Payment Blockage Period during which payment of principal of,
or interest on, the Notes may not be made may commence and the
duration of the Payment Blockage Period may not exceed 179
days. No Non-payment Default with respect to Senior Debt which
existed or was continuing on the date of the commencement of
any Payment Blockage Period will be, or can be, made the basis
for the commencement of a second Payment Blockage Period,
whether or not within a period of 365 consecutive days, unless
such default shall have been cured or waived for a period of
not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, the High
Yield Subordinated Guarantor shall make any payment to the
High Yield Trustee or the holder of any Notes prohibited by
the foregoing provisions of this Section, then and in such
event such payment shall be paid over and delivered forthwith
to a Senior Representative of the holders of the Senior Debt
or as a court of competent jurisdiction shall direct.
3. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or a bankruptcy case or proceeding,
or any reorganisation, insolvency, receivership, liquidation,
administration or other similar proceeding in connection therewith,
relative to the High Yield Subordinated Guarantor or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other
winding up of the High Yield Subordinated Guarantor, whether voluntary
or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other
marshalling of assets or liabilities of the High Yield Subordinated
Guarantors, then and in any such event:
(1) the holders of Senior Debt shall be entitled to receive
payment in full in cash or in any other form acceptable to the
holders of Senior Debt of all Senior Debt of all amounts due
or in respect of all Senior Debt before the Holders of the
Notes are entitled to receive any payment or distribution of
any kind or character (excluding Permitted Junior Securities)
on account of the principal of, premium, if any, or interest
on the Notes or any other Indenture obligations; and
(2) any payment or distribution of assets of such High Yield
Subordinated Guarantor of any kind or character, whether in
cash, property or securities (excluding Permitted Junior
Securities), by set-off or otherwise to which the Holders or
the High Yield Trustee would be entitled but for the
provisions of this Article shall be paid by the liquidating
trustee or agent or other person making such payment or
distribution whether, trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of
Senior Debt or the Senior Representative or to their trustee
or trustees under any indenture under which any instruments
evidencing any Senior Debt may have been issued, ratably
according to the aggregate amounts remaining unpaid on account
of the Senior Debt held or represented by each to the extent
necessary to make payment in full in cash or in any other form
acceptable to the holders of Senior Debt of all Senior Debt
remaining unpaid after giving effect to any concurrent payment
or distribution to the holders of Senior Debt; and
(3) in the event that, notwithstanding the foregoing provision of
this Section, the High Yield Trustee or the Holder of any
Notes shall have received any payment or distribution of
assets of
xxxviii
the High Yield Subordinated Guarantor of any kind or
character, whether in cash, property or securities, in respect
of principal, premium, if any, and interest on the Notes or
any other Indenture obligations before all Senior Debt is paid
in full then and in such event such payment on distribution
(excluding Permitted Junior Securities) shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent, or other
person making payment or distribution of assets of the High
Yield Subordinated Guarantor for application to the payment of
all Senior Debt remaining unpaid to the extent necessary to
pay all Senior Debt in full in cash or any other form as
acceptable to the holders of Senior Debt, after giving effect
to any concurrent payment or distribution to or for the
holders of Senior Debt.
The consolidation of the High Yield Subordinated Guarantor with, or the
merger of the High Yield Subordinated Guarantor with or into another
person or the liquidation or dissolution of the High Yield Subordinated
Guarantor following the sale, assignment, conveyance, transfer, lease
or other disposal of all or substantially all of the High Yield
Subordinated Guarantor's properties or assets to another person upon
the terms and conditions set forth in the Consolidation, Merger and
Transfer provisions of this Indenture shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the
High Yield Subordinated Guarantor for the purposes of this Section if
the person formed by such consolidation or the surviving entity of such
merger or the person which acquires by sale, assignment, conveyance,
transfer, lease or other disposal of all or substantially all of the
High Yield Subordinated Guarantor's properties or assets, as the case
may be, shall, as part of such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposal, comply with the
conditions set forth in the Consolidation, Merger and Transfer
provisions of this Indenture.
4. RELIANCE ON SUBORDINATION
Each Holder of a Note by purchasing or accepting a Note waives any and
all notice of the creation, modification, renewal, extension or accrual
of any Senior Debt and notice of or proof of reliance by any holder or
owner of Senior Debt upon this Article; and the Senior Debt shall
conclusively be deemed to have been created, contracted or incurred in
reliance upon this Article and the Intercreditor Deed, and all dealings
between the High Yield Subordinated Guarantor and the holders and
owners of the Senior Debt shall be deemed to have been consummated in
reliance upon this Article and the Intercreditor Deed.
5. OBLIGATIONS OF HIGH YIELD GUARANTOR UNCONDITIONAL
Nothing contained in this Article or elsewhere in this Indenture, the
Notes or the Intercreditor Deed is intended to or shall impair, as
between the High Yield Subordinated Guarantor and the holders of the
Notes, the obligation of the High Yield Subordinated Guarantor, which
is absolute and unconditional, to pay to the Holders of the Notes all
amounts due and payable under the High Yield Subordinated Guarantees as
and when the same shall become due and payable in accordance with their
terms.
6. NO WAIVER OF SUBORDINATION PROVISIONS
(a) No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act
on the part of the High Yield Subordinated Guarantor or by any
act or failure to act by any such holder or by any
non-compliance by the High Yield Subordinated Guarantor with
the terms, provisions and covenants of this Indenture or the
Intercreditor Deed, regardless of any knowledge thereof any
such holder may have or otherwise be charged with.
