Exhibit 4
EXECUTION COPY
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SGL CARBON Luxembourg S.A.
AND EACH OF THE GUARANTORS PARTY HERETO
8.5% SENIOR NOTES DUE 2012
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INDENTURE
Dated as of February 9, 2004
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The Bank of New York, as Trustee and Security Agent
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Subject to the provisions of the Intercreditor Agreement
[Xxxxxx and Xxxxxxx Logo]
London
00 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
(00) 000 0000 0000 (Tel)
(00) 000 0000 0000 (Fax)
xxx.xx.xxx
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 Definitions....................................................1
SECTION 1.02 Other Definitions.............................................25
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.............26
SECTION 1.04 Rules of Construction.........................................26
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating...............................................27
SECTION 2.02 Execution and Authentication..................................28
SECTION 2.03 Appointment of Agents.........................................28
SECTION 2.04 Paying Agents to Hold Money in Trust..........................29
SECTION 2.05 Noteholder Lists..............................................29
SECTION 2.06 Transfer and Exchange.........................................30
SECTION 2.07 Replacement Notes.............................................38
SECTION 2.08 Outstanding Notes.............................................38
SECTION 2.09 Treasury Notes................................................39
SECTION 2.10 Temporary Notes...............................................39
SECTION 2.11 Cancellation..................................................39
SECTION 2.12 Defaulted Interest............................................40
SECTION 2.13 Common Code and ISIN Number...................................40
SECTION 2.14 Deposit of Moneys.............................................40
SECTION 2.15 Holders to Be Treated as Owners; Payments of Interest.........40
SECTION 2.16 Further Issues................................................41
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 Notices to Trustee............................................41
SECTION 3.02 Selection of Notes to Be Redeemed or Purchased................41
SECTION 3.03 Notice of Redemption..........................................42
SECTION 3.04 Effect of Notice of Redemption................................42
SECTION 3.05 Deposit of Redemption or Purchase Price.......................43
SECTION 3.06 Notes Redeemed or Purchased in Part...........................43
SECTION 3.07 Optional Redemption...........................................43
SECTION 3.08 Mandatory Redemption..........................................44
SECTION 3.09 Offer to Purchase by Application of Excess Proceeds...........44
SECTION 3.10 Redemption for Changes in Withholding Tax.....................46
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Notes..............................................47
SECTION 4.02 Maintenance of Office or Agency...............................47
SECTION 4.03 Reports.......................................................47
SECTION 4.04 Compliance Certificate........................................49
SECTION 4.05 Taxes.........................................................49
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SECTION 4.06 Stay, Extension and Usury Laws................................49
SECTION 4.07 Restricted Payments...........................................50
SECTION 4.08 Dividend and Other Payment Restrictions Affecting
Subsidiaries..................................................53
SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock....54
SECTION 4.10 Asset Sales...................................................58
SECTION 4.11 Transactions with Affiliates..................................60
SECTION 4.12 Liens.........................................................61
SECTION 4.13 Issuer; Group Business Activities.............................61
SECTION 4.14 Corporate Existence...........................................62
SECTION 4.15 Offer to Repurchase Upon Change of Control....................62
SECTION 4.16 No Layering of Indebtedness...................................64
SECTION 4.17 Limitation on Sale and Leaseback Transactions.................64
SECTION 4.18 Limitation on Issuances and Sales of Equity Interests in
Wholly-Owned Restricted Subsidiaries..........................64
SECTION 4.19 Subsidiary Guarantees of Indebtedness.........................65
SECTION 4.20 Payments for Consent..........................................66
SECTION 4.21 Designation of Restricted and Unrestricted Subsidiaries.......66
SECTION 4.22 Additional Amounts............................................67
SECTION 4.23 Convertible Bonds.............................................69
ARTICLE 5
SUCCESSORS
SECTION 5.01 Merger, Consolidation, or Sale of Assets......................69
SECTION 5.02 Successor Corporation Substituted.............................71
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.............................................72
SECTION 6.02 Acceleration..................................................74
SECTION 6.03 Other Remedies................................................74
SECTION 6.04 Waiver of Past Defaults.......................................75
SECTION 6.05 Control by Majority...........................................75
SECTION 6.06 Limitation on Suits...........................................75
SECTION 6.07 Rights of Holders of Notes to Receive Payment.................76
SECTION 6.08 Collection Suit by Trustee....................................76
SECTION 6.09 Trustee May File Proofs of Claim..............................76
SECTION 6.10 Priorities....................................................77
SECTION 6.11 Undertaking for Costs.........................................77
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.............................................77
SECTION 7.02 Rights of Trustee.............................................78
SECTION 7.03 Individual Rights of Trustee..................................80
SECTION 7.04 Trustee's Disclaimer..........................................80
SECTION 7.05 Notice of Defaults............................................80
SECTION 7.06 Reports by Trustee to Holders of the Notes....................81
SECTION 7.07 Compensation and Indemnity....................................81
SECTION 7.08 Replacement of Trustee........................................82
SECTION 7.09 Successor Trustee by Merger, etc..............................83
SECTION 7.10 Eligibility; Disqualification.................................83
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance......83
SECTION 8.02 Legal Defeasance and Discharge................................83
SECTION 8.03 Covenant Defeasance...........................................84
SECTION 8.04 Conditions to Legal or Covenant Defeasance....................85
SECTION 8.05 Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.........................86
SECTION 8.06 Repayment to Issuer...........................................86
SECTION 8.07 Reinstatement.................................................86
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 Without Consent of Holders of Notes...........................87
SECTION 9.02 With Consent of Holders of Notes..............................88
SECTION 9.03 Revocation and Effect of Consents.............................90
SECTION 9.04 Notation on or Exchange of Notes..............................90
SECTION 9.05 Trustee to Sign Amendments, etc...............................90
ARTICLE 10
COLLATERAL AND SECURITY
SECTION 10.01 Security Documents............................................91
SECTION 10.02 Release of Collateral.........................................91
SECTION 10.03 Certificates of the Trustee...................................92
SECTION 10.04 Authorization of Actions to Be Taken by the Trustee Under the
Security Documents............................................93
SECTION 10.05 Authorization of Receipt of Funds by the Trustee Under the
Security Documents............................................93
SECTION 10.06 Termination of Security Interest..............................93
SECTION 10.07 Appointment of Security Agent.................................93
ARTICLE 11
GUARANTEES
SECTION 11.01 Guarantee.....................................................94
SECTION 11.02 Subordination of Guarantees...................................96
SECTION 11.03 Limitation on Guarantor Liability............................100
SECTION 11.04 Execution and Delivery of Guarantee..........................103
SECTION 11.05 Releases.....................................................104
ARTICLE 12
SATISFACTION AND DISCHARGE
SECTION 12.01 Satisfaction and Discharge...................................105
SECTION 12.02 Application of Trust Money...................................106
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Notices......................................................106
SECTION 13.02 Certificate and Opinion as to Conditions Precedent...........108
SECTION 13.03 Statements Required in Certificate or Opinion................108
SECTION 13.04 Rules by Trustee and Agents..................................108
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SECTION 13.05 No Personal Liability of Directors, Officers, Employees and
Stockholders.................................................108
SECTION 13.06 Judgment Currency............................................109
SECTION 13.07 Prescription.................................................109
SECTION 13.08 Governing Law................................................109
SECTION 13.09 Consent to Jurisdiction......................................109
SECTION 13.10 Service of Process in New York...............................110
SECTION 13.11 Waiver of Jury Trial.........................................110
SECTION 13.12 No Adverse Interpretation of Other Agreements................110
SECTION 13.13 Successors...................................................110
SECTION 13.14 Severability.................................................111
SECTION 13.15 Counterpart Originals........................................111
SECTION 13.16 Table of Contents, Headings, etc.............................111
EXHIBITS
Exhibit A FORM OF GLOBAL NOTE
Exhibit B FORM OF DEFINITIVE REGISTERED NOTE
Exhibit C FORM OF CERTIFICATE OF TRANSFER
Exhibit D FORM OF CERTIFICATE OF EXCHANGE
Exhibit E FORM OF NOTATION OF GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G ORIGINAL INTERCREDITOR AGREEMENT
Exhibit H SECURITY TRUST AGREEMENT
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INDENTURE dated as of February 9, 2004 between SGL CARBON Luxembourg S.A., a
soci{e'}t{e'} anonyme incorporated under the laws of the Grand Duchy of
Luxembourg, the Company (as defined), the Subsidiary Guarantors (as defined)
and The Bank of New York, as trustee and security agent.
The Issuer, the Company, the Subsidiary Guarantors, the Trustee and the
Security Agent agree as follows for the benefit of each other and for the equal
and ratable benefit of the Holders (as defined) of the 8.5% Senior Notes due
2012 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 Definitions.
"144A Definitive Registered Note" means a Definitive Registered Note bearing
the 144A Legend and the Dutch Legend.
"144A Legend" means the legend initially set forth on the U.S. Global Note or
144A Definitive Registered Note as set forth in Section 2.06(k)(1) hereof.
"Acquired Indebtedness" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person
is merged with or into or became a Restricted Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with
or into, or becoming a Restricted Subsidiary of, such specified Person;
and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such
specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition,
"control," as used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by agreement or otherwise; provided that beneficial ownership of 10% or more of
the Voting Stock of a Person will be deemed to be control. For purposes of
this definition, the terms "controlling," "controlled by" and "under common
control with" have correlative meanings.
"Agent" means any Registrar, co-registrar, Paying Agent or additional paying
agent.
"Applicable Procedures" means, with respect to any transfer or exchange of or
for beneficial interests in any Global Note, the rules and procedures of the
Depositary that apply to such transfer or exchange.
"Asset Sale" means:
(1) the sale, lease, conveyance or other disposition of any assets or rights;
provided that the sale, lease, conveyance or other disposition of all or
substantially all of the assets of the
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Company and its Restricted Subsidiaries taken as a whole will be governed
by the provisions of Sections 4.15 and 5.01 and not by the provisions of
Section 4.10; and
(2) the issuance or sale of Equity Interests in any of the Company's
Restricted Subsidiaries (other than directors' qualifying shares or
shares required by applicable law to be held by a Person other than the
Company or a Restricted Subsidiary).
Notwithstanding the preceding, none of the following items will be deemed to be
an Asset Sale:
(1) any single transaction or series of related transactions that involves
assets having a fair market value of less than *1.0 million;
(2) a transfer of assets between or among the Company and its Restricted
Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the Company
to the Company or to another Restricted Subsidiary of the Company;
(4) the sale or lease of products, services or accounts receivable in the
ordinary course of business and any sale or other disposition of damaged,
worn-out or obsolete assets in the ordinary course of business;
(5) any sale of Equity Interests in, or Indebtedness or other securities of,
an Unrestricted Subsidiary;
(6) a disposition of an asset which is obsolete for the purposes for which
such asset is normally utilized or assets which, as of the date of
disposition, are no longer used or useful in the conduct of the business
of the Company and its Restricted Subsidiaries;
(7) the sale or other disposition of cash or Cash Equivalents; and
(8) a Restricted Payment that does not violate Section 4.07 or a Permitted
Investment.
"Attributable Indebtedness" in respect of a sale and leaseback transaction
means, at the time of determination, the present value of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such sale and leaseback transaction including any period for which such
lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with IFRS;
provided, however, that if such sale and leaseback transaction results in a
Capital Lease Obligation, the amount of Indebtedness represented thereby will
be determined in accordance with the definition of "Capital Lease Obligation."
"Bankruptcy Law" means (to the extent applicable) (i) Title 11 of the U.S.
Code, (ii) the Luxembourg Commercial Code (Code de Commerce) {section}{section}
437 - 614, (iii) the German Insolvency Code (Insolvenzordnung) or (iv) any
other law of the United States, Luxembourg or Germany or any political
subdivision thereof or any other jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial
ownership of any particular "person" (as that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be deemed to
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have beneficial ownership of all securities that such "person" has the right to
acquire by conversion or exercise of other securities, whether such right is
currently exercisable or is exercisable only after the passage of time. The
terms "Beneficially Owns" and `Beneficially Owned" have a corresponding
meaning.
"Board of Directors" means:
(1) with respect to a corporation, the board of directors of the corporation
or any committee thereof duly authorized to act on behalf of such board;
(2) with respect to a partnership, the Board of Directors of the general
partner of the partnership;
(3) with respect to a limited liability company, the managing member or
members or any controlling committee of managing members thereof; and
(4) with respect to any other Person, the board or committee of such Person
serving a similar function.
Without limiting the generality of the foregoing, the board of directors of a
German Aktiengesellschaft (AG) means the supervisory board (Aufsichtsrat) or
the management board (Vorstand) of the AG, or both, in each case according to
whether, under German law, or the constituting documents of the AG, the
relevant action of the AG requires the resolution, approval or action of the
supervisory board, management board or both.
"Book-Entry Interest" means a beneficial interest in a Global Note held through
and shown on, and transferred only through, records maintained in book-entry
form by a Depositary.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is to be made,
the amount of the liability in respect of a capital lease that would at that
time be required to be capitalized on a balance sheet prepared in accordance
with IFRS, and the Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be prepaid by the lessee without payment of a
penalty.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership
interests (whether general or limited) or membership interests; and
(4) any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets
of, the issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital Stock.
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"Cash Equivalents" means:
(1) securities issued or directly and fully and unconditionally guaranteed or
insured by the United States government, or any agency or instrumentality
thereof, the securities of which are unconditionally guaranteed as a full
faith and credit obligation of such government with maturities of 24
months or less from the date of acquisition;
(2) securities issued or directly and fully and unconditionally guaranteed or
insured by a member of the European Union, or any agency or
instrumentality thereof, the securities of which are unconditionally
guaranteed as a full faith and credit obligation of such government with
maturities of 24 months or less from the date of acquisition;
(3) certificates of deposit, time deposits and eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank
deposits, in each case, with any commercial bank or trust company having
capital and surplus in excess of *500.0 million;
(4) repurchase obligations for underlying securities of the types described
in clauses (1), (2) and (3) entered into with any financial institution
meeting the qualifications specified in clause (3) above;
(5) commercial paper rated at the time of acquisition thereof at least P-1 by
Xxxxx'x or at least A-1 by S&P and in each case maturing within 12 months
after the date of acquisition thereof;
(6) readily marketable direct obligations issued by any state of the United
States of America or any member of the European Union or any political
subdivision thereof, in each case, having one of the two highest rating
categories obtainable from either Xxxxx'x or S&P with maturities of 24
months or less from the date of acquisition;
(7) Indebtedness or preference shares with a maturity of three months or less
after the date of acquisition of Persons with a short-term debt rating of
A1+ granted by S&P or P1 granted by Xxxxx'x to which the Issuer or a
Restricted Subsidiary of the Issuer is beneficially entitled, and which
can be promptly realized by the Issuer or such Restricted Subsidiary
without condition; and
(8) interests in investment funds investing 95% or more of their assets in
securities of the types described in clauses (1) through (7) above.
"Change of Control" means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
properties or assets of the Issuer, the Company and its Subsidiaries
taken as a whole to any "person" (as that term is used in Section 13(d)
of the Exchange Act);
(2) the adoption of a plan relating to the liquidation or dissolution of the
Company;
(3) the consummation of any transaction (including, without limitation, any
merger or consolidation), the result of which is that any "person" (as
defined above) becomes the
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Beneficial Owner, directly or indirectly, of more than 35% of the Voting
Stock of the Company, measured by voting power rather than number of
shares; or
(4) the Company consolidates with, or merges with or into, any Person, or any
Person consolidates with, or merges with or into, the Company, in any
such event pursuant to a transaction in which any of the outstanding
Voting Stock of the Company or such other Person is converted into or
exchanged for cash, securities or other property, other than any such
transaction where the Voting Stock of the Company outstanding immediately
prior to such transaction is converted into or exchanged for Voting Stock
(other than Disqualified Stock) of the surviving or transferee Person
constituting a majority of the outstanding shares of such Voting Stock of
such surviving or transferee Person (immediately after giving effect to
such issuance).
"Clearstream Banking" means Clearstream Banking, S.A.
"Common Depositary" means The Bank of New York in its capacity as common
depositary for Euroclear and Clearstream Banking.
"Company" means SGL CARBON Aktiengesellschaft, and any and all successors
thereto.
"Company Guarantee" means the Guarantee provided by the Company.
"Consolidated Cash Flow" means, with respect to any specified Person for any
period, the Consolidated Net Income of such Person for such period plus,
without duplication:
(1) an amount equal to any extraordinary loss plus any net loss realized by
such Person or any of its Restricted Subsidiaries in connection with an
Asset Sale, to the extent such losses were deducted in computing such
Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such Person and its
Restricted Subsidiaries for such period, to the extent that such
provision for taxes was deducted in computing such Consolidated Net
Income; plus
(3) the Fixed Charges of such Person and its Restricted Subsidiaries for such
period, to the extent that such Fixed Charges were deducted in computing
such Consolidated Net Income; plus
(4) interest expense on pension obligations of such Person and its Restricted
Subsidiaries for such period to the extent such interest expense was
deducted in computing Consolidated Net Income; plus
(5) interest expense on, or additional provisions relating to, antitrust
fines existing at the Issue Date, to the extent such interest expense or
other amounts were deducted in computing Consolidated Net Income; plus
(6) the amount of any restructuring charge of such Person for such period, to
the extent that such charge was deducted in computing such Consolidated
Net Income; plus
(7) depreciation, amortization (including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in a prior
period) and other non-cash expenses (excluding any such non-cash expense
to the extent that it
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represents an accrual of or reserve for cash expenses in any future
period or amortization of a prepaid cash expense that was paid in a prior
period) of such Person and its Restricted Subsidiaries for such period to
the extent that such depreciation, amortization and other non-cash
expenses were deducted in computing such Consolidated Net Income; minus
(8) non-cash items increasing such Consolidated Net Income for such period,
other than the accrual of revenue in the ordinary course of business,
in each case, on a consolidated basis and determined in accordance with IFRS.
Notwithstanding the preceding, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other non-cash expenses
of, a Restricted Subsidiary of the Company will be added to Consolidated Net
Income to compute Consolidated Cash Flow of the Company only to the extent that
a corresponding amount would be permitted at the date of determination to be
dividended to the Company by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any specified Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with IFRS; provided that:
(1) the Net Income (but not loss) of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting
will be included only to the extent of the amount of dividends or similar
distributions paid in cash to the specified Person or a Restricted
Subsidiary of the Person;
(2) the equity in a net loss of any Person that is not a Restricted
Subsidiary or that is accounted for by the equity method of accounting
will be included in determining Consolidated Net Income to the extent
such loss has been funded with cash from the Company or a Restricted
Subsidiary and if it has not otherwise been included in determining Net
Income;
(3) the Net Income of any Restricted Subsidiary will be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is not at
the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders;
(4) the cumulative effect of a change in accounting principles will be
excluded;
(5) to the extent reflected in Net Income, the effect of non-cash items
resulting from any write-up, write-down or write-off of assets of the
Company or a Restricted Subsidiary in connection with any acquisition
will be excluded; and
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(6) any non-cash compensation realized for grants of performance shares,
stock options, restricted stock or other rights to officers, directors
and employees of the Company or any Restricted Subsidiary; provided that
such shares, options, stock or other rights can be redeemed at the option
of the holder only for Capital Stock of the Company (other than
Disqualified Stock).
"Continuing Directors" means, as of any date of determination, any member of
the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of
such Board of Directors at the time of such nomination or election.
"Convertible Bonds" means the 3.5% Bearer Bonds of 2000/2005 of the Company.
"Convertible Trust Deed" means the trust indenture, dated the Issue Date,
pursuant to which the Guarantors have guaranteed the Convertible Bonds, the
Company and certain of its Subsidiaries have granted to the Convertible Trustee
security over certain of their assets and the Convertible Trustee has been
appointed.
"Convertible Trustee" means The Bank of New York, in its capacity as the
trustee under the Convertible Trust Deed, together with any successor thereto.
"Corporate Trust Office of the Trustee" will be at the address of the Trustee
specified in Section 14.02 hereof or such other address as to which the Trustee
may give notice to the Company.
"Credit Facilities" means, one or more debt facilities (including, without
limitation, the Senior Facilities) or commercial paper facilities, in each
case, with banks or other institutional lenders providing for revolving credit
loans, term loans, receivables financing (including through the sale of
receivables to such lenders or to special purpose entities formed to borrow
from such lenders against such receivables) or letters of credit, in each case,
as amended, restated, modified, renewed, refunded, replaced (whether upon or
after termination or otherwise) or refinanced (including by means of sales of
debt securities to institutional investors) in whole or in part from time to
time.
"Default" means any event that is, or with the passage of time or the giving of
notice or both would be, an Event of Default.
"Definitive Registered Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit B hereto.
"Depositary" means Euroclear, Clearstream Banking and their respective nominees
and successors, acting through itself or the Common Depositary.
"Designated Senior Indebtedness" means:
(1) any Indebtedness outstanding under the Senior Facilities;
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(2) after the date that both Senior Facilities are terminated, Senior
Indebtedness (as a single class) outstanding under secured Permitted
Indebtedness Agreements (as defined in the Security Trust Agreement);
provided the principal amount of all such Indebtedness outstanding at the
relevant time is e25.0 million or more; and
(3) after the date that the Indebtedness referred to in clause (2) of this
definition is terminated, any other Senior Indebtedness permitted under
the Indenture the principal amount of which is e25.0 million or more and
that has been designated by the Company as "Designated Senior
Indebtedness."
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible, or for which it is
exchangeable, in each case, at the option of the holder of the Capital Stock),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder of the Capital Stock, in whole or in part, on or prior to the
date that is 180 days after the date on which the Notes mature.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock have the
right to require the Company to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale will not constitute
Disqualified Stock if the terms of such Capital Stock provide that the Company
may not repurchase or redeem any such Capital Stock pursuant to such provisions
unless such repurchase or redemption complies with Section 4.07. The amount of
Disqualified Stock deemed to be outstanding at any time for purposes of this
Indenture will be the maximum amount that the Company and its Restricted
Subsidiaries may become obligated to pay upon the maturity of, or pursuant to
any mandatory redemption provisions of, such Disqualified Stock, exclusive of
accrued dividends.
"Dutch Legend" means the legend set forth in Section 2.06(k)(4), which is
required to be placed on all Notes.
"EMU" means economic and monetary union as contemplated in the Treaty on
European Union.
"Enforcement Action" means:
(1) in relation to any Indebtedness, any action of any kind to:
(i) demand payment, declare prematurely due and payable or otherwise
seek to accelerate payment of or make payable on demand all or any
of that Indebtedness;
(ii) recover all or any of that Indebtedness (including by exercising
any right of set-off, except as required by law);
(iii) exercise or enforce any security in relation to (or given in
support of) all or any part of that Indebtedness (including under
the relevant security documents);
(iv) apply or petition for an Insolvency Event in relation to an
obligor; or
(v) commence any legal proceedings against the obligor in relation to
that Indebtedness; and
- 8 -
(2) in relation to any Hedging Obligations, any action of any kind to declare
an "early termination date" under any agreement relating thereto or
demand payment of any amount which would become payable following an
"early termination date";
provided that neither (i) the taking of any action necessary to preserve the
validity and existence of claims, including the registration of such claims
before any court or governmental authority nor (ii) the exercise by the
facility agent or the relevant lenders under the German Senior Facility of any
right to require the Company or any Guarantor to provide cash collateral in
respect of any letter of credit issued thereunder, in each case, to ensure that
the exposure of the relevant lenders under any applicable facility thereunder
does not exceed the commitments of such lenders in respect of such facility
shall, in either case, in and of itself, constitute an Enforcement Action.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"euro" or "[e]" means the single currency of participating member states of the
EMU.
"Euroclear" means Euroclear Bank, S.A./N.V., as operator of the Euroclear
system.
"Euro Equivalent" means with respect to any monetary amount in a currency other
than euros, at any time of determination thereof, the amount of euros obtained
by converting such foreign currency involved in such computation into euros at
the spot rate for purchase of euros with the applicable foreign currency as
published in The Wall Street Journal in the "Exchange Rates" column under the
heading "Currency Trading" on the date two business days prior to such
determination.
"European Union" means the European Union, including the countries of Austria,
Belgium, Denmark, France, Finland, Germany, Greece, Ireland, Italy, Luxembourg,
the Netherlands, Portugal, Spain, Sweden and the United Kingdom, but not
including any country which becomes a member of the European Union after the
Issue Date.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended.
"Existing Indebtedness" means Indebtedness of the Company and its Subsidiaries
(other than Indebtedness under the Senior Facilities) in existence on the Issue
Date, until such amounts are repaid.
"Fair Market Value" means the value that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress or
necessity of either party, determined in good faith by the Board of Directors
of the Company (unless otherwise provided in the Indenture).
"Final Discharge Date" has the meaning set forth in the Intercreditor
Agreement.
"Fixed Charge Coverage Ratio" means with respect to any specified Person for
any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the specified Person or any of its Restricted Subsidiaries incurs, assumes,
guarantees, repays, repurchases, redeems, defeases or otherwise discharges any
Indebtedness (other than ordinary working capital borrowings) or
- 9 -
issues, repurchases or redeems preferred stock subsequent to the commencement
of the period for which the Fixed Charge Coverage Ratio is being calculated and
on or prior to the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed
Charge Coverage Ratio will be calculated giving pro forma effect to such
incurrence, assumption, Guarantee, repayment, repurchase, redemption,
defeasance or other discharge of Indebtedness, or such issuance, repurchase or
redemption of preferred stock, and the use of the proceeds therefrom, as if the
same had occurred at the beginning of the applicable four-quarter reference
period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations, or
any Person or any of its Restricted Subsidiaries acquired by the
specified Person or any of its Restricted Subsidiaries, and including any
related financing transactions and including increases in ownership of
Restricted Subsidiaries, during the four-quarter reference period or
subsequent to such reference period and on or prior to the Calculation
Date will be given pro forma effect as if they had occurred on the first
day of the four-quarter reference period;
(2) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with IFRS, and operations or businesses (and
ownership interests therein) disposed of prior to the Calculation Date,
will be excluded;
(3) the Fixed Charges attributable to discontinued operations, as determined
in accordance with IFRS, and operations or businesses (and ownership
interests therein) disposed of prior to the Calculation Date, will be
excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the specified Person or any of
its Restricted Subsidiaries following the Calculation Date;
(4) any Person that is a Restricted Subsidiary on the Calculation Date will
be deemed to have been a Restricted Subsidiary at all times during such
four-quarter period;
(5) any Person that is not a Restricted Subsidiary on the Calculation Date
will be deemed not to have been a Restricted Subsidiary at any time
during such four-quarter period; and
(6) if any Indebtedness bears a floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate in effect
on the Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligation applicable to such
Indebtedness if such Hedging Obligation has a remaining term as at the
Calculation Date in excess of 12 months).
For purposes of this definition, whenever pro forma effect is to be given to
any transaction or calculation under this definition, the pro forma
calculations will be determined in good faith by a responsible financial or
accounting officer of the Company (including pro forma expense and cost
reductions).
"Fixed Charges" means, with respect to any specified Person for any period, the
sum, without duplication, of:
- 10 -
(1) the consolidated interest expense of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued, including, without
limitation, amortization of debt issuance costs and original issue
discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect
to Attributable Indebtedness, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers' acceptance
financings, and net of the effect of all payments made or received
pursuant to Hedging Obligations in respect of interest rates; provided,
however, that there shall be excluded therefrom any such interest expense
on pension obligations of such Person and its Restricted Subsidiaries and
any such interest expense on the antitrust fines existing at the Issue
Date; plus
(2) the consolidated interest expense of such Person and its Restricted
Subsidiaries that was capitalized during such period; plus
(3) any interest on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries, whether or
not such Guarantee or Lien is called upon; plus
(4) the product of all dividends, whether paid or accrued and whether or not
in cash, on any series of preferred stock of such Person or any of its
Restricted Subsidiaries, other than dividends on Equity Interests payable
solely in Equity Interests of the Company (other than Disqualified Stock)
or to the Company or a Restricted Subsidiary of the Company,
in each case, determined on a consolidated basis in accordance with IFRS.
"Funding Loan" means the subordinated note proceeds loan, dated the Issue Date,
pursuant to which the Issuer loaned the proceeds from the offering of the Notes
to the Company.
"Funding Loan Pledge" means the pledge of the Funding Loan entered into by the
Issuer and the Security Agent.
"German Senior Facility" means that certain credit agreement, as amended and
restated as of February 3, 2004, by and among the Company, Deutsche Bank AG,
Dresdner Kleinwort Xxxxxxxxxxx, Credit Suisse First Boston International and
Bayerische Landesbank, as Mandated Lead Arrangers and Deutsche Bank Luxembourg,
S.A. as agent, providing for up to [e]227.0 million of revolving credit and
term loan borrowings, as amended, extended, renewed, restated, supplemented or
otherwise modified (in whole or in part, and without limitation as to amount,
terms, conditions, covenants and other provisions) from time to time, and any
agreement (and related document) governing Indebtedness incurred to
substantially contemporaneously refinance or otherwise replace, in whole or in
part, the borrowings and commitments then outstanding.
"Global Notes" means, individually and collectively, each of the U.S. Global
Note and the International Global Note deposited with or on behalf of and
registered in the name of the Common Depositary or its nominee, substantially
in the form of Exhibit A hereto issued in accordance with Section 2.01,
2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section 2.06(k)(3), which is
required to be placed on all Global Notes issued under this Indenture.
- 11 -
"Government Securities" means direct obligations of, or obligations guaranteed
by, the Federal Republic of Germany and the payment of which guarantee or
obligations the full faith and credit of the Federal Republic of Germany is
pledged and which are not callable or redeemable at the option of the Issuer
thereof.
"guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial
statement conditions or otherwise).
"Guarantee" means the Guarantee by each Guarantor of the Issuer's obligations
under this Indenture and the Notes, executed in the form set forth as Exhibit
E.
"Guarantors" means each of the Company and the Subsidiary Guarantors.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements (whether from fixed to floating or from
floating to fixed), interest rate cap agreements and interest rate collar
agreements;
(2) other agreements or arrangements designed to manage interest rates or
interest rate risk; and
(3) other agreements or arrangements designed to protect against fluctuations
in currency exchange rates or commodity prices.
"Holder" means a Person in whose name a Note is registered.
"IFRS" means the International Financial Reporting Standards, replacing the
earlier IAS, or International Accounting Standards, as in effect from time to
time.
"Indebtedness" means, with respect to any specified Person, any indebtedness of
such Person (excluding accrued expenses and trade payables), whether or not
contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements in respect thereof);
(3) in respect of banker's acceptances;
(4) representing Capital Lease Obligations or Attributable Indebtedness in
respect of sale and leaseback transactions;
(5) representing the balance deferred and unpaid of the purchase price of any
property or services due more than six months after such property is
acquired or such services are completed; or
(6) representing any Hedging Obligations,
- 12 -
if and to the extent any of the preceding items (other than letters of credit,
Attributable Indebtedness and Hedging Obligations) would appear as a liability
upon a balance sheet of the specified Person prepared in accordance with IFRS.
In addition, the term "Indebtedness" includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the guarantee by the specified Person of any Indebtedness
of any other Person.
"Indenture" means this Indenture, as amended or supplemented from time to time.
"Indirect Participant" means a Person who holds a beneficial interest in a
Global Note through a Participant.
"Initial Notes" means the first [e]270 million aggregate principal amount of
Notes issued under this Indenture on the Issue Date.
"Insolvency Event" means:
(1) with respect to the Issuer or any Guarantor (each, an "Obligor"), such
Obligor is unable or admits inability to pay its debts as they fall due,
suspends making payments on any of its debts or, by reason of actual or
anticipated financial difficulties, commences negotiations with one or
more of its creditors with a view to rescheduling any of its
Indebtedness, or any other event occurs with respect to such Obligor
which, under the laws of any jurisdiction to which it is subject or in
which it has assets, has a similar or analogous effect, and, more
particularly, with respect to any Obligor incorporated under the laws of
Germany (a "German Obligor"), such German Obligor is unable to pay its
debts as they fall due (Zahlungsunf{a"}higkeit) or is over indebted
({u"}berschuldet), commences negotiations with any one or more of its
creditors with a view to the general readjustment or rescheduling of its
Indebtedness or makes a general assignment for the benefit of or a
composition with its creditors or, for any of the reasons set out in
Sections 17-19 of the German Insolvency Code (Insolvenzordnung), any
German Obligor files for insolvency (Antrag auf Er{o"}ffnung eines
Insolvenzverfahrens) or the board of directors (Gesch{a"}ftsf{u"}hrung)
of any German Obligor is required by law to file for insolvency or the
competent court takes any of the actions set out in Section 21 of the
German Insolvenzordnung or institutes insolvency proceedings against any
German Obligor (Er{o"}ffnung des Insolvenzverfahrens); or
(2) with respect to any Obligor, any corporate action, legal proceedings or
other procedure or step is taken with respect to such Obligor in relation
to:
(i) the suspension of payments, a moratorium of any Indebtedness,
winding-up, dissolution, administration or reorganization (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
such Obligor (other than a solvent liquidation or reorganization);
(ii) a composition, assignment or arrangement with any creditor of such
Obligor;
(iii) the appointment of a liquidator (other than in respect of a solvent
liquidation of such Obligor), receiver, administrator, provisional
administrator, administrative receiver, compulsory manager or other
similar officer in respect of such Obligor or its assets; or
- 13 -
(iv) enforcement of any security over any material assets of such
Obligor,
(v) or any analogous procedure or step taken in any jurisdiction, in
each case under this clause (2), unless such corporate action,
legal proceedings or analogous procedure or step is fully
discontinued within fourteen days of its commencement.
"International Definitive Registered Note" means a Definitive Registered Note
bearing the Regulation S Legend and the Dutch Legend.
"International Global Note" means the Global Note bearing the Regulation S
Legend and the Dutch Legend that will be issued on the Issue Date in a
principal amount equal to the outstanding principal amount of the Notes sold in
reliance on Regulation S.
"International Note" means an International Definitive Registered Note or an
International Global Note, as applicable.
"Intercreditor Agreement" means the Original Intercreditor Agreement and any
other intercreditor agreement entered into pursuant to the terms of this
Indenture.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business), payments made pursuant
to any profit transfer agreement (Gewinnabf{u"}hrungsvertrag) under
{section}{section} 291-307 of the German Stock Corporation Act (Aktiengestz),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with IFRS.
If the Company or any Subsidiary of the Company sells or otherwise disposes of
any Equity Interests of any direct or indirect Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such Person is no
longer a Subsidiary of the Company, the Company will be deemed to have made an
Investment on the date of any such sale or disposition equal to the Fair Market
Value of the Company's Investments in such Subsidiary that were not sold or
disposed of in an amount determined as provided in the final paragraph of
Section 4.07. Except as otherwise provided in this Indenture, the amount of an
Investment will be determined at the time the Investment is made and without
giving effect to subsequent changes in value.
"Issue Date" means February 9, 2004, the original date of the issuance of the
Notes.
"Issuer Permitted Investment" means an Investment by the Issuer in:
(1) cash and Cash Equivalents;
(2) stock, obligations or securities received in settlement of debts created
in the ordinary course of business and owing to the Issuer or in
satisfaction of judgments; and
(3) the Funding Loan.
"Issuer Permitted Liens" means, with respect to the Issuer:
- 14 -
(1) Liens for taxes, assessments or government charges or levies on the
property of the Issuer if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good
faith by appropriate proceedings promptly instituted and diligently
concluded; provided that any reserve or other appropriate provision that
shall be required in conformity with IFRS shall have been made therefor;
(2) Liens granted to the Trustee for its compensation pursuant to this
Indenture; and
(3) Liens created for the benefit of (or to secure) the Notes or the
Guarantees.
"Issuer Request" means a written request or order signed in the name of the
Issuer by any Officer of the Issuer and delivered to the relevant Person.
"Issuer Restricted Payment" with respect to the Issuer means:
(1) any dividend or distribution (whether made in cash, securities or other
property) declared or paid on or with respect to any shares of Capital
Stock of the Issuer, except for any dividend or distribution that is made
solely to the Company or any dividend or distribution payable solely in
shares of Capital Stock (other than Disqualified Stock) of the Issuer;
(2) the purchase, repurchase, redemption, acquisition or retirement for value
of any Capital Stock of the Issuer or any securities exchangeable for or
convertible into any such Capital Stock, including (1) in connection with
any merger, consolidation or amalgamation and (2) the exercise of any
option to exchange any Capital Stock;
(3) the purchase, repurchase, redemption, acquisition or retirement for
value, prior to the date for any scheduled maturity, sinking fund or
amortization or other installment payment, of any Indebtedness of the
Issuer that is subordinate or junior in fight of payment to the Notes or
any guarantee pursuant to a written agreement to that effect; or
(4) any Investment (other than Issuer Permitted Investments) in any Person.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions are not required to be open in Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx or
the State of New York. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue on such payment for the
intervening period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such asset, whether
or not filed, recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any lease in the
nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Majority Senior Lenders" has the meaning set forth in the Intercreditor
Agreement.