(b) Without limiting the generality of subsection (a) of this
Section 6 and not withstanding any other provision contained
herein, the holders of Senior Debt may, at any time and from
time to time, without the consent of or notice to the High
Yield Trustee or the Holders of the Notes,
xxxix
without incurring responsibility to the Holders of the Notes
and without impairing or releasing the subordination provided
in this Article or the obligations hereunder of the Holders of
the Notes to the holders of Senior Debt, do any one or more of
the following: (1) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter,
Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding; (2) sell,
exchange, release or otherwise deal with any property pledged,
mortgaged or otherwise securing Senior Debt; (3) release any
Person liable in any manner for the collection or payment of
Senior Debt, and (4) exercise or refrain from exercising any
rights against the High Yield Subordinated Guarantor or any
other Person; provided, however, that in no event shall any
such actions limit the right of the Holders of the Notes to
take any action to accelerate the maturity of the Notes in
accordance with the provisions set forth in this Indenture or
to pursue any rights or remedies under this Indenture or under
applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
7. TRUSTEE TO EFFECTUATE SUBORDINATION
Each Holder of the Notes by his acceptance thereof authorises and
expressly directs the High Yield Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the
subordination provided in this Article and in the Intercreditor Deed,
and appoints the High Yield Trustee as his attorney in fact for any and
all such purpose, including, in the event of any liquidation,
dissolution, winding-up, reorganisation, assignment for the benefit of
creditors or marshalling of assets of the High Yield Subordinated
Guarantor whether in bankruptcy, insolvency, receivership proceedings
or otherwise, the timely filing of a claim for the unpaid balance of
the indebtedness of the High Yield Subordinated Guarantee owing to such
Holder in the form required in such proceedings and the causing of such
claim to be approved.
8. SUBROGATION TO RIGHTS OF HOLDER OF SENIOR DEBT
Subject to the payment in full of all Senior Debt in cash or in any
other form as acceptable to the holders of Senior Debt, the Holders of
the Notes shall be subrogated to the rights of the holders of such
Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of,
premium, if any, and interest on the Notes shall be paid in full. For
purposes of such subrogation, no payments or distributions to the
holders of Senior Debt of any cash, property or securities to which the
Holders or the High Yield Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Debt by Holders of
the Notes or the High Yield Trustee, shall, as among the High Yield
Subordinated Guarantor, its creditors other than holders of Senior
Debt, and the Holders of the Notes, be deemed to be a payment or
distribution by the High Yield Subordinated Guarantor to or on account
of the Senior Debt.
9. NO SUSPENSION OF REMEDIES
Nothing contained in this Article shall limit the right of the High
Yield Trustee or the Holders of Notes to take any action to accelerate
the maturity of the Notes pursuant to this Indenture and as set forth
in this Indenture or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article
of the holders, from time to time, of Senior Debt to receive the cash,
property or securities receivable upon the exercise of such rights or
remedies.
10. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS
The provisions of this Article are intended solely for the purpose of
defining the relative rights of the Holders of the Notes on the one
hand and the holders of Senior Debt on the other hand. Nothing
contained in this Article or elsewhere in the Indenture, the Guarantees
or in the Notes is intended to or shall (a) impair, as among the High
Yield Subordinated Guarantor, its creditors other than holders of
Senior Debt and the Holders of the Notes, the obligation of the High
Yield Subordinated Guarantor,
xl
which is absolute and unconditional, to pay to the Holders of the Notes
the principal of, premium, if any, and interest on the Notes as and
when the same shall become due and payable in accordance with their
terms; or (b) affect the relative rights against the High Yield
Subordinated Guarantor of the Holders of the Notes and creditors of the
High Yield Subordinated Guarantor other than the holders of Senior
Debt; or (c) prevent the High Yield Trustee or the Holder of any Notes
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt (1) in any case, proceeding,
dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of
the High Yield Subordinated Guarantor referred to in Section 3, to
receive, pursuant to and in accordance with such Section, cash,
property and securities otherwise payable or deliverable to the High
Yield Trustee or such Holder, or (2) under the conditions specified in
Section 2, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 2 (c).
11. DEFINITIONS
"PERMITTED JUNIOR SECURITIES" means: (1) share capital of ParentCo
Three; or (2) debt securities of ParentCo Three or any High Yield
Subordinated Guarantor that are subordinated to all the Senior Debt to
substantially the same extent as, or to a greater extent than, the High
Yield Subordinated Guarantees are subordinated to the Senior Debt
pursuant to this Indenture.