"Moody's" means Xxxxx'x Investors Service, Inc.
- 15 -
"Net Income" means, with respect to any specified Person, the net income (loss)
of such Person, determined in accordance with IFRS and before any reduction in
respect of preferred stock dividends, excluding, however:
(1) any after tax gain or loss realized in connection with: (a) any Asset
Sale; or (b) extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(2) any net after tax extraordinary gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by the Company or any
of its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any
non-cash consideration received in any Asset Sale), net of the direct costs
relating to such Asset Sale, including, without limitation, legal, accounting
and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as a result of
the Asset Sale, in each case, after taking into account any available tax
credits or deductions and any tax sharing arrangements and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with IFRS.
"Non-Recourse Indebtedness" means Indebtedness:
(1) as to which none of the Issuer, the Company nor any of its Restricted
Subsidiaries (a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute Indebtedness),
(b) is directly or indirectly liable as a guarantor or otherwise, or (c)
constitutes the lender;
(2) no default with respect to which (including any rights that the holders
of the Indebtedness may have to take Enforcement Action against an
Unrestricted Subsidiary) would permit upon notice, lapse of time or both
any holder of any other Indebtedness of the Issuer, the Company or any of
its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment of the Indebtedness to be accelerated
or payable prior to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that they will not
have any recourse to the stock or assets of the Issuer, the Company or
any of its Restricted Subsidiaries.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Note Security Agent" means The Bank of New York or any other note security
agent under the Security Documents.
"Notes" has the meaning assigned to it in the preamble to this Indenture.
Unless the context otherwise requires, all references to the Notes shall
include the Initial Notes and any Additional Notes.
"Obligations" means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages, Additional Amounts and other liabilities payable under
the documentation governing any Indebtedness.
- 16 -
"Original Intercreditor Agreement" means the intercreditor agreement, dated
February 9, 2004, among the agents under the German Senior Facility and the
U.S. Senior Facility, the Trustee, the Convertible Trustee, the Security Agent,
the Issuer, the Guarantors and others and attached hereto as Exhibit G.
"Officer" means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such Person (whether acting in such capacity
or pursuant to power of attorney).
"Officers' Certificate" means a certificate signed on behalf of the Company by
two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Issuer, that meets the requirements of Section 13.03
hereof.
"Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 13.03 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of
the Company or the Trustee.
"Participant" means, with respect to the Depositary, a Person who has an
account with the Depositary.
"Permitted Business" means any business in which the Company or its Restricted
Subsidiaries was engaged on the date of this Indenture and any business
related, ancillary or complementary to any such business.
"Permitted Investments" means:
(1) any Investment in the Company or in a Restricted Subsidiary of the
Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the Company
in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company;
(4) any Investment made as a result of the receipt of non-cash consideration
from an Asset Sale that was made pursuant to and in compliance with
Section 4.10;
(5) any acquisition of assets or Capital Stock solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of the
Company;
(6) any Investments received in compromise or resolution of (A) obligations
of trade creditors or customers that were incurred in the ordinary course
of business of the Company or any of its Restricted Subsidiaries,
including pursuant to any plan of
- 17 -
reorganization or similar arrangement upon the bankruptcy or insolvency
of any trade creditor or customer; or (B) litigation, arbitration or
other disputes;
(7) Investments represented by Hedging Obligations;
(8) commission, payroll, travel and similar advances to cover matters that
are expected at the time of such advances to be treated as expenses in
accordance with IFRS;
(9) loans or advances to employees made in the ordinary course of business of
the Company or the Restricted Subsidiary of the Company in an aggregate
principal amount not to exceed [e]5.0 million at any one time
outstanding;
(10) repurchases of the Notes;
(11) Indebtedness of the Company or a Restricted Subsidiary described under
clauses (6), (7) and (9) of the definition of Permitted Indebtedness;
(12) Investments resulting from the disposition of assets in transactions
excluded from the definition of "Asset Sale" pursuant to clause (6) of
the exclusions from such definition; and
(13) Investments in joint ventures not to exceed e10.0 million per annum and
when taken together with all investments made pursuant to this clause
(13) not to exceed *50.0 million.
"Permitted Junior Securities" means:
(1) Equity Interests in the Company or any Subsidiary Guarantor; or
(2) debt securities that are subordinated to all Senior Indebtedness and any
debt securities issued in exchange for Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the
Guarantees are subordinated to Senior Indebtedness under this Indenture.
"Permitted Liens" means:
(1) Liens on assets of the Company or any Restricted Subsidiary securing
Senior Indebtedness that was permitted by the terms of this Indenture to
be incurred;
(2) Liens in favor of the Company or any Restricted Subsidiary;
(3) Liens on property of a Person existing at the time such Person is merged
with or into or consolidated with the Company or any Subsidiary of the
Company; provided that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any
assets other than those of the Person merged into or consolidated with
the Company or the Subsidiary;
(4) Liens on property (including Capital Stock) existing at the time of
acquisition of the property by the Company or any Subsidiary of the
Company; provided that such Liens were in existence prior to, such
acquisition, and not incurred in contemplation of, such acquisition;
- 18 -
(5) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(6) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (4) of the second paragraph of Section 4.09 covering
only the assets acquired with or financed by such Indebtedness;
(7) Liens existing on the date of this Indenture;
(8) Liens for taxes, assessments or governmental charges or claims that are
not yet delinquent or that are being contested in good faith by
appropriate proceedings promptly instituted and diligently concluded;
provided that any reserve or other appropriate provision as is required
in conformity with IFRS has been made therefor;
(9) Liens imposed by law, such as carriers', warehousemen's, landlord's and
mechanics' Liens, in each case, incurred in the ordinary course of
business;
(10) survey exceptions, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to
the use of real property that were not incurred in connection with
Indebtedness and that do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(11) Liens created for the benefit of (or to secure) the Notes, including
Additional Notes (or the Guarantees, including Guarantees of Additional
Notes);
(12) Liens to secure any Permitted Refinancing Indebtedness permitted to be
incurred under this Indenture; provided, however, that:
(a) the new Lien shall be limited to all or part of the same property
and assets that secured or, under the written agreements pursuant
to which the original Lien arose, could secure the original Lien
(plus improvements and accessions to, such property or proceeds or
distributions thereof); and
(b) the Indebtedness secured by the new Lien is not increased to any
amount greater than the sum of (x) the outstanding principal
amount, or, if greater, committed amount, of the Permitted
Referencing Indebtedness and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such renewal,
refunding, refinancing, replacement, defeasance or discharge;
(13) pledges or deposits by such Person under workers compensation laws,
unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or
deposits of cash or government bonds to secure surety or appeal bonds to
which such Person is a party, or deposits as security for contested taxes
or import duties or for the payment of rent, in each case incurred in the
ordinary course of business;
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(14) Liens securing Hedging Obligations entered into in the ordinary course of
business so long as such Hedging Obligations relate to Indebtedness that
is, and is permitted to be under this Indenture, secured by a Lien on the
same property securing such Hedging Obligations;
(15) Liens securing the Convertible Bonds that are pari passu and pro rata to
the Liens securing the Notes and are created pursuant and subject to the
Convertible Trust Deed (or on terms substantially the same as those set
forth in the Convertible Trust Deed);
(16) Any interest or title of a lessor under any Capital Lease Obligation
permitted to be incurred under this Indenture; and
(17) Liens incurred in the ordinary course of business of the Company or any
Restricted Subsidiary of the Company with respect to obligations that do
not exceed *5.0 million at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Issuer, the
Company or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to renew, refund, refinance, replace, defease or
discharge other Indebtedness of the Issuer, the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness renewed, refunded,
refinanced, replaced, defeased or discharged (plus all accrued interest
on the Indebtedness and the amount of all fees and expenses, including
premiums, incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged;
(3) if the Indebtedness being renewed, refunded, refinanced, replaced,
defeased or discharged is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of the Indebtedness being refunded,
refinanced, replaced, defeased or discharged, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the
Holders of Notes as those contained in the documentation governing the
Indebtedness being renewed, refunded, refinanced, replaced, defeased or
discharged; and
(4) such Indebtedness is incurred either by the Issuer, the Company or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
renewed, refunded, refinanced, replaced, defeased or discharged.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Pledged Entities" means each of SGL CARBON GmbH (Germany), SGL ACOTEC GmbH
(Germany), SGL CARBON GmbH & Co. KG (Austria), SGL ACOTEC S.A.S. (France), SGL
- 20 -
CARBON S.p.A. (Italy), SGL CARBON S.A. (Spain), SGL CARBON Polska S.A.
(Poland), SGL CARBON LLC (Nevada) and SGL Technic Inc. (California).
"Pledging Entities" means the direct parent company of each of the Pledged
Entities.
"Public Equity Offering" means an offer and sale of Capital Stock (other than
Disqualified Stock) of the Company other than such an offer and sale pursuant
to a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Company.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Regular Interest Payment Date" means February 1 and August 1 of each year.
"Regulation S" means Regulation S promulgated under the Securities Act.
"Regulation S Legend" means the legend set forth in Section 2.06(k)(2) hereof.
"Representative" means the Trustee or any trustee, agent or representative for
any Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee, means any officer
within the Corporate Trust Administration of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted Investment.
"Restricted Subsidiary" of a Person means any Subsidiary of the referent Person
that is not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated under the Securities Act.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Security Agent" means The Bank of New York, in its capacity as Security Agent
hereunder and under the Security Documents.
"Security Trust Agreement" means that certain agreement to be entered into
among the Company, the agents for the lenders under the Senior Facilities, the
Trustee and the trustee for the holders of the Convertible Bonds, among others,
in respect of security provided for the
- 21 -
Senior Facilities and certain ancillary Indebtedness and, in respect of certain
security, the Notes and the Convertible Bonds, and attached hereto as Exhibit
H.
"Security Documents" means the Share Pledges and the Funding Loan Pledge and
any other agreement creating a Lien in favor of the Trustee and/or the Holders
of the Notes and, if applicable, the holders of the Convertible Bonds.
"Senior Declared Default" means any Designated Senior Indebtedness has been
declared to be prematurely due and payable or payable on demand (and demand has
been made) by reason of an event of default under such Designated Senior
Indebtedness.
"Senior Default" has the meaning set forth in the Intercreditor Agreement.
"Senior Discharge Date" has the meaning set forth in the Intercreditor
Agreement.
"Senior Facilities" means the U.S. Senior Facility and the German Senior
Facility.
"Senior Indebtedness" means:
(1) all Indebtedness of the Company or any Subsidiary Guarantor outstanding
under the Senior Facilities and all Hedging Obligations with respect
thereto;
(2) any other Indebtedness of the Company or any Subsidiary Guarantor
permitted to be incurred under the terms of this Indenture, unless the
instrument under which such Indebtedness is incurred expressly provides
that it is on a parity with or subordinated in right of payment to any
Guarantee; and
(3) all Obligations with respect to the items listed in the preceding clauses
(1) and (2) (including interest accruing after an Insolvency Events,
whether allowed or allowable in any proceeding related thereto).
Notwithstanding anything to the contrary in the preceding, Senior Indebtedness
will not include:
(1) any liability for federal, state, local or other taxes owed or owing by
the Company or any Subsidiary Guarantor;
(2) any intercompany Indebtedness of the Company or any of its Subsidiaries
to the Company or any of its Affiliates;
(3) any trade payables;
(4) Indebtedness under the Funding Loan;
(5) Indebtedness under the Convertible Bonds or the guarantees thereof;
(6) the portion of any Indebtedness that is incurred in violation of this
Indenture; or
(7) Indebtedness which is classified as non-recourse in accordance with IFRS
or any unsecured claim arising in respect thereof by reason of the
application of section 1111(b)(1) of the Bankruptcy Code.
"Senior Payment Default" has the meaning set forth in the Intercreditor
Agreement.
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"Share Pledges" means each of the second-ranking pledges of the Capital Stock
of the Subsidiary Guarantors, SGL CARBON Polska S.A. and any other Subsidiary
of the Company created pursuant hereto, in each case, for the direct or
indirect benefit of the Holders of the Notes.
"Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the date of
this Indenture.
"S&P" means Standard & Poor's Ratings Group.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the documentation governing
such Indebtedness as of the date of this Indenture, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any specified Person, other than the
Issuer:
(1) any corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency and after giving
effect to any voting agreement or stockholders' agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business
entity is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(2) any partnership (a) the sole general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or (b) the
only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"Subsidiary Guarantees" means the Guarantees provided by each of the Subsidiary
Guarantors.
"Subsidiary Guarantors" means each of:
(1) SGL CARBON GmbH (Germany), SGL ACOTEC GmbH (Germany), SGL CARBON GmbH &
Co KG (Austria), SGL ACOTEC S.A. (France), SGL CARBON S.p.A. (Italy), SGL
CARBON S.A. (Spain), SGL CARBON LLC (Nevada) and SGL Technic Inc.
(California); and
(2) any other Subsidiary of the Company that executes a Guarantee in
accordance with the provisions of this Indenture,
and their respective successors and assigns, in each case, until the Guarantee
of such Person has been released in accordance with the provisions of this
Indenture.
"TIA" means the U.S. Trust Indenture Act of 1939, as amended (15 U.S.C.
{section}{section} 77aaa-77bbbb).
"Trustee" means The Bank of New York, in its capacity as trustee hereunder,
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
- 23 -
"Unrestricted Definitive Registered Note" means a Definitive Registered Note
that does not bear and is not required to bear the 144A Legend of the
Regulation S Legend but which, in any event, bears the Dutch Legend.
"Unrestricted Subsidiary" means any Subsidiary of the Company or any successor
to any of them) that is designated by the Board of Directors of the Company as
an Unrestricted Subsidiary pursuant to a resolution of the Board of Directors,
but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Indebtedness, unless at the
time of such designation or subsequently, the aggregate principal amount
of such Indebtedness that is not Non-Recourse Indebtedness is deemed to
be a Restricted Investment made in accordance with Section 4.07;
(2) except as permitted by Section 4.11, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no 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;
(3) is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a) to
subscribe for additional Equity Interests or (b) to maintain or preserve
such Person's financial condition or to cause such Person to achieve any
specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Restricted
Subsidiaries.
"U.S. GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"U.S. Global Note" means the Global Note bearing the 144A Legend and the Dutch
Legend, and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that represent the outstanding principal amount of
the Notes acquired in reliance on Rule 144A.
"U.S. Note" means a 144A Definitive Registered Note or a U.S. Global Note, as
applicable.
"U.S. Person" means a U.S. Person as defined in Rule 902(k) promulgated under
the Securities Act.
"U.S. Senior Facility" means that certain Credit Agreement, dated February 3,
2003, by and among the Company and Credit Suisse First Boston, providing for up
to $116.0 million of revolving credit and term loan borrowings, as amended,
extended, renewed, restated, supplemented or otherwise modified (in whole or in
part, and without limitation as to amount, terms, conditions, covenants and
other provisions) from time to time, and any agreement (and related document)
governing Indebtedness incurred to substantially contemporaneously
- 24 -
refinance or otherwise replace, in whole or in part, the borrowings and
commitments then outstanding.
"Voting Stock" of any specified Person as of any date means the Capital Stock
of such Person that is at the time entitled to vote in the election of the
Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness at
any date, the number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly-Owned Restricted Subsidiary" of any specified Person means a Subsidiary
of such Person all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) will at the time
be owned by such Person or by one or more Wholly-Owned Restricted Subsidiaries
of such Person.
SECTION 1.02 Other Definitions.
Defined in
Term Section
"Additional Notes"........................................ 2.16
"Affiliate Transaction"................................... 4.11
"Asset Sale Offer"........................................ 3.09
"Authentication Order".................................... 2.02
"Book-Entry Agent"........................................ 2.03
"Change of Control Offer"................................. 4.15
"Covenant Defeasance"..................................... 8.03
"Event of Default"........................................ 6.01
"Excess Proceeds"......................................... 4.10
"incur"................................................... 4.09
"Legal Defeasance"........................................ 8.02
"Offer Amount"............................................ 3.09
"Offer Period"............................................ 3.09
"Paying Agent"............................................ 2.03
"Permitted Indebtedness".................................. 4.09
"Payment Blockage Notice"................................. 11.02
"Payment Default"......................................... 6.01
"Purchase Date"........................................... 3.09
"Registrar"............................................... 2.03
"Relevant Taxing Jurisdiction"............................ 4.22
"Restricted Payments"..................................... 4.07
"Tax Redemption Date" .................................... 3.10
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture as if this
Indenture was required to be qualified under the TIA.
The following TIA terms used in this Indenture have the following meanings:
(1) "indenture securities" means the Notes;
(2) "indenture security Holder" means a Holder of a Note;
(3) "indenture to be qualified" means this Indenture;
(4) "indenture trustee" or "institutional trustee" means the Trustee; and
(5) "obligor" on the Notes and the Guarantees means the Issuer and the
Guarantors, respectively, and any successor obligor upon the Notes and
the Guarantees, respectively.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the
meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with IFRS;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural include the
singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions;
(7) references to sections of or rules under the Securities Act will be
deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time; and
(8) unless otherwise indicated, references to any agreement, instrument or
deed are references to such agreement, instrument or deed as amended,
supplemented, restated or otherwise modified in accordance with this
Indenture.
- 26 -
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating.
(a) Global Notes. Notes offered and sold in reliance on Rule 144A shall be
issued initially in the form of a U.S. Global Note, duly executed by the
Issuer, endorsed by each Guarantor and authenticated by the Trustee as
hereinafter provided. Notes offered and sold in reliance on Regulation S
shall be issued initially in the form of the International Global Note,
duly executed by the Issuer, endorsed by each Guarantor and authenticated
by the Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall
be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time
endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased,
as appropriate, by the Registrar or the Trustee to reflect exchanges,
repurchases, redemptions and transfers of interests therein, in
accordance with the terms of this Indenture.
The terms and provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this Indenture and the Issuer, the
Guarantors, the Trustee and the Security Agent, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of any
Note or any Guarantee conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be
controlling.
Ownership of interests in the Global Notes will be limited to
Participants and Indirect Participants. Book-Entry Interests in the
Global Notes will be shown on, and transfers thereof will be effected
only through, records maintained in book-entry form by the Depositary and
its Participants. The Applicable Procedures shall be applicable to
Book-Entry Interests in Global Notes.
Except as set forth in Section 2.06(a) hereof, the Global Notes may be
transferred, in whole and not in part, only to a nominee or a successor
of the Depositary or the Common Depositary.