xli
SIGNATORIES TO INTERCREDITOR
THE OBLIGORS
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS LIMITED ) Xxxx Verrigckt
acting by )
Director
/Secretary
Notice Details
Address: 00 Xxxx Xxxxxx
Xxxxxx
Xxxxxxxxx
XX00 0XX
Facsimile: 01794 525860
Attention: Company Secretary
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS UK BONDCO LIMITED ) Xxxx Verrigckt
acting by )
Director
/Secretary
Notice Details
Address: As for the Parent
Facsimile:
Attention:
xlii
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS UK XXXXX LIMITED ) Xxxx Verrigckt
acting by )
Director/Secretary
Notice Details
Address: As for the Parent
Facsimile:
Attention:
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS UK PARENTCO 2 LIMITED ) Xxxx Verrigckt
acting by )
Director/Secretary
Notice Details
Address: As for the Parent
Facsimile:
Attention:
xliii
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS UK PARTNERCO 1 LIMITED ) Xxxx Verrigckt
acting by )
Attorney in fact
Director/
Notice Details
Address: As for the Parent
Facsimile:
Attention:
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS DUTCH OVERSEAS HOLDCO BV ) Xxxx Verrigckt
acting by )
Attorney in fact
Attorney in fact/
Notice Details
Address: As for the Parent
Facsimile:
Attention:
xliv
EXECUTED as a deed by ) Xxxxxx Xxxx
ICI ACRYLICS, INC (f/k/a Ineos Acrylics Inc. ) Xxxx XxXxxxxx
acting by )
Director
Director/
Notice Details
Address: 0000 Xxxxxxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. XxXxxxxx
EXECUTED as a deed by ) XX Xxxxxxxx
INEOS ACRYLICS HOLDCO INC ) Xxxx Verrigckt
acting by )
Attorney in Fact
Attorney in Fact
Notice Details
Address: As for the Parent
Facsimile:
Attention:
xlv
EXECUTED as a deed by ) Xxxxxx Xxxxxx
INEOS ACRYLICS UK PARENTCO 3 LIMITED )
acting by Xxxxxx Xxxxxx, Attorney in Fact )
Notice Details
Address: As for the Parent
Facsimile:
Attention:
EXECUTED as a deed by ) Xxxxxx Xxxxxx
INEOS ACRYLICS UK PARTNERCO 2 LIMITED )
acting by Xxxxxx Xxxxxx, Attorney in Fact )
Attorney in fact
/
Notice Details
Address: As for the Parent
Facsimile:
Attention:
xlvi
EXECUTED as a deed by ) Xxxxxx Xxxxxx
INEOS ACRYLICS UK LIMITED )
acting by Xxxxxx Xxxxxx, Attorney in Fact )
Notice Details
Address: As for the Parent
Facsimile:
Attention:
EXECUTED as a deed by ) Xxxxxx Xxxxxx
INEOS ACRYLICS UK TRADER HOLDCO LIMITED )
acting by Xxxxxx Xxxxxx, Attorney in fact )
Notice Details
Address: As for the Parent
Facsimile:
Attention:
xlvii
EXECUTED as a deed by ) Xxxxxx Xxxxxx
INEOS ACRYLICS US HOLDCO LIMITED )
acting by Xxxxxx Xxxxxx, Attorney in fact )
Notice Details
Address: As for the Parent
Facsimile:
Attention:
EXECUTED as a deed by ) Xxxxxx Xxxxxx
INEOS ACRYLICS UK OVERSEAS HOLDCO 1 )
LIMITED )
acting by Xxxxxx Xxxxxx, Attorney in fact )
Notice Details
Address: As for the Parent
Facsimile:
Attention:
ORIGINAL SENIOR LENDERS
EXECUTED as a deed by Xxxx Xxxxxxxx and Xxxxxxx Xxxxxx ) Xxxx Xxxxxxxx
for DEUTSCHE BANK AG ) Xxxxxxx Xxxxxx
acting by )
Authorised Signatory
Notice details
Address: 0 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0X 0XX
Facsimile: 0171 933 3419/0171 545 4638
Attention: Xxxxx Xxxxxxxx/Xxxxx Xxxxxxx
EXECUTED as a deed by ) Xxxxx Xxxxxx
XXXXXXX XXXXX CAPITAL CORPORATION )
acting by )
xlviii
Authorised Signatory
Notice details
Address: World Financial Centre
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx
XX 00000 -1316
Facsimile: 000 000 000 1719
Attention: Xxxx Xxxxxxxx
Xxxx Xxxxxxxxx
ORIGINAL BRIDGE LENDER
EXECUTED as a deed by ) XX Xxxxxxxx
CCP VI SYNDICATION LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
EXECUTED as a deed by ) XX Xxxxxxxx
CAF SYNDICATION LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
xlix
EXECUTED as a deed by ) XX Xxxxxxxx
CHEF NOMINEES LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
EXECUTED as a deed by ) XX Xxxxxxxx
CHARTERHOUSE DEVELOPMENT LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
l
EXECUTED as a deed by ) XX Xxxxxxxx
FUND NOMINEES LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 0 Xxxxxxxxxxx Xxxxxx
Xx Xxxx'x
Xxxxxx
XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
EXECUTED as a deed by ) XX Xxxxxxxx
CHARTERHOUSE GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
li
EXECUTED as a deed by ) XX Xxxxxxxx
CCP VI L.P NO. 1.1 via its general partner, CHARTERHOUSE )
GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
EXECUTED as a deed by ) XX Xxxxxxxx
CCP VI L.P NO. 1. 2 via its general partner, CHARTERHOUSE )
GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
EXECUTED as a deed by ) XX XXxxxxxx
CCP VI L.P NO. 1.3 via its general partner, CHARTERHOUSE )
GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
lii
EXECUTED as a deed by ) XX Xxxxxxxx
CCP VI L.P NO. 2.1 via its general partner, CHARTERHOUSE )
GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
liii
EXECUTED as a deed by ) XX Xxxxxxxx
CCP VI L.P NO. 2.2 via its general partner, CHARTERHOUSE )
GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
EXECUTED as a deed by ) XX Xxxxxxxx
CCP VI Auxiliary L.P NO. 1. via its general partner, )
CHARTERHOUSE GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
liv
EXECUTED as a deed by )
CCP VI Auxiliary L.P NO. 2. via its general partner, ) XX Xxxxxxxx
CHARTERHOUSE GENERAL PARTNERS (V1) LIMITED )
acting by )
Authorised Signatory
Notice details
Address: 00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile:
Attention: Xxxxx Xxxxxxxxxx
SENIOR AGENT
EXECUTED as a deed by ) Xxxx Xxxxxxxx
DEUTSCHE BANK AG ) Xxxxxxx Xxxxxx
acting by )
Authorised Signatory
Notice details
As above
lv
Dated 25 June 2003
LUCITE INTERNATIONAL LIMITED
as the Parent
LUCITE INTERNATIONAL FINANCE PLC
as the Issuer
THE OTHER COMPANIES NAMED HEREIN
as High Yield Guarantors
DEUTSCHE BANK AG LONDON
as Senior Agent
DEUTSCHE BANK AG LONDON
as Security Agent
THE BANK OF NEW YORK, N.A.
as the Acceding High Yield Trustee
----------
ACCESSION AND AMENDMENT DEED
RELATING TO AN
INTERCREDITOR DEED DATED 2 NOVEMBER 1999
----------
SHEARMAN & STERLING
LONDON
CONTENTS
CLAUSE PAGE
1. DEFINITIONS.........................................................................................1
2. AMENDMENTS..........................................................................................1
3. ACCESSION OF THE ACCEDING HIGH YIELD TRUSTEE........................................................2
4. STATUS OF INTERCREDITOR DEED........................................................................2
5. REPRESENTATIONS AND WARRANTIES......................................................................2
6. COUNTERPARTS........................................................................................3
7. MISCELLANEOUS.......................................................................................4
8. THIRD PARTIES.......................................................................................4
SIGNATORIES..................................................................................................5
THIS ACCESSION AND AMENDMENT DEED is made on 2003
BETWEEN:
(1) LUCITE INTERNATIONAL LIMITED a company incorporated in England and
Wales with registered number 383057 (the "PARENT");
(2)
LUCITE INTERNATIONAL FINANCE PLC a company incorporated in England and
Wales with registered number 3830500 (the "ISSUER");
(3) LUCITE INTERNATIONAL XXXXX LIMITED a company incorporated in England
and Wales with registered number 3830160 ("UK XXXXX");
(4) LUCITE INTERNATIONAL GROUP HOLDINGS LIMITED a company incorporated in
England and Wales with registered number 3829877, LUCITE INTERNATIONAL
INVESTMENT LIMITED a company incorporated in England and Wales with
registered number 3830534, LUCITE INTERNATIONAL HOLDINGS LIMITED a
company incorporated in England and Wales with registered number
3830184 and LUCITE INTERNATIONAL HOLDCO LIMITED a company incorporated
in England and Wales with registered number 3830157 (together the "HIGH
YIELD GUARANTORS");
(5) DEUTSCHE BANK AG LONDON as Senior Agent;
(6) DEUTSCHE BANK AG LONDON as Security Agent; and
(7) THE BANK OF NEW YORK as the acceding high yield notes trustee (the
"ACCEDING HIGH YIELD TRUSTEE").
WHEREAS:
A. The parties to this Deed have agreed to supplement and amend the
intercreditor deed dated 2 November 1999 (the "INTERCREDITOR DEED ") on
the terms set out below.
B. Pursuant to a letter dated on or before 25 June 2003 (the "SFA
AMENDMENT LETTER"), the Parent, the Issuer, the Senior Agent and the
Security Agent, among others, agreed to make certain amendments to the
Senior Facilities Agreement in connection with the proposed issue of
the Additional High Yield Notes (as such expression is defined in the
SFA Amendment Letter) by the Issuer.
C. The Acceding High Yield Trustee, in its capacity as trustee for the
holders of the Additional High Yield Notes (together the "ADDITIONAL
HIGH YIELD NOTEHOLDERS"), has agreed to become a party to the
Intercreditor Deed in accordance with the terms of this Deed.
NOW IT IS HEREBY AGREED:-
1. DEFINITIONS
1.1 In this Deed, capitalised terms not otherwise defined in this Deed
shall have the meanings given to them in the Intercreditor Deed and the
Senior Facilities Agreement.
1.2 The provisions of Clause 1.3 (Interpretation) of the Intercreditor Deed
shall also apply in the interpretation of this Deed as if expressly set
out herein with each reference to the "Deed" being deemed to be a
reference to this Deed.
2. AMENDMENTS
2.1 It is agreed by the parties to this Deed that with effect from the date
hereof:-
(a) the Additional High Yield Notes will constitute "High Yield
Notes" for all purposes of the Senior Facilities Agreement and
the Intercreditor Deed and that the definitions of "High Yield
Notes", "High Yield Costs", "High Yield Creditors", "High
Yield Debt", "High Yield Finance Documents", "High Yield
Guarantors", "High Yield Indenture", "High Yield Senior
Guarantees", "High Yield Subordinated Guarantees", "High Yield
Guarantors", "High Yield Senior Guarantors", "High Yield
Subordinated Guarantors", "High Yield Noteholders" and "High
Yield Trustee" in the Intercreditor Deed shall be read and
construed accordingly;
(b) The definition of "XXXXX/ISSUER LOAN AGREEMENT" shall be
deleted in its entirety and the following new definition
inserted in its place:
""XXXXX/ISSUER LOAN AGREEMENT" means (i) the loan agreement,
in the agreed terms, made between the Issuer and UK Xxxxx
pursuant to which the proceeds of the Bridge Facility
1
Agreements are advanced by the Issuer to UK Xxxxx and (ii) the
loan agreement, in the agreed terms, made between the Issuer
and UK Xxxxx pursuant to which the proceeds of the Additional
High Yield Notes are or are to be advanced by the Issuer to UK
Xxxxx."; and
(c) each of the Issuer, the High Yield Guarantors and the Parent
(on behalf of itself and each of the other Obligors) agrees
and confirms in favour of the Senior Finance Parties that:-
(i) it will be bound by the terms of the Intercreditor
Deed as if the Additional High Yield Notes had
originally constituted "High Yield Notes" and the
Indebtedness under the Additional High Yield Notes
and any guarantees given by the High Yield Guarantors
in relation thereto had originally constituted "High
Yield Debt"; and
(ii) the Additional High Yield Notes, and the rights of
the Additional High Yield Noteholders in relation
thereto, will be subject at all times to the terms of
the Intercreditor Deed.