(b) Definitive Registered Notes. Definitive Registered Notes issued upon
transfer of a Book-Entry Interest or a Definitive Registered Note, or in
exchange for a Book-Entry Interest or a Definitive Registered Note, shall
be issued in accordance with this Indenture.
(c) Book-Entry Provisions. Neither Participants nor Indirect Participants
shall have any rights either under this Indenture or under any Global
Note held on their behalf by the Depositary. Notwithstanding the
foregoing, nothing herein shall prevent the Issuer, any Guarantor, the
Trustee or any Agent from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Participants, the operation of customary
practices of such Depositary governing the exercise of the rights of an
owner of a Book-Entry Interest in any Global Note.
- 27 -
(d) Note Forms. The Global Notes and the Definitive Registered Notes shall be
issuable only in registered form, substantially in the form set forth as
Exhibit A and Exhibit B hereto, respectively. The Notes shall be issued
without coupons and only in denominations of [e]1,000 principal amount or
any integral multiple thereof.
(e) Dating. Each Note shall be dated the date of its authentication.
SECTION 2.02 Execution and Authentication.
(a) Two Officers of the Issuer shall execute the Notes on behalf of the
Issuer by manual or facsimile signature. The Issuer's seal may but need
not be impressed, affixed, imprinted or reproduced on the Notes.
(b) If an Officer whose signature is on a Note no longer holds that office at
the time the Note is authenticated or at any time thereafter, the Note
shall be valid nevertheless.
(c) A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
(d) The Trustee shall authenticate Notes on the Issue Date in an aggregate
principal amount of [e]270.0 million, upon receipt of an Issuer Request
signed by two Officers of the Issuer directing the Trustee to
authenticate the Notes and certifying that all conditions precedent to
the issuance of the Notes contained herein have been complied with (an
"Authentication Order"). The Trustee shall authenticate Additional Notes
upon receipt of an Authentication Order relating thereto.
(e) The Trustee may appoint an authenticating agent acceptable to the Issuer
to authenticate Notes. Unless limited by the terms of such appointment,
an authenticating agent may authenticate Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating agent shall
have the same rights as the Trustee in any dealings hereunder with the
Issuer or with any of the Issuer's Affiliates.
SECTION 2.03 Appointment of Agents.
(a) The Issuer will maintain one or more paying agents (each, a "Paying
Agent") for the Notes in each of (i) the Borough of Manhattan, City of
New York (the "Principal Paying Agent"), (ii) the City of London, (iii)
when and for so long as the Notes are listed on the Luxembourg Stock
Exchange, Luxembourg and (iv) any other location required by the last
sentence of this clause 2.03(a). The Issuer shall also maintain (i) an
office or agency where notices and demands to or upon the Issuer and/or
any Guarantors in respect of the Notes, the Guarantee and this Indenture
may be served and (ii) an office or agency in the location where the
Common Depositary holds the Global Notes where annotation of increases
and decreases of the principal amount of Global Notes will be made
("Book-Entry Agent"). The Issuer will use its best efforts to maintain a
Paying Agent in a member state of the European Union that will not be
obliged to withhold or deduct tax pursuant to the European Union
Directive adopted by the ECOFIN Council on June 3, 2003 on the taxation
of savings or any law implementing or complying with, or introduced to
conform to, such Directive.
- 28 -
(b) The Issuer will maintain a registrar (each, a "Registrar") with offices
in each of (i) the Borough of Manhattan, City of New York, (ii) the City
of London and (iii) for so long as the Notes are listed on the Luxembourg
Stock Exchange, in Luxembourg. The Registrars will maintain a register
(the "Register") reflecting ownership of Notes outstanding from time to
time and will make payments on and facilitate transfer of Notes on behalf
of the Company.
(c) The Issuer may change the Paying Agents or the Registrars without prior
notice to the Holders. So long as the Notes are listed on the Luxembourg
Stock Exchange, notice of a change of Paying Agent or Registrar will be
published in a newspaper having a general circulation in Luxembourg.
(d) The Issuer hereby appoints The Bank of New York at Xxx Xxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx X00 0XX as Paying Agent and Registrar with respect to
the Notes, and The Bank of New York hereby accepts such appointment. The
Issuer hereby appoints The Bank of New York at 000 Xxxxxxx Xxxxxx, Xxxxx
00 Xxxx, Xxx Xxxx, XX 00000 as Principal Paying Agent and Registrar, and
The Bank of New York hereby accepts such appointment.
(e) The Issuer may appoint one or more co-Registrars and one or more
additional Paying Agents and the terms "Registrar" and "Paying Agent"
shall include any such additional co-Registrar or Paying Agent, as
applicable; provided, however, that in no event may the Issuer, any
Guarantor or any of their Affiliates act as Paying Agent.
(f) The Issuer shall notify the Trustee of the name and address of any Agent
appointed after the date of this Indenture. If the Issuer fails to
maintain the Registrar or Paying Agent, or fails to give the foregoing
notice, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 7.07 hereof.
(g) The Issuer will enter into a paying agency agreement with the Principal
Paying Agent.
SECTION 2.04 Paying Agents to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the Holders or the
Trustee all money received by the Paying Agent for the payment of principal,
premium or interest on the Notes (whether such money has been paid to it by the
Issuer or any other obligor on the Notes), and the Issuer and the Paying Agent
shall notify the Trustee of any default by the Issuer (or any other obligor on
the Notes) in making any such payment. Money held in trust by a Paying Agent
need not be segregated, except as required by law, and in no event shall any
Paying Agent be liable for any interest on any money received by it hereunder.
The Issuer at any time may require each Paying Agent to pay all money held by
it to the Trustee and account for any funds disbursed, and the Trustee may, in
the circumstances set forth in Section 4.01, require any Paying Agent to pay
forthwith all money so held by it to the Trustee and to account for any funds
disbursed. Upon making such payment, the relevant Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.05 Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it from the Registrar of the names and
addresses of the Holders. The Issuer shall obtain from the Registrar and
furnish to the Trustee (if the Trustee is not the Registrar) and each
- 29 -
Paying Agent at least five Business Days before each Regular Interest Payment
Date, and at such other times as they may request in writing, a list in such
form and as of such date as they may reasonably require of the names and
addresses of the Holders.
SECTION 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes.
(1) The Global Notes cannot be transferred to any Person other than to
another Common Depositary, another nominee of the Common Depositary
or to a successor clearing agency or its common depositary or
nominee approved by the Issuer, the Guarantors and the Trustee.
(2) Global Notes will be exchanged by the Issuer for Definitive
Registered Notes: (i) in whole, but not in part, if Euroclear and
Clearstream Banking notify the Issuer or the Company that they are
unwilling or unable to continue to act as depository and a
successor depository is not appointed by the Issuer or the Company
within 120 days; (ii) in whole, but not in part, if the Issuer,
Euroclear or Clearstream Banking so request following a Default; or
(iii) if the owner of a Book-Entry Interest requests an exchange of
such Book-Entry Interest in writing delivered through Euroclear
and/or Clearstream Banking or the Issuer following an Event of
Default, subject to compliance with the other provisions of this
Section 2.06. Upon the occurrence of any of the preceding events,
Definitive Registered Notes shall be issued in such names as the
Depositary or Common Depositary shall instruct the Issuer based on
the instructions received by the Depositary from the holders of
Book-Entry Interests.
(3) Global Notes may also be exchanged or replaced, in whole or in
part, as provided in Section 2.07 and Section 2.10. Every Note
authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to Section 2.07 or
Section 2.10 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note, other than as provided in this
Section 2.06(a).
(b) General Provisions Applicable to Transfers and Exchanges of the Notes.
(1) Transfers of Book-Entry Interests in the Global Notes (other than
transfers of Book-Entry Interests in connection with which the
transferor takes delivery thereof in the form of a Book-Entry
Interest in the same Global Note) shall require compliance with
this Section 2.06(b), as well as one or more of the other following
subparagraphs of this Section 2.06, as applicable.
(2) In connection with all transfers and exchanges of Book-Entry
Interests (other than transfers of Book-Entry Interests in
connection with which the transferor takes delivery thereof in the
form of a Book-Entry Interest in the same Global Note), the
Principal Paying Agent must receive: (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures
- 30 -
directing the Depositary to debit from the transferor a Book-Entry
Interest in an amount equal to the Book-Entry Interest to be
transferred or exchanged; (2) a written order from a Participant or
an Indirect Participant given to the Depositary in accordance with
the Applicable Procedures directing the Depositary to credit or
cause to be credited a Book-Entry Interest in another Global Note
in an amount equal to the Book-Entry Interest to be transferred or
exchanged; and (3) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase.
(3) In connection with a transfer or exchange of a Book-Entry Interest
for a Definitive Registered Note, the Principal Paying Agent and
the Registrar must receive: (1) a written order from a Participant
or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to debit
from the transferor a Book-Entry Interest in an amount equal to the
Book-Entry Interest to be transferred or exchanged; (2) a written
order from a Participant directing the Registrar to cause to be
issued a Definitive Registered Note in an amount equal to the
Book-Entry Interest to be transferred or exchanged; and
(3) instructions containing information regarding the Person in
whose name such Definitive Registered Note shall be registered to
effect the transfer or exchange referred to above.
(4) In connection with any transfer or exchange of Definitive
Registered Notes, the Holder of such Notes shall present or
surrender to the Registrar the Definitive Registered Notes duly
endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, in
connection with a transfer or exchange of a Definitive Registered
Note for a Book-Entry Interest, the Principal Paying Agent must
receive a written order directing the Depositary to credit the
account of the transferee in an amount equal to the Book-Entry
Interest to be transferred or exchanged.
(5) Upon satisfaction of all of the requirements for transfer or
exchange of Book-Entry Interests in Global Notes contained in this
Indenture, the Principal Paying Agent or the Registrar, as
specified in this Section 2.07, shall endorse the relevant Global
Note(s) with any increase or decrease and instruct the Depositary
to reflect such increase or decrease in its system.
(c) Transfer of Book-Entry Interests in an International Global Note to
Book-Entry Interests in a U.S. Global Note.
(1) A Book-Entry Interest in the International Global Note may be
transferred to a Person who takes delivery thereof in the form of a
Book-Entry Interest in the U.S. Global Note only if the transfer
complies with the requirements of Section 2.06(b) above and, if
such transfer takes place on or prior to March 20, 2004, the
Principal Paying Agent receives a certificate to the effect set
forth in Exhibit C hereto, including the certifications in item (1)
thereof.
(2) Upon the receipt of such certificate and the orders and
instructions required by Section 2.06(b), the Principal Paying
Agent shall (i) instruct the Common Depositary to deliver, or cause
to be delivered, the Global Notes to the Book-Entry Agent for
endorsement and upon receipt thereof, decrease Schedule A to the
International Global Note and increase Schedule A to the U.S.
Global Note, by the principal amount of such transfer and
(ii) thereafter, return the Global Notes to the Common Depositary,
together with all information
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regarding the Participant accounts to be credited and debited in
connection with such transfer.
(d) Transfer of Book-Entry Interests in the U.S. Global Note to Book-Entry
Interests in the International Global Note.
(1) A Book-Entry Interest in the U.S. Global Note may be transferred to
a Person who takes delivery thereof in the form of a Book-Entry
Interest in the International Global Note only if the transfer
complies with the requirements of Section 2.06(b) above and the
Principal Paying Agent receives a certificate from the holder of
such Book-Entry Interest in the form of Exhibit C hereto, including
the certifications in item (2) or (3) thereof.
(2) Upon receipt of such certificates and the orders and instructions
required by Section 2.06(b), the Principal Paying Agent shall (i)
instruct the Common Depositary to deliver, or cause to be
delivered, the Global Notes to the Book-Entry Agent for endorsement
and, upon receipt thereof, (A) increase Schedule A to the
International Global Note and (B) decrease Schedule A to the U.S.
Global Note by the principal amount of such transfer and
(ii) thereafter, return the Global Notes to the Common Depositary,
together with all information regarding the Participant accounts to
be credited and debited in connection with such transfer.
(e) Transfer of Book-Entry Interests in Global Notes to Definitive Registered
Notes. A holder of a Book-Entry Interest in a Global Note may transfer
such Book-Entry Interest to a Person who takes delivery thereof in the
form of a Definitive Registered Note if the transfer complies with the
requirements of Section 2.06(a) and Section 2.06(b) above and:
(1) in the case of a transfer on or before March 20, 2004 by a holder
of a Book-Entry Interest in the International Global Note, the
Principal Paying Agent shall have received a certificate to the
effect set forth in Exhibit C hereto, including the certifications
in either (x) item (1) or (y) item (2) thereof;
(2) in the case of a transfer after March 20, 2004 by a holder of a
Book-Entry Interest in the International Global Note, the transfer
complies with Section 2.06(b);
(3) in the case of a transfer by a holder of a Book-Entry Interest in
the U.S. Global Note to a QIB in reliance on Rule 144A, the
Principal Paying Agent shall have received a certificate to the
effect set forth in Exhibit C hereto, including the certifications
in item (1) thereof;
(4) in the case of a transfer by a holder of a Book-Entry Interest in
the U.S. Global Note in reliance on Regulation S, the Principal
Paying Agent shall have received a certificate to the effect set
forth in Exhibit C hereto, including the certifications in item (2)
thereof; or
(5) in the case of a transfer by a holder of a Book-Entry Interest in
the U.S. Global Note in reliance on Rule 144, the Principal Paying
Agent shall have received a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item (3) thereof.
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Upon receipt of such certificates and the orders and instructions
required by Section 2.06(b), the Principal Paying Agent shall (i)
instruct the Common Depositary to deliver, or cause to be delivered, the
relevant Global Note to the Book-Entry Agent for endorsement and upon
receipt thereof, decrease Schedule A to the relevant Global Note by the
principal amount of such transfer, (ii) thereafter, return the Global
Note to the Common Depositary, together with all information regarding
the Participant accounts to be debited in connection with such transfer
and (iii) deliver to the Registrar the instructions received by it that
contain information regarding the Person in whose name Definitive
Registered Notes shall be registered to effect such transfer. The
Registrar shall cause any Definitive Registered Note issued in connection
with a transfer pursuant to Section 2.06(e)(1)(x) or Section 2.06(e)(3)
to have the 144A Legend and, in the case of a transfer under
Section 2.06(e)(1)(y) or Section 2.06(e)(4), the Regulation S Legend.
The Issuer shall issue and, upon receipt of an Authentication Order from
the Issuer in accordance with Section 2.02 hereof, the Trustee shall
authenticate, one or more Definitive Registered Notes in an aggregate
principal amount equal to the aggregate principal amount of Book-Entry
Interests so transferred and in the names set forth in the instructions
received by the Registrar.
(f) Transfer of Definitive Registered Notes to Book-Entry Interests in Global
Notes. Any Holder of a Definitive Registered Note may transfer such
Definitive Registered Note to a Person who takes delivery thereof in the
form of a Book-Entry Interest in a Global Note only if such transfer
occurs after March 20, 2004 and:
(1) in the case of a transfer by a holder of International Definitive
Registered Notes to a person who takes delivery thereof in the form
of a Book-Entry Interest in the International Global Note, transfer
complies with Section 2.06(b);
(2) in the case of a transfer by a holder of Definitive Registered
Notes to a QIB in reliance on Rule 144A, the Registrar shall have
received a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (1) thereof; or
(3) in the case of a transfer by a holder of Definitive Registered
Notes in reliance on Regulation S or Rule 144 under the Securities
Act, the Registrar shall have received a certificate to the effect
set forth in Exhibit C hereto, including the certifications in item
(2) or (3) thereof, respectively.
Upon satisfaction of the foregoing conditions, the Registrar shall
(i) deliver the Definitive Registered Notes to the Registrar for
cancellation pursuant to Section 2.11 hereof, (ii) record such transfer
on the Register, (iii) instruct the Common Depositary to deliver (x) in
the case of a transfer pursuant to Section 2.06(f)(1) or
Section 2.06(f)(3) above, the International Global Note and (y) in the
case of a transfer pursuant to Section 2.06(f)(2), the U.S. Global Note,
(iv) endorse Schedule A to such Global Note to reflect the increase in
principal amount resulting from such transfer and (v) thereafter, return
the Global Notes to the Common Depositary, together with all information
regarding the Participant accounts to be credited in connection with such
transfer.
(g) Exchanges of Book-Entry Interests in Global Notes for Definitive
Registered Notes. A holder of a Book-Entry Interest in a Global Note may
exchange such Book-Entry Interest for a Definitive Registered Note if the
exchange complies with the requirements of Section 2.06(a) and
Section 2.06(b) above and the Principal Paying Agent receives a
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certificate from such holder in the form of Exhibit D hereto, including
the certifications in item 1 thereof, and (if relevant) the following:
(1) if the holder of such Book-Entry Interest in an International
Global Note proposes after March 20, 2004 to exchange such
Book-Entry Interest for an Unrestricted Definitive Registered Note,
a certificate from such holder in the form of Exhibit D hereto,
including the certifications in item 1 and 2 thereof; and
(2) if the holder of such Book-Entry Interest in a U.S. Global Note
proposes to exchange such Book-Entry Interest for an Unrestricted
Definitive Registered Note, a certificate from such holder in the
form of Exhibit D hereto including the certifications in items 1
and 3 thereof.
Upon receipt of such certificates and the orders and instructions
required by Section 2.06(b), the Principal Paying Agent shall (i)
instruct the Common Depositary to deliver, or cause to be delivered, the
relevant Global Note to the Book-Entry Agent for endorsement and upon
receipt thereof, decrease Schedule A to the relevant Global Note by the
principal amount of such exchange, (ii) thereafter, return the Global
Note to the Common Depositary, together with all information regarding
the Participant accounts to be debited in connection with such exchange
and (iii) deliver to the Registrar instructions received by it that
contain information regarding the Person in whose name Definitive
Registered Notes shall be registered to effect such exchange. The
Registrar shall cause all Definitive Registered Notes issued pursuant to
Section 2.06(g) (other than clauses (1) and (2)) in exchange for a
Book-Entry Interest in a Global Note to bear the appropriate legend
required by Exhibit D hereto. Definitive Registered Notes issued
pursuant to Section 2.06(g)(1) and (2) shall not bear the 144A Legend or
the Regulation S Legend.
The Issuer shall issue and, upon receipt of an Authentication Order from
the Issuer in accordance with Section 2.02 hereof, the Registrar shall
authenticate, one or more Definitive Registered Notes in an aggregate
principal amount equal to the aggregate principal amount of Book-Entry
Interests so exchanged and in the names set forth in the instructions
received by the Registrar.
(h) Exchanges of Definitive Registered Notes for Book-Entry Interests in
Global Notes. Any Holder of a Definitive Registered Note may exchange
such Note for a Book-Entry Interest in a Global Note if such exchange
complies with Section 2.06(b) above and the Registrar receives a
certificate from such Holder in the form of Exhibit D hereto, including
the certifications in item 1 thereof and the following documentation:
(1) if the holder of such International Definitive Registered Note
proposes after March 20, 2004 to exchange such Notes for Book-Entry
Interests in the International Global Note, a certificate from such
holder in the form of Exhibit D hereto, including the
certifications in item 1 and 2 thereof; and
(2) if the holder of such 144A Definitive Registered Notes proposes to
exchange such Notes for a Book-Entry Interest in the International
Global Note, a certificate from such holder in the form of Exhibit
D hereto including the certifications in items 1 and 3 thereof.
Upon satisfaction of the foregoing conditions, the Registrar shall
(i) cancel such Definitive Registered Notes pursuant to Section 2.11
hereof, (ii) record such exchange
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on the Register, (iii) instruct the Common Depositary to deliver the
relevant Global Note, (iv) endorse Schedule A to such Global Note to
reflect the increase in principal amount resulting from such exchange,
and (v) thereafter, return the Global Note to the Common Depositary,
together with all information regarding the Participant accounts to be
credited in connection with such exchange.
(i) Transfer of Definitive Registered Notes for Definitive Registered Notes.
Any Holder of a Definitive Registered Note may transfer such Note to a
Person who takes delivery thereof in the form of Definitive Registered
Notes if the transfer complies with Section 2.06(b) above and the
Registrar receives the following additional documentation:
(1) in the case of a transfer on or before March 20, 2004 by a holder
of an International Definitive Registered Note, the Registrar shall
have received a certificate to the effect set forth in Exhibit C
hereto, including the certifications in either (x) item (1) or (y)
item (2) thereof;
(2) in the case of a transfer after March 20, 2004 by a holder of an
International Definitive Registered Note, the transfer complies
with Section 2.06(b);
(3) in the case of a transfer by a holder of a 144A Definitive
Registered Note to a QIB in reliance on Rule 144A, the Registrar
shall have received a certificate to the effect set forth in
Exhibit C hereto, including the certifications in item (1) thereof;
(4) in the case of a transfer by a holder of a 144A Definitive
Registered Note in reliance on Regulation S, the Registrar shall
have received a certificate to the effect set forth in Exhibit C
hereto, including the certifications in item (2) thereof; or
(5) in the case of a transfer by a holder of a 144A Definitive
Registered Note in reliance on Rule 144, the Registrar shall have
received a certificate to the effect set forth in Exhibit C hereto,
including the certifications in item (3) thereof.
Upon the receipt of any Definitive Registered Note, the Registrar shall
cancel such Note pursuant to Section 2.11 hereof and complete and deliver
to the Issuer (A) in the case of a transfer pursuant to
Section 2.06(j)(1)(x) or Section 2.06(j)(3), a 144A Definitive Registered
Note and (B) in the case of a transfer pursuant to Section 2.06(j)(1)(y)
or (4), an International Definitive Registered Note and (C) in the case
of a transfer pursuant to Section 2.06(j)(2) or (5), an Unrestricted
Definitive Registered Note. The Issuer shall execute and the Registrar
shall authenticate and deliver such Definitive Registered Note to such
Person(s) as the Holder of the surrendered Definitive Registered Note
shall designate.
(j) Transfer of Unrestricted Definitive Registered Notes. Any Holder of an
Unrestricted Definitive Registered Note may transfer such Note to a
Person who takes delivery thereof in the form of Definitive Registered
Notes if the transfer complies with Section 2.06(b) above.
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(k) Legends.
(1) 144A Legend. The following legend shall appear on the face of all
U.S. Notes issued under this Indenture, unless the Issuer
determines otherwise in compliance with applicable law:
"THIS SENIOR NOTE DUE 2012 AND ANY INTEREST HEREIN HAVE NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ANY OFFER, SALE,
PLEDGE OR OTHER TRANSFER THEREOF MUST BE MADE ONLY (A) (I) TO A
PERSON WHOM THE PURCHASER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT
("REGULATION S"), (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (IV) TO SGL CARBON AKTIENGESELLSCHAFT OR ANY
SUBSIDIARY OF SGL CARBON AKTIENGESELLSCHAFT AND (B) IN EACH CASE,
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY OTHER
JURISDICTION.
EACH PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN AGREES THAT IT
WILL DELIVER TO EACH PURCHASER OF THIS NOTE OR BOOK-ENTRY INTERESTS
FROM IT A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
(2) Regulation S Legend. The following legend shall appear on the face
of all International Notes issued under this Indenture, unless the
Issuer determines otherwise in compliance with applicable law:
"THIS SENIOR NOTE DUE 2012 AND ANY INTEREST HEREIN HAVE NOT BEEN
AND WILL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ON OR PRIOR TO
MARCH 20, 2004, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A) IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT ("REGULATION
S") OR TO SGL CARBON AKTIENGESELLSCHAFT OR ANY SUBSIDIARY OF SGL
CARBON AKTIENGESELLSCHAFT, (B) TO A PERSON WHOM THE PURCHASER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN
COMPLIANCE WITH ALL APPLICABLE LAWS OF ANY OTHER JURISDICTION.
AFTER MARCH 20, 2004, THIS NOTE AND ANY INTEREST HEREIN MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH THE SECURITIES ACT AND ALL
APPLICABLE LAWS OF ANY OTHER JURISDICTION.
EACH PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN AGREES
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THAT IT WILL DELIVER TO EACH PURCHASER OF THIS NOTE OR BOOK-ENTRY
INTERESTS HEREIN A NOTICE SUBSTANTIALLY TO THE EFFECT THEREOF."
(3) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF EUROCLEAR, CLEARSTREAM BANKING AND THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE
AND (II) THIS GLOBAL NOTE MAY BE DELIVERED IN ACCORDANCE WITH
SECTION 2.06(L) OF THE INDENTURE TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.11 OF THE INDENTURE."
(4) Dutch Legend. Each Note shall bear a legend in substantially the
following form:
"THIS NOTE MAY NOT BE OFFERED, SOLD, TRANSFERRED OR DELIVERED IN OR
FROM THE NETHERLANDS, DIRECTLY OR INDIRECTLY, AS PART OF THEIR
INITIAL DISTRIBUTION OR AT ANY TIME THEREAFTER, DIRECTLY OR
INDIRECTLY, IN OR FROM THE NETHERLANDS, OTHER THAN TO INDIVIDUALS
OR LEGAL ENTITIES WHICH INCLUDE, BUT ARE NOT LIMITED TO, BANKS,
BROKERS, DEALERS, INSTITUTIONAL INVESTORS AND UNDERTAKINGS WITH A
TREASURY DEPARTMENT, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN
THE CONDUCT OF A BUSINESS OR PROFESSION."
(l) Cancellation. At such time as all Book-Entry Interests have been
exchanged for Definitive Registered Notes or all Global Notes have been
redeemed or repurchased, the Global Notes shall be returned to the
Registrar for cancellation in accordance with Section 2.11 hereof.
(m) General Provisions Relating to All Transfers and Exchanges.
(1) To permit registration of transfers and exchanges, the Issuer shall
execute and the Registrar shall authenticate Global Notes and
Definitive Registered Notes upon the Issuer's order.
(2) No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Issuer may require payment of a sum
sufficient to cover any taxes, duties or governmental charge
payable in connection therewith (other than any such taxes, duties
or governmental charge payable upon exchange or transfer pursuant
to Sections 2.10, 4.10, 4.15 and 9.04 hereof).
(3) All Global Notes and Definitive Registered Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Registered Notes shall be the valid obligations of the Issuer and
the Guarantors, evidencing the same debt and entitled to the same
benefits under this Indenture, as the Global Notes or
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Definitive Registered Notes surrendered upon such registration
of transfer or exchange.
(4) The Issuer shall not be required to register the transfer of or, to
exchange, Definitive Registered Notes during (i) a period beginning
at the opening of business 15 calendar days before any redemption
date and ending at the close of business on the redemption date,
(ii) a period beginning at the opening of business 15 calendar days
immediately prior to the date fixed for selection of Notes to be
redeemed in part, and ending at the close of business on the date
on which such Notes are selected, (iii) a period beginning at the
opening of business 15 calendar days before any record date with
respect to any Regular Interest Payment Date, and ending on the
close of business on any such record date; or (iv) which the holder
has tendered (and not withdrawn) for repurchase in connection with
a Change of Control Offer or an Asset Sale Offer.
(5) The Trustee shall authenticate Global Notes and Definitive
Registered Notes in accordance with the provisions of Section 2.02
hereof.
SECTION 2.07 Replacement Notes.
If a mutilated Note is surrendered to a Paying Agent, the Registrar or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Trustee shall
authenticate a replacement Note in such form as the Notes mutilated, lost,
destroyed or wrongfully taken if, in the case of a lost, destroyed or
wrongfully taken Note, the Holder of such Note furnishes to the Issuer, the
Paying Agent, the Registrar and/or the Trustee, as applicable, evidence
reasonably acceptable to them of the ownership and the destruction, loss or
theft of such Note. If required by the Issuer, the Paying Agent, the Registrar
or the Trustee, an indemnity bond shall be posted, sufficient in the judgment
of each to protect the Issuer, the Paying Agent, the Registrar and the Trustee
from any loss that any of them may suffer if such Note is replaced. The Issuer
may charge such Holder for the Issuer's exceptional out-of-pocket expenses in
replacing such Note, and the Paying Agent, the Registrar and the Trustee may
charge the Issuer for their expenses in replacing such Note. Every replacement
Note shall constitute an additional obligation of the Issuer. If, after the
delivery of such replacement Note, a bona fide purchaser of the original Note
in lieu of which such replacement Note was issued presents for payment or
registration such original Note, the Trustee shall be entitled to recover such
replacement Note from the Person to whom it was delivered or any Person taking
therefrom, except a bona fide purchaser, and shall be entitled to recover upon
the security or indemnity provided therefore to the extent of any loss, damage,
cost or expense incurred by the Issuer, the Trustee, any Agent and any
authenticating agent in connection therewith.
SECTION 2.08 Outstanding Notes
The Notes outstanding at any time are all Notes that have been authenticated by
the Trustee except for (i) those cancelled by it; (ii) those delivered to it
for cancellation; (iii) to the extent set forth in Section 8.02 on or after the
date on which the conditions set forth in Section 8.04 have been satisfied,
those Notes theretofore authenticated and delivered by the Trustee or the
Registrar hereunder; (iv) Notes in respect of which the Issuer and the
Guarantors have been fully discharged for the payment of principal, premium,
interest and Additional Amounts; and (v) those Notes described in this Section
2.08 as not outstanding. Subject to Section 2.09 hereof, a Note does not cease
to be outstanding because the Issuer or one of its Affiliates holds the Note.
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If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee and the Registrar receive proof satisfactory to
them that the replaced Note is held by a bona fide purchaser in whose hands
such Note is a legal, valid and binding obligation of the Issuer.
If the principal amount of any Note is considered to be paid under Section
4.01, it ceases to be outstanding and interest thereon shall cease to accrue.
If one or more Paying Agents hold, in their capacity as such, on the maturity
date or on any redemption date, money sufficient to pay all principal, premium
and accrued interest with respect to the outstanding Notes payable on that date
and are not prohibited from paying such money to the Holders thereof pursuant
to the terms of this Indenture, then on and after that date such Notes cease to
be outstanding and interest on them ceases to accrue.
SECTION 2.09 Treasury Notes
In determining whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent, Notes owned by the Issuer
or any Guarantor, or by any Affiliate of them, will be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
will be protected in relying on any such direction, waiver or consent, only
Notes that the Trustee knows are so owned will be so disregarded. Notes so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right to
deliver any such direction, waiver or consent with respect to the Notes and
that the pledgee is not the Issuer, a Guarantor or an Affiliate of any of them.
SECTION 2.10 Temporary Notes
Until definitive Notes are prepared and ready for delivery, the Issuer may
prepare, and the Trustee shall authenticate, temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Issuer considers appropriate for temporary Notes. Without
unreasonable delay, the Issuer shall prepare, and the Trustee shall
authenticate, definitive Notes in exchange for temporary Notes. Until such
exchange, temporary Notes shall be entitled to the same rights, benefits and
privileges as definitive Notes.
SECTION 2.11 Cancellation
The Issuer at any time may deliver Notes to the Trustee or the Registrar for
cancellation. Each Paying Agent shall forward to the Trustee or the Registrar
any Definitive Registered Notes surrendered to it for registration of transfer
or exchange, or payment, redemption or purchase. The Common Depositary shall
cause all Global Notes to be delivered to the Trustee for cancellation under
the circumstances set forth in Section 2.06(l). The Trustee or the Registrar
shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement, cancellation or purchase and shall dispose of cancelled
Notes in accordance with its policy of disposal, unless the Issuer directs the
Trustee or the Registrar to return such Notes to the Issuer, and, if so
disposed, shall deliver a certificate of disposition thereof to the Issuer.
The Issuer may not reissue or resell, or issue new Notes to replace, Notes that
the Issuer has redeemed, paid, purchased or converted, or that have been
delivered to the Trustee or the Registrar for cancellation.
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SECTION 2.12 Defaulted Interest
If the Issuer defaults in a payment of interest on the Notes, it will pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest
payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Issuer will notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Issuer will fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
may be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Issuer (or,
upon the written request of the Issuer, the Trustee in the name and at the
expense of the Issuer) will mail or cause to be mailed to Holders a notice that
states the special record date, the related payment date and the amount of such
interest to be paid.
SECTION 2.13 Common Code and ISIN Number
The Issuer in issuing the Notes may use a "Common Code" number or an "ISIN"
number, and if so, such Common Code and/or ISIN number shall be included in
notices of redemption or purchase as a convenience to Holders; provided,
however, that any such notice may state that no representation is made as to
the correctness or accuracy of the Common Code and/or ISIN number printed in
the notice or on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Issuer will promptly notify
the Trustee and each Agent of any change in the Common Code and/or ISIN number.
SECTION 2.14 Deposit of Moneys
Prior to 10:00 am (London time), on each Regular Interest Payment Date, the
Maturity Date and each payment date relating to an Asset Sale Offer or a Change
of Control Offer, and on the Business Day immediately following any
acceleration of the Notes pursuant to Section 6.02, the Issuer shall deposit
with the Principal Paying Agent in immediately available funds money (in euros)
sufficient to make cash payments, if any, due on such Regular Interest Payment
Date, Maturity Date, payment date or Business Day, as the case may be. Subject
to receipt of such funds by such time, the Principal Paying Agent and each
Paying Agent shall remit such payment in a timely manner to the Holders on such
Regular Interest Payment Date, Maturity Date or Business Day, as the case may
be, to the Persons and in the manner set forth in paragraph 2 of the Notes.
SECTION 2.15 Holders to Be Treated as Owners; Payments of Interest.
The Issuer, the Paying Agents, the Registrar, the Trustee, the Security Agent
and any agent of the Issuer, any Paying Agent, the Registrar, the Security
Agent or the Trustee may deem and treat the Holder of a Note as the absolute
owner of such Note for the purpose of receiving payment of or on account of the
principal, premium or interest on such Note and for all other purposes; and
neither the Issuer, any Paying Agent, the Registrar, the Trustee, the Security
Agent nor any agent of the Issuer, any Paying Agent, the Registrar, the
Security Agent or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effective to satisfy and
discharge the liability for moneys payable upon any Note.
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SECTION 2.16 Further Issues.
Subject to compliance with Section 4.09 hereof, the Issuer may from time to
time issue further Notes (the "Additional Notes") ranking pari passu with Notes
and with the same terms as to status, redemption and otherwise as such Notes
(save for payment of interest accruing prior to the issue date of such
Additional Notes or for the first payment of interest following the issue date
of such Additional Notes). The Additional Notes and the Initial Notes will be
consolidated and treated as a single class for all purposes under this
Indenture, including, without limitation, waivers, amendments, redemptions, and
offers to purchase.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must furnish to the Trustee, at least 30
days but not more than 60 days before a redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the redemption shall
occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
SECTION 3.02 Selection of Notes to Be Redeemed or Purchased.
If less than all of the Notes are to be redeemed at any time, the Trustee will
select Notes for redemption on a pro rata basis unless otherwise required by
law or applicable stock exchange requirements.
No Notes of [e]1,000 or less can be redeemed in part. Notices of redemption
will be mailed by first class mail at least 30 but not more than 60 days before
the redemption date to each Holder of Notes to be redeemed at its registered
address, except that redemption notices may be mailed more than 60 days prior
to a redemption date if the notice is issued in connection with a defeasance of
the Notes or a satisfaction and discharge of this Indenture.
If any Note is to be redeemed in part only, the notice of redemption that
relates to that Note will state the portion of the principal amount of that
Note that is to be redeemed. A new Note in principal amount equal to the
unredeemed portion of the original Note will be issued in the name of the
Holder of Notes upon cancellation of the original Note. Notes called for
redemption become due on the date fixed for redemption. On and after the
redemption date, interest ceases to accrue on Notes or portions of Notes called
for redemption.
For Notes which are represented by global certificates held on behalf of
Euroclear or Clearstream Banking, notices may be given by delivery of the
relevant notices to Euroclear or Clearstream Banking for communication to
entitled account holders in substitution for the aforesaid publication. So
long as any Notes are listed on the Luxembourg Stock Exchange and its rules so
require, any such notice to the holders of the relevant Notes shall also be
published
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in a newspaper having a general circulation in Luxembourg (which is expected to
be the Luxemburger Wort) and, in connection with any redemption, the Issuer
will notify the Luxembourg Stock Exchange of any change in the principal amount
of Notes outstanding.
SECTION 3.03 Notice of Redemption.
Subject to the provisions of Section 3.09 hereof, at least 30 days but not more
than 60 days before a redemption date, the Issuer will mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address, except that redemption notices
may be mailed more than 60 days prior to a redemption date if the notice is
issued in connection with a defeasance of the Notes or a satisfaction and
discharge of this Indenture pursuant to Articles 8 or 13 hereof.
The notice will identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion will be issued upon
cancellation of the original Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that, unless the Issuer defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being
redeemed; and
(8) that no representation is made as to the correctness or accuracy of
the ISIN or CUSIP number, if any, listed in such notice or printed
on the Notes.
At the Issuer's request, the Trustee will give the notice of redemption in the
Issuer's name and at its expense; provided, however, that the Issuer has
delivered to the Trustee, at least 45 days prior to the redemption date, an
Officers' Certificate requesting that the Trustee give such notice and setting
forth the information to be stated in such notice as provided in the preceding
paragraph.