3. ACCESSION OF THE ACCEDING HIGH YIELD TRUSTEE
3.1 The Acceding High Yield Trustee hereby agrees with each other person
who is or who becomes a party to the Intercreditor Deed that with
effect on and from the date hereof it will be bound by the
Intercreditor Deed in the capacity of High Yield Trustee as if it had
been an original party to the Intercreditor Deed in that capacity.
3.2 The address of the Acceding High Yield Trustee for the purposes of
Clause 25 (Notices) of the Intercreditor Deed has been separately
advised to the Senior Agent.
4. STATUS OF INTERCREDITOR DEED
4.1 Except as otherwise provided in this Deed, the Intercreditor Deed will
remain in full force and effect and as from the date hereof references
in the Intercreditor Deed to "this Deed" "hereunder", "herein" and like
terms or to any provision of the Intercreditor Deed shall be construed
as a reference to the Intercreditor Deed, or such provision, as amended
by this Deed.
4.2 This Deed will constitute a Senior Finance Document for the purposes of
the Intercreditor Deed and will constitute part of the Intercreditor
Deed for the purposes of the Senior Finance Documents.
4.3 Except as otherwise provided in this Deed, the Intercreditor Deed shall
remain in full force and effect.
5. REPRESENTATIONS AND WARRANTIES
5.1 Each of the Parent, the Issuer and the High Yield Guarantors hereby
represents and warrants to and for the benefit of the other parties to
this Deed that on the date hereof:
(a) INCORPORATION/STATUS: it, and each of its Subsidiaries is duly
incorporated and validly existing with limited liability under
the laws of the place of its incorporation and has the power
to own its assets and carry on its business substantially as
it is now being conducted.
(b) POWERS AND AUTHORITY: it has the power to enter into and
perform its obligations under this Deed and the Intercreditor
Deed (as amended by this Deed) and to carry out the
transactions contemplated hereby and thereby.
(c) AUTHORITY: All actions, conditions and things required to be
taken, fulfilled and done by it in order:
(i) to enable it to enter into, exercise its rights
under, and perform and comply with its obligations
under, this Deed and the Intercreditor Deed (as
amended by this Deed) and to carry out the
transactions contemplated hereby and thereby; and
2
(ii) to ensure that those obligations are valid, legally
binding and, subject to reservations, enforceable in
accordance with their terms; and
(iii) to make this Deed and the Intercreditor Deed (as
amended by this Deed) admissible in evidence in the
courts of the jurisdiction to which it has submitted
hereunder and thereunder,
have been taken, fulfilled and done.
(d) CONSENTS AND FILINGS: All consents and filings required:-
(i) for its entry into, exercise of its rights, and
performance and compliance with its obligations
under, this Deed and the Intercreditor Deed (as
amended by this Deed);
(ii) for it to carry out the transactions contemplated by
this Deed and the Intercreditor Deed (as amended by
this Deed),
have been obtained or made and are in full force and effect.
(e) NON-CONFLICT: Its entry into, exercise of its rights under and
performance and compliance with its obligations under, this
Deed and the Intercreditor Deed (as amended by this Deed) to
which it is party and the carrying out of the transactions
contemplated by this Deed and the Intercreditor Deed (as
amended by this Deed) do not:-
(i) contravene any law, directive, judgment or order to
which it or any of its Subsidiaries is subject;
(ii) contravene its memorandum or articles of association
or other Constitutional Documents;
(iii) breach in any material respect any agreement or any
material consent to which it or any of its
Subsidiaries is a party or which is binding upon it
or any of its Subsidiaries or any of its or their
respective assets; or
(iv) oblige it, or any of its Subsidiaries, to create any
security or result in the creation of any security
over its or their respective assets other than under
the Security Documents.
(f) OBLIGATIONS BINDING: Its obligations under this Deed and the
Intercreditor Deed (as amended by this Deed) are valid,
legally binding and, subject to reservations, enforceable.
5.2 The Parent hereby represents and warrants in favour of the Senior
Finance Parties that it has been duly authorised by each of the
Obligors not party to this Deed to execute this Deed on their behalf
and that no such Obligor has any objection to its terms.
6. COUNTERPARTS
6.1 This Deed may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the
same Deed.
6.2 Failure by one or more parties ("NON-SIGNATORIES") to execute this Deed
on the date hereof will not invalidate the provisions of this Deed as
between the other parties who do execute this Deed. Such
Non-Signatories may execute this Deed (or a counterpart thereof) on a
subsequent date and will become bound by its provisions. Any person who
improperly executes or delivers this Deed may also
3
re-execute and deliver this Deed (or a counterpart thereof) on a
subsequent date for the purposes of ratifying its original execution
and delivery of this Deed and confirming that it continues to be bound
by its provisions.