SECTION 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
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SECTION 3.05 Deposit of Redemption or Purchase Price.
One Business Day prior to the redemption or purchase date, the Issuer will
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption or purchase price of and accrued interest on all Notes to be
redeemed or purchased on that date. The Trustee or the Paying Agent will
promptly return to the Issuer any money deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest on, all Notes to be
redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and
after the redemption or purchase date, interest will cease to accrue on the
Notes or the portions of Notes called for redemption or purchase. If a Note is
redeemed or purchased on or after an interest record date but on or prior to
the related Regular Interest Payment Date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Note was registered at the close
of business on such record date. If any Note called for redemption or purchase
is not so paid upon surrender for redemption or purchase because of the failure
of the Issuer to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption or purchase date until such principal
is paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section 4.01
hereof.
SECTION 3.06 Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer will
issue and, upon receipt of an Authentication Order, the Trustee will
authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note
surrendered.
SECTION 3.07 Optional Redemption.
(a) At any time prior to February 1, 2007, the Issuer may on any one or more
occasions redeem up to 35% of the aggregate principal amount of the Notes
issued under this Indenture at a redemption price of 108.500% of the
principal amount thereof, plus accrued and unpaid interest, to the
redemption date, with the net cash proceeds of one or more Public Equity
Offerings of the Company effected after the Issue Date; provided that:
(1) at least 65% of the aggregate principal amount of the Notes
originally issued under this Indenture (excluding Notes held by the
Issuer, the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of any such redemption of Notes;
(2) the redemption occurs within 60 days of the date of the closing of
such Public Equity Offering.
(b) Except pursuant to the preceding paragraph, the Notes will not be
redeemable at the Issuer's option prior to February 1, 2008.
(c) On or after February 1, 2008, the Issuer may redeem the Notes, in whole
or in part, upon not less than 30 nor more than 60 days' notice, at the
redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest on the Notes redeemed, to
the applicable redemption date, if redeemed during the
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twelve-month period beginning on February 1, of the years indicated
below, subject to the rights of Holders of Notes on the relevant record
date to receive interest on the relevant Regular Interest Payment Date:
REDEMPTION
YEAR PRICE
2008....................104.250%
2009....................102.833%
2010....................101.416%
2011 and thereafter.....100.000%
Unless the Issuer defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof called for
redemption on the applicable redemption date.
(d) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Sections 3.01 through 3.06 hereof.
SECTION 3.08 Mandatory Redemption.
The Company is not required to make mandatory redemption or sinking fund
payments with respect to the Notes.
SECTION 3.09 Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 hereof, the Issuer is required to
commence an offer to all Holders to purchase Notes (an "Asset Sale Offer"), it
will follow the procedures specified below.
The Asset Sale Offer shall be made to all Holders and all holders of other
Indebtedness that is pari passu with the Notes containing provisions similar to
those set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets. The Asset Sale Offer will remain open
for a period of at least 20 Business Days following its commencement and not
more than 30 Business Days, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than three Business
Days after the termination of the Offer Period (the "Purchase Date"), the
Issuer will apply all Excess Proceeds (the "Offer Amount") to the purchase of
Notes and such other pari passu Indebtedness (on a pro rata basis, if
applicable) or, if less than the Offer Amount has been tendered, all Notes and
other Indebtedness tendered in response to the Asset Sale Offer. Payment for
any Notes so purchased will be made in the same manner as interest payments are
made.
If the Purchase Date is on or after an interest record date and on or before
the related Regular Interest Payment Date, any accrued and unpaid interest will
be paid to the Person in whose name a Note is registered at the close of
business on such record date, and no additional interest will be payable to
Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuer will send, by first
class mail, a notice to the Trustee and each of the Holders. The notice will
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The notice, which will govern
the terms of the Asset Sale Offer, will state:
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(1) that the Asset Sale Offer is being made pursuant to this Section
3.09 and Section 4.10 hereof and the length of time the Asset Sale
Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will continue to
accrue interest;
(4) that, unless the Issuer defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in integral multiples
of [e]1,000 only;
(6) that Holders electing to have Notes purchased pursuant to any Asset
Sale Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" attached to the Notes
completed, or transfer by book-entry transfer, to the Issuer, a
depositary, if appointed by the Issuer, or a Paying Agent at the
address specified in the notice at least three days before the
Purchase Date;
(7) that Holders will be entitled to withdraw their election if the
Issuer, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(8) that, if the aggregate principal amount of Notes and other pari
passu Indebtedness surrendered by holders thereof exceeds the Offer
Amount, the Issuer will select the Notes and other pari passu
Indebtedness to be purchased on a pro rata basis based on the
principal amount of Notes and such other pari passu Indebtedness
surrendered (with such adjustments as may be deemed appropriate by
the Issuer so that only Notes in denominations of [e]1,000, or
integral multiples thereof, will be purchased); and
(9) that Holders whose Notes were purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Issuer will, to the extent lawful, accept
for payment, on a pro rata basis to the extent necessary, the Offer Amount of
Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes tendered, and will deliver
or cause to be delivered to the Trustee the Notes properly accepted together
with an Officers' Certificate stating that such Notes or portions thereof were
accepted for payment by the Issuer in accordance with the terms of this Section
3.09. The Issuer, the depositary or the Paying Agent, as the case may be, will
promptly (but in any case not later than five days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to the purchase price
of the Notes tendered by such Holder and accepted by the Issuer for purchase,
and the Issuer will promptly issue a new Note, and the Trustee, upon written
request from the Issuer, will authenticate and mail or deliver (or cause to be
transferred by book entry) such new Note to such Holder, in a principal amount
equal to any unpurchased portion of the Note surrendered. Any Note not so
accepted shall be promptly mailed or delivered by the Issuer to the Holder
thereof. The Issuer will publicly announce the results of the Asset Sale Offer
on the Purchase Date.
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Other than as specifically provided in this Section 3.09, any purchase pursuant
to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.
SECTION 3.10 Redemption for Changes in Withholding Tax.
The Issuer may redeem the Notes, in whole but not in part, at its discretion at
any time upon giving not less than 30 nor more than 60 days' prior notice to
the Holders (which notice will be irrevocable and given in accordance Section
14.02), at a redemption price equal to the principal amount thereof, together
with accrued and unpaid interest, to the date fixed by the Issuer for
redemption (a "Tax Redemption Date") and all Additional Amounts (if any) then
due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise (and in the case of Definitive Registered Notes,
subject to the right of holders on the relevant record date to receive interest
due on the relevant Regular Interest Payment Date and Additional Amounts (if
any) in respect thereof), if on the next date on which any amount would be
payable in respect of the Notes, the Issuer or successor entity has or would be
required to pay Additional Amounts, and the Issuer or successor entity cannot
avoid any such payment obligation taking reasonable measures available, as a
result of:
(1) any change in, or amendment to, the laws or treaties (or any
regulations, or rulings promulgated thereunder) of the Relevant
Taxing Jurisdiction affecting taxation after the date hereof (or,
if the Relevant Taxing Jurisdiction has changed since the date
hereof, the date on which the then current Relevant Taxing
Jurisdiction became the applicable Relevant Taxing Jurisdiction)
under this Indenture; or
(2) any change in, or amendment to, the existing official position or
the introduction of an official position regarding the application,
administration or interpretation of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a
court of competent jurisdiction or a change in published practice),
after the date hereof (or, if the Relevant Taxing Jurisdiction has
changed since the date hereof, the date on which the then current
Relevant Taxing Jurisdiction became the applicable Relevant Taxing
Jurisdiction under this Indenture).
The Issuer or successor entity will not give any such notice of redemption
earlier than 90 days prior to the earliest date on which the Issuer would be
obligated to make such payment or withholding if a payment in respect of the
Notes were then due. Notwithstanding the foregoing, the Issuer may not redeem
the Notes under this provision if the Relevant Taxing Jurisdiction changes
under this Indenture and the Issuer is obligated to pay any Additional Amounts
as a result of a change in, or an amendment to, the laws or treaties (or any
regulations or rulings promulgated thereunder), or any change in or amendment
to, any official position regarding the application, administration or
interpretation of such laws, treaties, regulations or rules, of the then
current Relevant Taxing Jurisdiction which, at the time such Relevant Taxing
Jurisdiction became the applicable Relevant Taxing Jurisdiction under this
Indenture, was publicly announced as formally proposed. Prior to the
publication or, where relevant, mailing of any notice of redemption of the
Notes pursuant to the foregoing, the Issuer will deliver to the Trustee an
Opinion of Counsel, the choice of such counsel to be subject to the prior
written approval of the Trustee (such approval not to be unreasonably withheld)
to the effect that the Issuer or successor entity cannot avoid any obligation
to pay Additional Amounts taking reasonable measures available and there has
been such change or amendment which would entitle the Issuer successor entity
to redeem the Notes hereunder. For the avoidance of doubt, the Issuer or
successor entity shall not be entitled to redeem the Notes as a consequence of
the adoption of the European Council Directive 2003/48/EC or any other
Directive implementing the
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conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the
taxation of savings income or any law implementing or complying with, or
introduced in order to conform to, such Directive.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Notes.
The Issuer will pay or cause to be paid the principal of, premium, if any, and
interest on, the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest will be considered paid on the date
due if the Paying Agent, if other than the Issuer or a Subsidiary thereof,
holds as of 10:00 a.m. (London time) on the due date money deposited by the
Issuer in immediately available funds and designated for and sufficient to pay
all principal, premium, if any, and interest then due.
The Issuer will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.02 Maintenance of Office or Agency.
The Issuer will maintain the offices and agencies specified in clause 2.03
hereof. The Issuer will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Issuer fails to maintain any such required office or agency or fails
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
SECTION 4.03 Reports.
(a) So long as any Notes are outstanding, the Company will furnish to the
Holders of Notes or cause the Trustee to furnish to the Holders of Notes:
(1) with respect to each financial year of the Company, within 120 days
after the end of the relevant financial year, information (A)
substantially identical to that which would be required to be
included in an Annual Report on Form 20-F under the U.S. Securities
Exchange Act by a foreign private issuer, including a report on the
Company's consolidated financial statements by the Company's
certified independent accountants and a presentation of EBITDA of
the Company derived from such financial statements (to the extent
such measures and presentation (or variations thereof) would be
permitted by the SEC and such presentation, if it would be required
by the SEC to be modified or labeled otherwise in such filing, is
so modified or labeled) and (B) to the extent not already provided
under clause (A), required to be reported by the Company pursuant
to the German Commercial Code (Handelsgesetzbuch) and the
Luxembourg Stock Exchange;
(2) within 60 days after the end of each of the first three financial
quarters in each financial year of the Company, quarterly financial
reports in the form of, and including the same items of information
as, the Company's quarterly report for
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the nine months ended September 30, 2003, including a
presentation of EBITDA of the Company derived from such financial
statements (to the extent such measures and presentation (or
variations thereof) would be permitted by the SEC in a quarterly
report on Form 10-Q and such presentation, if it would be required
by the SEC to be modified or labeled otherwise in such filing, is
so modified or labeled); provided that the Company shall not be
required to include any reconciliation of any line items to U.S.
GAAP, together with the information in relation to the Company
described in Item 5 of Form 20-F under the U.S. Securities Exchange
Act (i.e., Management's Discussion and Analysis of Financial
Condition and Results of Operations) with respect to such period;
(3) promptly, from time to time after the occurrence of an event
required to be reported therein, such other reports containing
substantially the same information required by Form 6-K; and
(4) such information as the Company is required to make publicly
available under the requirements of the German Securities Trading
Act (Wertpapierhandelsgesetz) and, if not so required, information
with respect to any change in the independent accountants of the
Company, and any resignation of a member of the Supervisory Board
of the Company as a result of a disagreement with the Company,
provided, however, that, save to the extent required by law, the reports
set forth above shall not be required to (i) contain any certification
required by the Xxxxxxxx-Xxxxx Act, (ii) include any exhibits or (iii)
contain quarterly reconciliations to U.S. GAAP.
Notwithstanding the foregoing, the Company will not be required to
provide any separate financial statements for any Subsidiary Guarantor or
any Affiliate of the Company or any acquired business.
(b) The Company or the Issuer will also make available copies of all reports
required by clauses (1) through (4) above (i) on the Company's website,
(ii) to the newswire or other service of Bloomberg L.P. or, if Bloomberg
L.P. does not then operate any such service, any similar agency and (iii)
if and so long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of the Luxembourg Stock Exchange so require, at the
specified office of the paying agent in Luxembourg.
(c) If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries and such Subsidiaries are Significant Subsidiaries, then the
quarterly and annual financial information required by the preceding
paragraph will include a reasonably detailed presentation, either on the
face of the financial statements or in the footnotes thereto, of the
financial condition and results of operations of the Company and its
Restricted Subsidiaries separate from the financial condition and results
of operations of the Unrestricted Subsidiaries of the Company.
(d) In addition, for so long as any Notes remain outstanding and during any
period during which they are not subject to Section 13 or 15(d) of the
U.S. Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), each
of the Issuer and the Guarantors has agreed that it will furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule
144A(d)(4) under the U.S. Securities Act.
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(e) All reports made pursuant to this covenant shall be made in, or
translated to, the English language.
SECTION 4.04 Compliance Certificate.
(a) The Company and the Issuer, jointly, shall deliver to the Trustee, within
90 days after the end of each fiscal year, an Officers' Certificate
stating that a review of the activities of the Issuer, the Company and
its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether
each of the Issuer and the Company has kept, observed, performed and
fulfilled its obligations under this Indenture and the Security
Documents, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has
kept, observed, performed and fulfilled each and every covenant contained
in this Indenture and the Security Documents and is not in default in the
performance or observance of any of the terms, provisions and conditions
of this Indenture or the Security Documents (or, if a Default or Event of
Default has occurred, describing all such Defaults or Events of Default
of which he or she may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of
his or her knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if
any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or
proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article 4 or
Article 5 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) So long as any of the Notes are outstanding, the Company will deliver to
the Trustee, forthwith upon any Officer becoming aware of any Default or
Event of Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or proposes to
take with respect thereto.
SECTION 4.05 Taxes.
The Company will pay, and will cause each of its Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except
such as are contested in good faith and by appropriate proceedings or where the
failure to effect such payment is not adverse in any material respect to the
Holders of the Notes.
SECTION 4.06 Stay, Extension and Usury Laws.
The Issuer and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter
- 49 -
in force, that may affect the covenants or the performance of this Indenture;
and the Issuer and each of 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, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 4.07 Restricted Payments.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other payment or
distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving
the Company or any of its Restricted Subsidiaries) or to the direct
or indirect holders of the Company's or any of its Restricted
Subsidiaries' Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other
than Disqualified Stock) of the Company and other than dividends or
distributions payable to the Company or a Restricted Subsidiary of
the Company, and other than pro rata dividends or other
distributions by a Restricted Subsidiary that is not a Wholly-Owned
Restricted Subsidiary to minority stockholders (or owners of an
equivalent interest in the case of a Subsidiary that is an entity
other than a corporation));
(2) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or
consolidation involving the Company) any Equity Interests of the
Company;
(3) make any principal payment or purchase, redeem, defease or
otherwise acquire or retire for value prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment (other than
the purchase, repurchase or other acquisition of such Indebtedness
purchased in anticipation of satisfying a sinking fund obligation,
principal installment or scheduled maturity, in each case due
within one year of the date of such purchase, repurchase or other
acquisition) any Indebtedness of the Company or any Guarantor that
is contractually subordinated to the Notes or to any Guarantee
(excluding any intercompany Indebtedness between or among the
Company and any of its Restricted Subsidiaries); or
(4) make any Restricted Investment (all such payments and other actions
set forth in these clauses (1) through (4) above being collectively
referred to as "Restricted Payments"),
unless, at the time of and after giving effect to such Restricted
Payment:
(1) no Default or Event of Default has occurred and is continuing
or would occur as a consequence of such Restricted Payment;
(2) the Company could incur at least [e]1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test
set forth in the first paragraph of Section 4.09; and
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(3) such Restricted Payment, together with the aggregate amount
of all other Restricted Payments made by the Company and its
Restricted Subsidiaries since the date of this Indenture
(excluding Restricted Payments permitted by clauses (2), (3)
and (5) of the next succeeding paragraph), is less than the
sum, without duplication, of:
(A) 50% of the Consolidated Net Income of the Company for
the period (taken as one accounting period) from
January 1, 2004 to the end of the Company's most
recently ended fiscal quarter for which internal
financial statements are available at the time of such
Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, less 100% of such
deficit); plus
(B) 100% of the aggregate net cash proceeds received by the
Company since the date of this Indenture (but
excluding, for the avoidance of doubt, the proceeds
from the Rights Issue) as a contribution to its common
equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified
Stock) or from the issue or sale of convertible or
exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have
been converted into or exchanged for such Equity
Interests (other than Equity Interests (or Disqualified
Stock or debt securities) sold to a Subsidiary of the
Company); plus
(C) an amount equal to the sum of:
(i) the net reduction in the Investments (other than
Permitted Investments) made by the Company or any
Restricted Subsidiary in any Person resulting
from repurchases, repayments or redemptions of,
or expiration or cancellation (in the case of
Investments consisting of Guarantees or other
contingent obligation) of such Investments by
such Person, proceeds realized on the sale of
such Investment and proceeds representing the
return of capital (including by way of dividends
and distributions), in each case received by the
Company or any Restricted Subsidiary, and
(ii) to the extent such Person is an Unrestricted
Subsidiary, the portion (proportionate to the
Company's direct or indirect equity interest in
such Unrestricted Subsidiary) of the Fair Market
Value of the net assets of such Unrestricted
Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary;
provided, however, that the foregoing sum shall not exceed,
in the case of any such Person or Unrestricted Subsidiary,
the amount of Investments (excluding Permitted Investments)
previously made (and treated as a Restricted Payment) by the
Company or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary.
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(b) The provisions of Section 4.07(a) hereof will not prohibit:
(1) the payment of any dividend or the consummation of any irrevocable
redemption within 60 days after the date of declaration of the
dividend or giving of the redemption notice, as the case may be, if
at the date of declaration or notice, the dividend or redemption
payment would have complied with the provisions of this Indenture;
(2) the making of any Restricted Payment in exchange for, or out of the
net cash proceeds of the substantially concurrent sale (other than
to a Subsidiary of the Company) of, Equity Interests of the Company
(other than Disqualified Stock) or from the substantially
concurrent contribution of common equity capital to the Company;
provided that the amount of any such net cash proceeds that are
utilized for any such Restricted Payment will be excluded from
clause (4)(3)(B) of the preceding paragraph;
(3) the repurchase, redemption, defeasance or other acquisition or
retirement for value of Indebtedness of the Company or any
Subsidiary Guarantor that is contractually subordinated to the
Notes or to any Guarantee with the net cash proceeds from a
substantially concurrent incurrence of Permitted Refinancing
Indebtedness;
(4) so long as no Default has occurred and is continuing or would be
caused thereby, the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any current or former
officer, director or employee of the Company or any of its
Restricted Subsidiaries pursuant to any equity subscription
agreement, stock option agreement, shareholders' agreement or
similar agreement; provided that the aggregate price paid for all
such repurchased, redeemed, acquired or retired Equity Interests
may not exceed *500,000 in any twelve-month period;
(5) the repurchase of Equity Interests deemed to occur upon the
exercise of stock options to the extent such Equity Interests
represent a portion of the exercise price of those stock options;
and
(6) so long as no Default has occurred and is continuing or would be
caused thereby, the declaration and payment of regularly scheduled
or accrued dividends to holders of any class or series of
Disqualified Stock of the Company or a Subsidiary Guarantor issued
on or after the date of this Indenture in accordance with the Fixed
Charge Coverage Ratio test described in Section 4.09.
(c) The amount of all Restricted Payments (other than cash) will be the Fair
Market Value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The Fair Market Value of any assets or securities that are
required to be valued by this covenant will be determined by the Board of
Directors of the Company whose resolution with respect thereto will be
delivered to the Trustee. The Board of Directors' determination must be
based upon an
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opinion or appraisal issued by an accounting, appraisal or investment
banking firm of international standing if the Fair Market Value exceeds
$20.0 million.
SECTION 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability
of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock
to the Company or any of its Restricted Subsidiaries, or with
respect to any other interest or participation in, or measured by,
its profits, or pay any indebtedness owed to the Company or any of
its Restricted Subsidiaries;
(2) make loans or advances to the Company or any of its Restricted
Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the
Company or any of its Restricted Subsidiaries.
(b) The restrictions of Section 4.08(a) hereof will not apply to encumbrances
or restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness, the Credit Facilities
and the Intercreditor Agreement, in each case, as in effect on the
date of this Indenture and any amendments, restatements,
modifications, renewals, supplements, refundings, replacements or
refinancings of those agreements; provided that the amendments,
restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive,
taken as a whole, with respect to such dividend and other payment
restrictions than those contained in those agreements on the date
of this Indenture;
(2) this Indenture, the Notes, the Guarantees, the Share Pledges and
the Funding Loan Pledge;
(3) applicable law, rule, regulation or order;
(4) any instrument governing Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such
Indebtedness or Capital Stock was incurred in connection with or in
contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or
assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this
Indenture to be incurred;
(5) security agreements or mortgages securing Indebtedness to the
extent (a) such encumbrance or restriction restricts the transfer
of the property subject to such security agreements or mortgages
and (b) such Indebtedness was permitted to be incurred pursuant to
Section 4.09 and the related Liens were permitted pursuant to
Section 4.12;
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(6) customary restrictions on subletting, assignment or transfer of any
property that is subject to a contract or license, of the
assignment or transfer of any contract or license, in each case
entered into in the ordinary course of business;
(7) purchase money obligations for property acquired in the ordinary
course of business and Capital Lease Obligations that impose
restrictions on the property purchased or leased of the nature
described in clause (3) of the preceding paragraph;
(8) any agreement for the sale or other disposition of a Restricted
Subsidiary that restricts distributions by that Restricted
Subsidiary pending the sale or other disposition;
(9) Permitted Refinancing Indebtedness; provided that the restrictions
contained in the agreements governing such Permitted Refinancing
Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness
being refinanced;
(10) Liens permitted to be incurred under the provisions of Section 4.12
that limit the right of the debtor to dispose of the assets subject
to such Liens;
(11) provisions limiting the disposition or distribution of assets or
property (including Equity Interests in the entity subject to the
relevant agreement) in joint venture agreements, asset sale
agreements, sale-leaseback agreements, stock sale agreements and
other similar agreements entered into with the approval of the
Company's or the Restricted Subsidiary's Board of Directors, which
limitation is applicable only to the assets that are the subject of
such agreements;
(12) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business; and
(13) pursuant to an agreement or instrument (A) relating to any
Indebtedness permitted to be incurred subsequent to the date of
this Indenture pursuant to the provisions of Section 4.09 (i) if
the encumbrances and restrictions contained in any such agreement
or instrument taken as a whole are not materially less favorable to
the holders of the Notes than the encumbrances and restrictions
contained in the Senior Facilities, the security documents related
thereto and the Intercreditor Agreement as in effect on the date of
this Indenture, or (ii) if such encumbrances and restrictions is
not materially more disadvantageous to the holders of the Notes
than is customary in comparable financings and either (x) the
Company determines that such encumbrance or restriction will not
materially affect the Issuer's ability to make principal or
interest payments on the Notes or (y) such encumbrance or
restriction applies only if a default occurs in respect of a
payment or financial covenant relating to such Indebtedness.
SECTION 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, "incur") any Indebtedness
(including Acquired Indebtedness), and the Company will not issue any
- 54 -
Disqualified Stock and will not permit any of its Restricted Subsidiaries
to issue any shares of preferred stock; provided, however, that the
Company may incur Indebtedness (including Acquired Indebtedness) or issue
Disqualified Stock, and the Issuer may issue Additional Notes and the
Guarantors may incur Indebtedness (including Acquired Indebtedness) or
issue preferred stock, if the Fixed Charge Coverage Ratio for the
Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such
Disqualified Stock or such preferred stock is issued, as the case may be,
would have been at least 2.50 to 1.00, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred or the Disqualified Stock
or the preferred stock had been issued, as the case may be, at the
beginning of such four-quarter period.
(b) The provisions of Section 4.09(a) hereof will not prohibit the incurrence
of any of the following items of Indebtedness (collectively, "Permitted
Indebtedness"):
(1) the incurrence by the Company and any Restricted Subsidiary of
additional Indebtedness and letters of credit under Credit
Facilities in an aggregate principal amount at any one time
outstanding under this clause (1)(with letters of credit being
deemed to have a principal amount equal to the maximum potential
liability of the Company and its Restricted Subsidiaries
thereunder) not to exceed *330 million less the aggregate amount of
all Net Proceeds of Asset Sales applied by the Company or any of
its Restricted Subsidiaries since the date of this Indenture to
repay any term Indebtedness under any such Credit Facility or to
repay any revolving credit Indebtedness under any such Credit
Facility and effect a corresponding commitment reduction thereunder
pursuant to Section 4.10 and less the aggregate amount of any
commitment reduction, cancellation or repayment under any letter of
credit under Term Loan B of the German Senior Facility;
(2) the incurrence by the Company and its Restricted Subsidiaries of
the Existing Indebtedness;
(3) the incurrence by the Issuer, the Company and the other Guarantors
of Indebtedness represented by the Notes and the related Guarantees
to be issued on the date of this Indenture;
(4) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness represented by Capital Lease Obligations, mortgage
financings or purchase money obligations, in each case, incurred
for the purpose of financing all or any part of the purchase price
or cost of design, construction, installation or improvement of
property, plant or equipment used in the business of the Company or
any of its Restricted Subsidiaries, in an aggregate principal
amount, including all Permitted Refinancing Indebtedness incurred
to renew, refund, refinance, replace, defease or discharge any
Indebtedness incurred pursuant to this clause (4), not to exceed
[e]10.0 million at any time outstanding;
(5) the incurrence by the Company or any of its Restricted Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to renew, refund, refinance, replace,
defease or discharge any Indebtedness (other than intercompany
Indebtedness or Indebtedness represented by the
- 55 -
Convertible Bonds) that was permitted by this Indenture to be
incurred under the first paragraph of this covenant or clauses (2),
(3), (4), (5) or (14) of this paragraph;
(6) the incurrence by the Company or any of its Restricted Subsidiaries
of intercompany Indebtedness between or among the Company and any
of its Restricted Subsidiaries; provided, however, that:
(1) if the Company or any Guarantor is the obligor on such
Indebtedness and the payee is not the Company or a Guarantor,
such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations then due with
respect to the Notes, in the case of the Issuer, or the
Guarantee, in the case of a Guarantor; and
(2) (i) any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person
other than the Company or a Restricted Subsidiary of the
Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in each
case, to constitute an incurrence of such Indebtedness by the
Company or such Restricted Subsidiary, as the case may be,
that was not permitted by this clause (6);
(7) the issuance by any of the Company's Restricted Subsidiaries to the
Company or to any of its Restricted Subsidiaries of shares of
preferred stock; provided, however, that:
(1) any subsequent issuance or transfer of Equity Interests that
results in any such preferred stock being held by a Person
other than the Company or a Restricted Subsidiary of the
Company; and
(2) any sale or other transfer of any such preferred stock to a
Person that is not either the Company or a Restricted
Subsidiary of the Company, will be deemed, in each case, to
constitute an issuance of such preferred stock by such
Restricted Subsidiary that was not permitted by this clause
(7);
(8) the incurrence by the Company or any of its Restricted Subsidiaries
of Hedging Obligations in the ordinary course of business;
(9) the guarantee by the Company or any of the Subsidiary Guarantors of
Indebtedness of the Company or a Subsidiary Guarantor of the
Company that was permitted to be incurred by another provision of
this covenant; provided that if the Indebtedness being guaranteed
is subordinated to or pari passu with the Notes, then the Guarantee
shall be subordinated or pari passu, as applicable, to the same
extent as the Indebtedness guaranteed;
(10) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness in respect of workers' compensation claims,
self-insurance obligations, bankers' acceptances, performance, bid
and surety bonds in the ordinary course of business;
- 56 -
(11) the incurrence by the Company or any of its Restricted Subsidiaries
of Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within five business days;
(12) customer deposits and advance payments received from customers for
goods purchased in the ordinary course of business;
(13) Indebtedness constituting reimbursement obligations with respect to
bank guarantees and VAT guarantees issued in the ordinary course of
business; provided, however, that, upon demand being made under
such reimbursement obligations, such demands are satisfied within
30 days of the date of such demand; and
(14) (a) the incurrence by any Guarantor of additional Indebtedness in
an aggregate principal amount (or accreted value, as applicable) at
any time outstanding, not to exceed *20 million; (b) the incurrence
by any Restricted Subsidiary which is not a Guarantor of additional
Indebtedness in an aggregate principal amount (or accreted value,
as applicable) at any time outstanding, not to exceed *30 million;
and (c) the incurrence of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any time
outstanding, not to exceed *25 million; provided however, that the
aggregate principal amount (or accreted value, as applicable) of
additional Indebtedness incurred pursuant to this clause (14) shall
at no time exceed *50 million at any time outstanding.
(c) For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness described in clauses
(1) through (14) above, or is entitled to be incurred pursuant to the
first paragraph of this covenant, the Company will be permitted to
classify such item of Indebtedness on the date of its incurrence, or
later reclassify all or a portion of such item of Indebtedness, in any
manner that complies with this covenant. Indebtedness under Credit
Facilities outstanding on the date on which Notes are first issued and
authenticated under this Indenture will initially be deemed to have been
incurred on such date in reliance on the exception provided by clause (1)
of the definition of Permitted Indebtedness.
(d) The accrual of interest, the accretion or amortization of original issue
discount, the payment of interest on any Indebtedness in the form of
additional Indebtedness with the same terms, the reclassification of
preferred stock as Indebtedness due to a change in accounting principles,
and the payment of dividends on Disqualified Stock in the form of
additional shares of the same class of Disqualified Stock will not be
deemed to be an incurrence of Indebtedness or an issuance of Disqualified
Stock for purposes of this covenant; provided, in each such case, that
the amount thereof is included in Fixed Charges of the Company as
accrued. For purposes of determining compliance with the euro
denominated restriction on the incurrence of Indebtedness where
Indebtedness incurred is denominated in a different currency, the amount
of such Indebtedness will be the Euro Equivalent determined on the date
of the incurrence of such Indebtedness. The principal amount of any
Permitted Refinancing Indebtedness incurred will be the Euro Equivalent
of the Indebtedness refinanced, except to the extent that the principal
amount of the Permitted Refinancing Indebtedness exceeds the equivalent
amount of the Indebtedness being refinanced, in which case the Euro
Equivalent of such excess
- 57 -
will be determined on the date such Permitted Refinancing Indebtedness is
incurred. Notwithstanding any other provision of this covenant, the
maximum amount of Indebtedness that the Company or any Restricted
Subsidiary may incur pursuant to this covenant shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency
values.
SECTION 4.10 Asset Sales.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of the Asset Sale at least equal
to the Fair Market Value of the assets or Equity Interests issued
or sold or otherwise disposed of; and
(2) at least 75% of the consideration received in the Asset Sale by the
Company or such Restricted Subsidiary is in the form of cash or
Cash Equivalents. For purposes of this provision, each of the
following will be deemed to be cash:
(1) any liabilities, as shown on the Company's most recent
consolidated balance sheet, of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to the Notes or any
Guarantee) that are assumed by the transferee of any such
assets and for which the Company or such Restricted
Subsidiary has been validly released by all creditors in
writing;
(2) any securities, notes or other obligations received by the
Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such
Restricted Subsidiary into cash within 180 days following the
closing of such Asset Sale, to the extent of the cash
received in that conversion; and
(3) any stock or assets of the kind referred to in clauses (2) or
(4) of the next paragraph of this covenant.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Company (or the applicable Restricted Subsidiary, as the case may be)
may apply such Net Proceeds at its option:
(1) to repay Senior Indebtedness or Indebtedness under the Senior
Facilities of a Restricted Subsidiary that is not a Subsidiary
Guarantor and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect
thereto;
(2) to acquire all or substantially all of the assets of, or any
Capital Stock of, another Permitted Business, if, after giving
effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Restricted Subsidiary of the Company;
(3) to make a capital expenditure; or
- 58 -
(4) to acquire other assets that are not classified as current assets
under IFRS and that are used or useful in a Permitted Business,
provided that if the Asset Sale was consummated by a Subsidiary
Guarantor, in addition to the requirements set forth above, such
Subsidiary Guarantor shall be required to:
(1) to repay Senior Indebtedness or Indebtedness under the Senior
Facilities of a Restricted Subsidiary that is not a Subsidiary
Guarantor and, if the Indebtedness repaid is revolving credit
Indebtedness, to correspondingly reduce commitments with respect
thereto;
(2) to acquire all or substantially all of the assets of, or any
Capital Stock of, another Permitted Business, if, after giving
effect to any such acquisition of Capital Stock, the Permitted
Business is or becomes a Guarantor;
(3) to make a capital expenditure for an asset to be owned by a
Guarantor; or
(4) to acquire other assets that are not classified as current assets
under IFRS and that are used or useful in a Permitted Business and
are otherwise owned by a Guarantor.
(c) Pending the final application of any Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest the
Net Proceeds in any manner that is not prohibited by this Indenture.
(d) Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the second paragraph of this covenant will constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds *10.0
million, within five business days thereof, the Issuer will make an Asset
Sale Offer to all Holders of Notes and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to those
set forth in this Indenture with respect to offers to purchase or redeem
with the proceeds of sales of assets to purchase the maximum principal
amount of Notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale
Offer will be equal to 100% of the principal amount plus accrued and
unpaid interest to the date of purchase, and will be payable in cash. If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company may use those Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. If the aggregate principal amount of Notes
and other pari passu Indebtedness tendered into such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee will select the Notes
and such other pari passu Indebtedness to be purchased on a pro rata
basis. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds will be reset at zero.
(e) The Issuer will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with
each repurchase of Notes pursuant to an Asset Sale Offer. To the extent
that the provisions of any securities laws or regulations conflict with
the Asset Sale provisions of this Indenture, the Issuer will comply with
the applicable securities laws and regulations and will not be deemed to
have breached its obligations under the Asset Sale provisions of this
Indenture by virtue of such compliance.
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SECTION 4.11 Transactions with Affiliates.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or
otherwise dispose of any of its properties or assets to, or purchase any
property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or
for the benefit of, any Affiliate of the Company (each, an "Affiliate
Transaction"), unless:
(1) the Affiliate Transaction is on terms that are not materially less
favorable to the Company or the relevant Restricted Subsidiary than
those that would have been obtained in a comparable transaction by
the Company or such Restricted Subsidiary with an unrelated Person;
and
(2) the Company delivers to the Trustee:
(1) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of *5.0 million, a resolution of the
Board of Directors of the Company set forth in an Officers'
Certificate certifying that such Affiliate Transaction
complies with this covenant and that such Affiliate
Transaction has been approved by a majority of the
disinterested members of the Board of Directors of the
Company; and
(2) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate
consideration in excess of *15.0 million, an opinion as to
the fairness to the Company or such Subsidiary of such
Affiliate Transaction from a financial point of view issued
by an accounting, appraisal or investment banking firm of
international standing.
(b) The following items will not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of the prior paragraph:
(1) the entering into, maintaining or performing of any employee
contract, collective bargaining agreement, benefit plan, program or
arrangement, related trust agreement or any other similar
arrangement for or with any employee, officer or director
heretofore or hereafter entered into in the ordinary course of
business, including vacation, health, insurance, deferred
compensation, severance, retirement, savings of other similar
plans, programs or arrangements; the payment of compensation,
performance of indemnification or contribution obligations or any
issuance, grant or award or stock options, other equity-related
interests of other securities, to employees, officers or directors
in the ordinary course of business; or the payment of fees to
directors;
(2) transactions between or among the Company and/or its Restricted
Subsidiaries;
(3) transactions with a Person (other than an Unrestricted Subsidiary
of the Company) that is an Affiliate of the Company solely because
the Company owns, directly or through a Restricted Subsidiary, an
Equity Interest in, can designate one or more board members of, or
otherwise controls, such Person;
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(4) payment of reasonable directors' fees to Persons who are not
otherwise Affiliates of the Company;
(5) any issuance of Equity Interests (other than Disqualified Stock) of
the Company to Affiliates of the Company;
(6) Restricted Payments that do not violate the provisions of this
Indenture described above under the caption "- Restricted
Payments;"
(7) any customary tax sharing agreement or arrangement and payments
pursuant thereto between or among the Company, the Issuer and any
Restricted Subsidiaries not otherwise prohibited by this Indenture;
(8) any agreement in effect on the date of this Indenture or any
amendment thereto (so long as such amendment is not disadvantageous
to the holders, in any material respect) or any transaction
contemplated thereby; and
(9) loans or advances to employees in the ordinary course of business
not to exceed e2.0 million in the aggregate at any one time
outstanding.