7. MISCELLANEOUS
Clauses 25 (Notices), 26 (No implied waivers), 27 (Partial Invalidity)
and 28 (Governing Law and Submission to Jurisdiction) in the
Intercreditor Deed shall be deemed to be incorporated in this Deed
(with such conforming changes as the context requires) as if set out
herein.
8. THIRD PARTIES
A person who is not a party to this Deed (other than those persons who
at the date hereof are party to the Intercreditor Deed or who are
expressly contemplated by its terms as being party to the Intercreditor
Deed at any time hereafter) has no right under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce or to enjoy the benefit of any terms
of this Deed.
IN WITNESS whereof this deed has been duly executed by the parties hereto as a
deed and shall take effect and be delivered on the date first written above.
4
SIGNATORIES
THE OBLIGORS
EXECUTED as a deed by )
LUCITE INTERNATIONAL LIMITED )
acting by )
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
EXECUTED as a deed by )
LUCITE INTERNATIONAL FINANCE PLC )
acting by )
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
EXECUTED as a deed by )
LUCITE INTERNATIONAL XXXXX LIMITED )
acting by )
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
EXECUTED as a deed by )
LUCITE INTERNATIONAL GROUP HOLDINGS LIMITED )
acting by )
)
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
5
EXECUTED as a deed by )
LUCITE INTERNATIONAL INVESTMENT LIMITED )
acting by )
)
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
EXECUTED as a deed by )
LUCITE INTERNATIONAL HOLDINGS LIMITED )
acting by )
)
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
EXECUTED as a deed by )
LUCITE INTERNATIONAL HOLDCO LIMITED )
acting by )
)
Director/Secretary
Notice Details
Address:
Facsimile:
Attention:
SENIOR AGENT AND SECURITY AGENT
EXECUTED as a deed by )
DEUTSCHE BANK AG LONDON )
in its capacities under the Intercreditor Deed of )
Senior Agent and Security Agent )
By:
6
ACCEDING HIGH YIELD TRUSTEE
EXECUTED as a deed by )
THE BANK OF NEW YORK )
By:
Notice Details
Address:
Facsimile:
Attention:
7
SECURITY AGENT
EXECUTED as a deed by ) Xxxx Xxxxxxxx
DEUTSCHE BANK AG ) Xxxxxxx Xxxxxx
acting by )
Authorised Signatory
Notice details
As above
8
EXHIBIT B
FORM OF INTERCOMPANY NOTE
B-1
DATED 25 June 2003
LUCITE INTERNATIONAL XXXXX LIMITED (1)
(AS BORROWER)
LUCITE INTERNATIONAL FINANCE PLC (2)
(AS LENDER)
---------------------------------------------
INTERCOMPANY LOAN AGREEMENT
---------------------------------------------
XXXXXXXX
0 Xxxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx Xxxxxx XX0X 0XX DX 136546 Bishopsgate 2
TELEPHONE x00 (0)000 000 0000 FAX x00 (0)000 000 0000
OFFICES AND ASSOCIATED OFFICES Aosta Berlin Birmingham Brussels Hong Kong Leeds
London Madrid Manchester Milan Munich Paris Rome Turin
WEBSITE xxx.xxxxxxxx.xxx
REFERENCE DJC/LUC.47-2
CONTENTS
1 DEFINITIONS AND INTERPRETATIONS........................................................................1
2 CONSTRUCTION...........................................................................................2
3 FACILITY...............................................................................................2
4 PURPOSE................................................................................................2
5 DRAWDOWN...............................................................................................2
6 INTEREST...............................................................................................3
7 FEES AND EXPENSES......................................................................................3
8 REPAYMENT..............................................................................................3
9 PAYMENTS...............................................................................................4
10 REPRESENTATIONS AND WARRANTIES.........................................................................4
11 DEFAULT................................................................................................4
12 ILLEGALITY.............................................................................................5
13 MISCELLANEOUS..........................................................................................5
I
LOAN AGREEMENT made on 25 June 2003
PARTIES
(1) LUCITE INTERNATIONAL XXXXX LIMITED a company incorporated in England
with registered number 3830160 (the "BORROWER"); and
(2) LUCITE INTERNATIONAL FINANCE PLC a company incorporated in England with
registered number 3830500 (the "LENDER");
WHEREAS
(A) the Lender proposes to lend the Borrower E.50,000,000 on the terms set
out in this Agreement.
(B) The Lender proposes to issue E.50,000,000 10 1/4% Secured Notes due
2010 (the "NOTES") at an issue price of 104.5% and to utilise the net
proceeds of the issue of the Notes in funding such loan.
IT IS AGREED:
1 DEFINITIONS AND INTERPRETATIONS
DEFINITIONS
1.1 In this Agreement (including the recitals), except where the context
otherwise requires:
(a) "BUSINESS DAY" means a day on which banks in London are
generally open for the transaction of business of the nature
contemplated by this Agreement;
(b) "CLOSING DATE" means the date on which the Lender receives the
net proceeds of the issue of the Notes;
(c) "DRAWDOWN DATE" means the date on which the Facility is or is
to be drawn pursuant to Clause 5.2;
(d) "FACILITY" means the loan facility made available by the
Lender to the Borrower on the terms and conditions set out in
this Agreement;
(e) "FINAL REPAYMENT DATE" means 15 May 2010;
(f) "INTERCREDITOR AGREEMENT" has the meaning given to it in the
Senior Facilities Agreement;
(g) "INTEREST BASIS" means the basis on which interest is
calculated under the Notes;
(h) "INTEREST PAYMENT DATE" means each date ("RELEVANT DATE") on
which interest is payable under the Notes or such earlier
dates as may be necessary to facilitate the trustee thereof
making timely payment of interest on the Notes on the Relevant
Dates;
(i) "INTEREST RATE" means the rate of interest applicable to the
Loan in accordance with Clause 6.2;
1
(j) "LOAN" means the loan made or to be made available by the
Lender to the Borrower under this Agreement, or as the case
may be, the outstanding principal amount of that loan;
(k) "MARGIN" means such annual percentage rate not exceeding 1.00
per cent. as the Lender may from time to time designate by
notice to the Borrower or, failing any such designation, 0.02
per cent.;
(l) "SENIOR FACILITIES AGREEMENT" means the facilities agreement
dated 3 October 1999 between, among others, Lucite
International Limited, the Borrower, the Guarantors and
Deutsche Bank AG London and Xxxxxxx Xxxxx Capital Corporation
as Original Banks, and Deutsche Bank AG as Facility Agent and
Security Agent, as amended and restated on 13 December 2002;
(m) "SUBSIDIARY" means, in relation to an undertaking (the
"holding undertaking"), any other undertaking in which the
holding undertaking (or persons acting on its or their behalf)
for the time being directly or indirectly holds or controls
either;
(i) a majority of the voting rights exercisable at
general meetings of the members of that undertaking
on all, or substantially all, matters; or
(ii) the right to appoint or remove directors having a
majority of the voting rights exercisable at meetings
of the board of directors of that undertaking on all,
or substantially all, matters,
and any undertaking which is a Subsidiary of another
undertaking shall also be a Subsidiary of any further
undertaking of which that other is a Subsidiary.
2 CONSTRUCTION
2.1 References in this Agreement to "clauses" are references to the clauses
of this Agreement unless otherwise stated.
2.2 Headings are for ease of reference only and shall not affect the
interpretation of this Agreement.
3 FACILITY
The Lender agrees, subject to the terms and conditions of this
Agreement to lend to the Borrower a principal sum in euro of
E.50,000,000.
4 PURPOSE
The Facility shall be used for the Borrower's general corporate
purposes including the making of loans to Subsidiaries of the Borrower
to enable those Subsidiaries to reduce indebtedness under the Senior
Facilities Agreement.
5 DRAWDOWN
5.1 Subject to the provisions hereof and the Lender having received the
proceeds of the issue of the Notes, the Facility shall be made
available in full in one amount on such date falling within seven days
after the Closing Date as the Borrower may request pursuant to Clause
5.2.
2
5.2 If the Borrower wishes to draw under the Facility, it will give the
Lender notice in writing, including by fax, (or telephone to be
immediately confirmed in writing) not later than 3.00 p.m. (London
time) on the business day 5 business days prior to the proposed date of
drawing (which shall be a business day falling on or before 31 July
2003 unless the Lender otherwise agrees) specifying the amount of the
proposed drawing, the business day on which it is to be made and the
bank account to which payment is to be made.
6 INTEREST
6.1 The Borrower will pay to the Lender on demand by the Lender interest on
all outstanding amounts under this Agreement and whether or not payment
of such sum has been demanded by the Lender.
6.2 The Loan shall bear interest (calculated on the Interest Basis) at the
rate which is equal to the aggregate of the Margin and the rate of
interest per annum for the time being applicable to the Notes.
6.3 Any certificate of determination by the Lender as to the rate of
interest payable under this Agreement or the amount of any interest
shall, in the absence of manifest error, be conclusive and binding upon
the Borrower.
6.4 Interest shall be payable on each Interest Payment Date.
7 FEES AND EXPENSES
7.1 The Borrower will pay to the Lender on demand such fees as the Lender
requires from time to time, which fees shall be calculated by reference
to all costs, charges and expenses of whatever nature incurred by the
Lender and arising in connection with the Facility and its funding
including its negotiation, preparation and variation, and all such
costs, charges and expenses arising in connection with the preservation
of enforcement of the Lender's rights hereunder.
8 REPAYMENT
8.1 Subject to the provisions of this Agreement, the Borrower may on giving
not less than one month's irrevocable written notice to the Lender
prepay all or any part of the Loan hereunder on any Interest Payment
Date (or on such shorter period of notice and/or other date as the
Lender may agree).
8.2 Subject to Clause 8.1. the Borrower shall repay the Loan (together with
all accrued interest, charges, fees, costs and expenses due hereunder)
on the Final Repayment Date.
8.3 The Borrower shall prepay the Loan, in whole or, as the case may be, in
part, from time to time in an amount equal to the principal amount of
any Notes which are voluntarily redeemed by the Lender or which fall to
be repurchased on a Change of Control or Asset Sale (each as defined in
the indenture constituting the Notes) or which are mandatorily redeemed
upon acceleration of the Notes. If any such redemption or purchase of
Notes is required to be made at a premium to the face value of any
Note, the amount of the Loan repayable by the Borrower shall be
increased by a corresponding amount.
3
9 PAYMENTS
9.1 All payments due to be made by the Borrower hereunder shall be made not
later than 3.00 p.m. (London time) on the relevant day to such bank
account as the Lender may specify in writing in full without any
deduction or withholding (whether in respect of set-of, counterclaim,
duties, taxes, charges or otherwise howsoever) provided that if the
Borrower is required by law to make any such deduction or withholding,
it shall (i) ensure that the deduction or withholding does not exceed
the minimum amount legally required; (ii) pay to the relevant taxation
or other authorities, as appropriate, the full amount of the deduction
or withholding, (iii) furnish to the Lender within 30 days of such
payment an official receipt from such authorities for all amounts
deducted or withheld if such is available, or otherwise a certificate
of deduction or equivalent evidence of the relevant deduction or
withholding, and (iv) pay to the Lender an additional amount so that
the Lender receives on the due date the full amount it would have
received had no such deduction or withholding been made.
9.2 Any sum due for payment hereunder on a day which is not a business day,
and any Interest Payment Date due to fall on a day that is not a
business day, will be paid on or postponed to the next succeeding
business day or, if that succeeding business day falls in the following
calendar month, paid on or brought forward to the preceding business
day.
10 REPRESENTATIONS AND WARRANTIES
10.1 The Borrower represents and warrants to the Lender as follows:
(a) all necessary corporate and other action has been taken by it
to authorise it to enter into this Agreement and perform the
transactions contemplated in it;
(b) no limit on the borrowing powers of the Borrower or its
directors will be exceeded as a result of any drawing made
pursuant to this Agreement, and this Agreement constitutes
valid, binding and enforceable obligations on its part.
11 DEFAULT
11.1 If:
(a) the Borrower fails to pay any amount under this Agreement when
due;
(b) the Borrower fails to observe or perform any of its
obligations under this Agreement other than an obligation of
the type referred to in Clause 11(a) and, if that failure is
capable of remedy, it is not remedied within 21 days after the
Borrower becomes aware of such breach that it has been
remedied to the Lender's satisfaction;
(c) any encumbrancer takes possession, or a trustee, receiver or
similar officer is appointed, over any of the assets of the
Borrower, or distress or any form of execution is levied or
enforced upon or sued out against any such assets;
(d) the Borrower is, or is deemed, unable to pay its debts within
the meaning of Section 123 of the Insolvency Xxx 0000 or
becomes unable to pay its debts as they fall due or suspends
making payments (whether of principal or interest) with
respect to all or any class of its debts;
4
(e) the Borrower convenes a meeting of its creditors or proposes
to make any arrangement or composition with, or any assignment
for the benefit of, its creditors or a petition is presented,
application is made or a meeting is convened for the purpose
of considering a resolution or other steps are taken for, the
making of an administration order in relation to it or for its
winding up or dissolution;
(f) anything analogous to any of the events specified in
paragraphs (c), (d) or (e) occurs under the laws of any
applicable jurisdiction; or
(g) any provision of this Agreement is or becomes for any reason,
invalid or unenforceable,
(each an Event of Default), the Lender may serve an immediate notice of
default and may simultaneously declare that all amounts outstanding
under this Agreement shall become immediately due and payable whereupon
they shall become so due and payable together with accrued interest
thereon and any other amounts payable under this Agreement in all
respects subject to the terms of the Intercreditor Agreement.
12 ILLEGALITY
12.1 If any change in or introduction of any applicable law, regulation or
treaty, or any change in the interpretation or application thereof,
shall make it unlawful for the Lender to make available or fund the
Loan or maintain the Facility the Lender shall give notice thereof to
the Borrower, whereupon the Borrower will repay all amounts outstanding
under this Agreement together with accrued interest thereon and any
other amounts payable to the Lender hereunder within such period as may
be permitted by such law, regulation or treaty, or the change in the
interpretation or application thereof, or, if no such period is stated
therein, forthwith.
12.2 If any of the provisions of this Agreement becomes invalid, illegal or
unenforceable in any respect under any law, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired.
13 MISCELLANEOUS
13.1 No failure to exercise and no delay in exercising, on the part of the
Lender, any right, power or privilege under this Agreement or under any
other documents ancillary thereto shall operate as a waiver thereof,
nor shall any single of partial exercise of any right, power or
privilege preclude any other or further exercise thereof, or the
exercise of any other right, power or privilege. No waiver by the
Lender shall be effective unless it is in writing.
13.2 Any notice or communication under or in connection with this Agreement
shall be in writing and shall be delivered personally, or by post,
telex, fax or cable to the addresses given in this Agreement or at such
other address as the recipient may have notified to the other party in
writing. Proof of posting or despatch or any notice or communication
shall be deemed to be proof of receipt:
(a) in the case of a letter, on the third business day after
posting;
(b) in the case of a telex, fax or cable, on the business day
immediately following the date of despatch.
5
13.3 The parties' details are as follows:
(a) The Borrower
Lucite International Xxxxx Limited
Queens Gate
15 - 00 Xxxxxx Xxxxxxx
Xxxxxxxxxxx
XX00 0XX
Fax: 00000 000000
Attn: Company Secretary
(b) The Lender
Lucite International Finance plc
Queens Gate
15 - 00 Xxxxxx Xxxxxxx
Xxxxxxxxxxx
XX00 0XX
Fax: 00000 000000
Attn: Company Secretary
13.4 Neither party may assign any of its rights under this Agreement without
the written consent of the other.
13.5 The rights and obligations of the Lender and the Borrower under this
Agreement are regulated by the Senior Facilities Agreement and the
Intercreditor Agreement, are subject in all respect to the terms of the
Senior Facilities Agreement and the Intercreditor Agreement, and no
payment or repayment of interest, principal or any other amount shall
be made hereunder which would result in a breach of the Senior
Facilities Agreement or the Intercreditor Agreement.
13.6 This Agreement shall be governed by English law.
Signed by the authorised representatives of the parties.
Signed by )
for and on behalf of )
Lucite International Xxxxx Limited )
in the presence of: )
Signed by )
for and on behalf of )
Lucite International Finance plc )
in the presence of: )
6