SECTION 4.12 Liens.
(a) The Company will not and will not permit any of its Restricted
Subsidiaries to, create, incur, assume or otherwise cause or suffer to
exist or become effective any Lien (the "Initial Lien") of any kind
(other than Permitted Liens) securing Indebtedness, Attributable
Indebtedness or trade payables upon any of their property or assets, now
owned or hereafter acquired, unless all payments due under this Indenture
and the Notes are secured on an equal and ratable basis (or, if the
Indebtedness or Attributable Indebtedness to be secured by such Lien is
subordinate or junior in right of payment to the Notes or any Guarantee,
as applicable, in priority to) with the obligations so secured until such
time as such obligations are no longer secured by a Lien.
(b) Any Lien created for the benefit of the holders of the Notes pursuant to
the preceding paragraph shall provide by its terms that such Lien shall
be automatically released and discharged upon: (i) the release and
discharge of the Initial Lien; (ii) with respect to any Restricted
Subsidiary the assets of which, or the Capital Stock of which, are
encumbered by such Lien, upon, (A) any sale, exchange or other
disposition to a Person that is not an Affiliate of the Company of all of
the Capital Stock of such Restricted Subsidiary held directly of
indirectly by the Company of all or substantially all of the assets of
such Restricted Subsidiary; provided that the Company applies the
proceeds of such sale, exchange or other disposition is made in
compliance with Section 4.10 or (B) the designation of such Restricted
Subsidiary as an Unrestricted Subsidiary in accordance with the terms of
this Indenture; or (iii) upon the effectiveness of any legal defeasance
of the Notes as specified in this Indenture.
SECTION 4.13 Issuer; Group Business Activities.
(a) The Issuer will not engage in any activity, except any activity:
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(1) relating to the offering, sale, issuance and servicing of the Notes
or other Indebtedness of the Issuer permitted under this Indenture
or lending of the proceeds of the Notes or any such other
Indebtedness to the Company;
(2) undertaken with the purpose of, and directly related to, fulfilling
its obligations under the Notes and this Indenture of such other
Indebtedness, including the making of the Issuer Permitted
Investments, or
(3) directly related to the establishment and/or maintenance of the
Issuer's corporate existence or to the maintenance in Luxembourg of
a seat and place of management for legal and tax purposes.
(b) The Issuer shall not:
(1) issue any Capital Stock other than to the Company or SGL CARBON
Beteiligung GmbH;
(2) take any action which would cause it to no longer satisfy the
requirements of an available exemption from the provisions of the
U.S. Investment Company Act of 1940, as amended; or
(3) make any Issuer Restricted Payment, incur any Lien (other than an
Issuer Permitted Lien), or sell, lease, transfer or otherwise
dispose of any interest in any asset other than pursuant to the
Share Pledges and the Funding Loan Pledge and as expressly
permitted under this Indenture.
(c) The Company will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than Permitted Businesses,
except to such extent as would not be material to the Company and its
Restricted Subsidiaries taken as a whole.
SECTION 4.14 Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:
(a) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time)
of the Company or any such Subsidiary; and
(b) the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if
the Board of Directors shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse
in any material respect to the Holders of the Notes.
SECTION 4.15 Offer to Repurchase Upon Change of Control.
(a) If a Change of Control occurs, each Holder of Notes will have the right
to require the Issuer to repurchase all or any part (equal to [e]1,000 or
an integral multiple of [e]1,000) of
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that holder's Notes pursuant to a change of control offer (a "Change of
Control Offer"). In the Change of Control Offer, the Issuer will offer a
Change of Control Payment in cash equal to 101% of the aggregate
principal amount of Notes repurchased, plus accrued and unpaid interest,
on the Notes repurchased to the date of purchase, subject to the rights
of Holders of Notes on the relevant record date to receive interest due
on the relevant Regular Interest Payment Date. Within 30 days following
any Change of Control, the Issuer will mail a notice to each holder
describing the transaction or transactions that constitute the Change of
Control and offering to repurchase Notes on the Change of Control Payment
Date specified in the notice, which date will be no earlier than 30 days
and no later than 60 days from the date such notice is mailed, pursuant
to the procedures required by this Indenture and described in such
notice.
(b) The Issuer will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to
the extent those laws and regulations are applicable in connection with
the repurchase of the Notes as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict
with the Change of Control provisions of this Indenture, the Issuer will
comply with the applicable securities laws and regulations and will not
be deemed to have breached its obligations under the Change of Control
provisions of this Indenture by virtue of such compliance.
(c) On the Change of Control Payment Date, the Issuer will, to the extent
lawful:
(1) accept for payment all Notes or portions of Notes properly tendered
pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the Change of
Control Payment in respect of all Notes or portions of Notes
properly tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes properly
accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions of Notes being
purchased by the Issuer.
(d) The paying agent will promptly mail to each Holder of Notes properly
tendered the Change of Control Payment for such Notes, and the Trustee
will promptly authenticate and mail (or cause to be transferred by book
entry) to each holder a new note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any. The Issuer will
publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Payment Date.
(e) Prior to complying with any of the provisions of this Section 4.15, but
in any event within 90 days following a Change of Control, the Company
will either repay all outstanding Senior Indebtedness or obtain the
requisite consents, if any, under all agreements governing outstanding
Senior Indebtedness to permit the repayment of the Funding Loan and
repurchase of Notes required by this Section 4.15.
(f) The Issuer will not be required to make a Change of Control Offer upon a
Change of Control if (1) a third party makes the Change of Control Offer
in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Issuer and purchases all Notes properly
tendered and not withdrawn under the Change of Control Offer, or (2)
notice of
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redemption has been given pursuant to Section 3.07 of this Indenture,
unless and until there is a default in payment of the applicable
redemption price.
SECTION 4.16 No Layering of Indebtedness.
(a) The Issuer will not incur any Indebtedness (including Permitted
Indebtedness) that is contractually subordinated in right of payment to
any other Indebtedness of the Issuer unless such Indebtedness is also
contractually subordinated in right of payment to the Notes on
substantially identical terms; provided, however, that no Indebtedness
will be deemed to be contractually subordinated in right of payment to
any other Indebtedness of Issuer solely by virtue of being unsecured or
by virtue of being secured on a first or junior Lien basis.
(b) No Guarantor (including, without limitation, the Company) will incur,
create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is contractually subordinate or junior in right of
payment to the Senior Indebtedness of such Guarantor and senior in right
of payment to such Guarantor's Guarantee. No such Indebtedness will be
considered to be senior by virtue of being secured on a first or junior
priority basis.
SECTION 4.17 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Restricted Subsidiaries
to, enter into any sale and leaseback transaction; provided that the Company or
any Subsidiary Guarantor may enter into a sale and leaseback transaction if:
(a) The Company or that Subsidiary Guarantor, as applicable, could have (a)
incurred Indebtedness in an amount equal to the Attributable Indebtedness
relating to such sale and leaseback transaction under the Fixed Charge
Coverage Ratio test in Section 4.09(a) and (b) incurred a Lien to secure
such Indebtedness pursuant to Section 4.12 hereof;
(b) the gross cash proceeds of that sale and leaseback transaction are at
least equal to the Fair Market Value, as determined in good faith by the
Board of Directors of the Company and set forth in an Officers'
Certificate delivered to the Trustee, of the property that is the subject
of that sale and leaseback transaction; and
(c) the transfer of assets in that sale and leaseback transaction is
permitted by, and the Company or the applicable Subsidiary Guarantor
applies the proceeds of such transaction in compliance with, Section 4.10
hereof.
SECTION 4.18 Limitation on Issuances and Sales of Equity Interests in
Wholly-Owned Restricted Subsidiaries.
(a) The Company:
(1) will not, and will not permit any Restricted Subsidiary to, sell,
lease, transfer or otherwise dispose of any Equity Interests of any
Restricted Subsidiary to any Person (other than to the Company or a
Wholly-Owned Restricted Subsidiary); and
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(2) will not permit any Restricted Subsidiary to issue any of its
Equity Interests (other than, if necessary, shares of its Equity
Interests constituting directors' or other legally required
qualifying shares) to any Person (other than to the Company or a
Wholly-Owned Restricted Subsidiary);
in each case, unless such issuance, sale or disposition is effected in
compliance with Section 4.10 and
(1) immediately after giving effect to such issuance, sale or
other disposition, such Restricted Subsidiary remains a
Restricted Subsidiary; or
(2) immediately after giving effect to such issuance, sale or
other disposition, such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and any Investment in such
Person remaining after giving effect thereto is treated as a
new Investment by the Company and such Investment would be
permitted to be made pursuant to Section 4.07 if made on the
date of such issuance, sale or other disposition,
provided that, in no event shall the Company permit the Issuer to issue
any of its Equity Interests (other than, if necessary, shares of its
Equity Interests constituting directors' or other legally required
qualifying shares) to any Person other than to the Company or SGL CARBON
Beteiligung GmbH.
SECTION 4.19 Subsidiary Guarantees of Indebtedness.
(a) The Company will not permit any of its Restricted Subsidiaries that is a
Significant Subsidiary, directly or indirectly, to guarantee or pledge
any assets to secure the payment of any other Indebtedness of the Company
(other than Guarantees provided for the benefit of Credit Facilities
constituting Senior Indebtedness in existence on or prior to the date of
this Indenture) unless such Restricted Subsidiary simultaneously executes
and delivers a supplemental indenture providing for the Guarantee of the
payment of the Notes by such Restricted Subsidiary, which Guarantee will
be senior to or pari passu with such Restricted Subsidiary's Guarantee of
or pledge to secure such other Indebtedness unless such other
Indebtedness is Senior Indebtedness, in which case the Guarantee of the
Notes may be subordinated to the Guarantee of such Senior Indebtedness to
the same extent as the Notes are subordinated to such Senior
Indebtedness; provided that the Company shall not be obligated to cause
such Restricted Subsidiary to Guarantee the Notes to the extent that such
Guarantee could be reasonably be expected to give rise to or result in
(now or in the future):
(1) any violation of applicable law that cannot be avoided or otherwise
prevented through measures reasonably available to the Company or
such Restricted Subsidiary;
(2) any liability for the officers, directors or shareholders of such
Restricted Subsidiary; or
(3) any cost, expense, liability or obligations (including any tax)
other that reasonable out of pocket expenses and other than
reasonable governmental or regulatory filing fees.
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(b) If (A) a Subsidiary Guarantor sells, leases, conveys or otherwise
disposes of any assets (other than inventory, raw materials, supplies and
intellectual property and know-how in the ordinary course of business) or
rights (other than cash or Cash Equivalents), or issues or sells Equity
Interests in any of the Company's Restricted Subsidiaries (other than
directors' qualifying shares or shares required by applicable law to be
held by a Person other than the Company or a Restricted Subsidiary) to a
Restricted Subsidiary that is not a Subsidiary Guarantor in one or a
series of related transactions and (B) the book value of all assets,
rights or Equity Interests so sold, leased, conveyed, otherwise disposed
or issued measured on an aggregate basis from the date of the last
quarterly balance sheet date prior to the date of this Indenture exceeds
5% of the Subsidiary Guarantors' consolidated assets (net of goodwill)
measured as of the date of the Subsidiary Guarantors' latest balance
sheet prior to the date of such sale, lease, conveyance, disposal or
issuance, then the Company shall cause:
(1) one or more non-Guarantor Restricted Subsidiaries to simultaneously
execute and deliver a supplemental indenture providing for the
Guarantee of the payment of the Notes by such Restricted
Subsidiaries such that, after giving effect to the new Subsidiary
Guarantees, the Subsidiary Guarantors' consolidated assets (net of
goodwill) exceeds the Subsidiary Guarantors' consolidated assets
(net of goodwill) immediately prior to the disposition giving rise
to the new Subsidiary Guarantee or Guarantees; and
(2) the direct parent company or companies of such non-Guarantor
Restricted Subsidiary to simultaneously execute and deliver a share
pledge, on terms substantially similar to the Share Pledges,
granting a second-ranking pledge of the Capital Stock of such
non-Guarantor Restricted Subsidiary to the Security Agent for the
benefit of the Trustee and the holders of the Notes.
SECTION 4.20 Payments for Consent.
The Company will not, and will not permit any of its Restricted Subsidiaries
to, directly or indirectly, pay or cause to be paid any consideration to or for
the benefit of any Holder of Notes for or as an inducement to any consent,
waiver or amendment of any of the terms or provisions of this Indenture or the
Notes unless such consideration is offered to be paid and is paid to all
holders of the Notes that consent, waive or agree to amend in the time frame
set forth in the solicitation documents relating to such consent, waiver or
agreement.
SECTION 4.21 Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if that designation would not cause a Default.
If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate Fair Market Value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted
will be deemed to be an Investment made as of the time of the designation and
will reduce the amount available for Restricted Payments under Section 4.07 or
under one or more clauses of the definition of Permitted Investments, as
determined by the Company. That designation will only be permitted if the
Investment would be permitted at that time and if the Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. The Board of
Directors of the Company may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if that redesignation would not cause a Default.
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Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary
will be evidenced to the Trustee by filing with the Trustee a certified copy of
a resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
preceding conditions and was permitted pursuant to Section 4.07. If, at any
time, any Unrestricted Subsidiary would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date pursuant to Section 4.09, the Company will be in
default of such covenant.
SECTION 4.22 Additional Amounts.
(a) All payments made by the Issuer under or with respect to the Notes
(whether or not in the form of Definitive Registered Notes) or any of the
Guarantors on its Guarantee will be made free of and without withholding
or deduction for, or on account of, any present or future taxes imposed
or levied by or on behalf of any jurisdiction in which the Issuer or any
Guarantor (including any successor entity), is then incorporated, engaged
in business or resident for tax purposes or any political subdivision
thereof or therein or any jurisdiction by or through which payment is
made (each, a "Relevant Taxing Jurisdiction"), unless the withholding or
deduction of such taxes is then required by law. If any deduction or
withholding for, or on account of, any taxes of any Relevant Taxing
Jurisdiction is required to be made from any payments made by the Issuer
under or with respect to the Notes or any of the Guarantors with respect
to any Guarantee, including payments of principal, redemption price,
purchase price, interest or premium, the Issuer or the relevant
Guarantor, as applicable, will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts
received in respect of such payments by each holder (including Additional
Amounts) after such withholding, deduction or imposition will equal the
respective amounts which would have been received in respect of such
payments in the absence of such required withholding, deduction or
imposition; provided, however, that no Additional Amounts will be payable
with respect to:
(1) any payments on a Note in respect of taxes which would not have
been imposed but for the holder or the beneficial owner of the
Notes being a citizen or resident or national of, incorporated in
or carrying on a business, in the Relevant Taxing Jurisdiction
(other than by the mere holding of such Note or enforcement of
rights thereunder or the receipt of payments in respect thereof or
any other connection with respect to the Notes);
(2) any taxes that are imposed or withheld as a result of the failure
of the holder of the Note or beneficial owner of the Notes to
comply with any request, made to that holder at least 90 days
before any such withholding or deduction would be payable, by the
Issuer or any of the Guarantors to provide timely or accurate
information concerning the nationality, residence or identity of
such holder or beneficial owner or to make any valid or timely
declaration or similar claim or satisfy any information or
reporting requirement, which is required or imposed by a statute,
treaty, regulation or administrative practice of the Relevant
Taxing Jurisdiction as a precondition to exemption from all or part
of such taxes;
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(3) any Note presented for payment (where presentation is required)
more than 30 days after the relevant payment is first made
available for payment to the holder (except to the extent that the
holder would have been entitled to Additional Amounts had the Note
been presented on the last day of such 30 day period);
(4) any tax which is payable otherwise than by deduction or withholding
from payments made under or with respect to the Notes;
(5) any taxes imposed on or with respect to any payment to a holder
that is a fiduciary or partnership or Person other than the sole
beneficial owner of such payment to the extent that the taxes would
not have been imposed on such payment had such holder been the sole
beneficial owner of such Notes;
(6) any estate, inheritance, gift, sale, transfer, personal property or
similar tax or assessment;
(7) any withholding or deduction imposed on a payment to an individual
which is required to be made pursuant to European Council Directive
2003/48/EC or any other Directive implementing the conclusions of
the ECOFIN Council meeting of 26-27 November 2000 on the taxation
of savings income or any law implementing or complying with, or
introduced in order to conform to, such Directive;
(8) any Note presented for payment by or on behalf of a Holder of Notes
who would have been able to avoid such withholding or deduction by
presenting the relevant Note to another paying agent in a member
state of the European Union; or
(9) any combination of items (1) through (8) above.
Such Additional Amounts will also not be payable where, had the
beneficial owner of the Note been the holder of the Note, it would not
have been entitled to payment of Additional Amounts by reason of clauses
(1) through (9) inclusive above.
(b) The Issuer and the Guarantors will also pay any present or future stamp,
transfer, court or documentary taxes, or any other excise or property
taxes, charges or similar levies or taxes which are levied by any
Relevant Taxing Jurisdiction in respect of the execution, issue or
delivery of the Notes or any other document or instrument referred to
therein or on the enforcement of any payments with respect to the Notes
or the Guarantees.
(c) If the Issuer or any Guarantor, as the case may be, will be obligated to
pay Additional Amounts with respect to any payment under or with respect
to the Notes or any Guarantee, the Issuer or the relevant Guarantor, as
the case may be, will deliver to the Trustee on a date which is at least
30 days prior to the date of that payment (unless the obligation to pay
Additional Amounts arises after the 30th day prior to that payment date,
in which case the Issuer or the relevant Guarantor shall notify the
Trustee promptly thereafter) an Officers' Certificate stating the fact
that Additional Amounts will be payable and the amount estimated to be so
payable. The Officers' Certificate must also set forth any other
information reasonably necessary to enable the paying agents to pay
Additional Amounts to holders on the relevant payment date. The Issuer
or the relevant Guarantor will provide the Trustee with documentation
reasonably satisfactory to the Trustee evidencing the payment of
Additional Amounts.
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(d) The Issuer or the relevant Guarantor will make all required withholdings
and deductions and will remit the full amount deducted or withheld to the
Relevant Taxing Jurisdiction in accordance with applicable law. The
Issuer or the relevant Guarantor will use its reasonable efforts to
obtain copies of tax receipts from each tax authority in the Relevant
Taxing Jurisdictions evidencing the payment of any taxes so deducted or
withheld. Upon written request, the Issuer or the relevant Guarantor
will furnish to the holders, within a reasonable time period, copies of
tax receipts evidencing payment by the Issuer or a Guarantor, as the case
may be, in such form as provided in the normal course by the taxing
authority imposing such taxes and is reasonably available to the Issuer
or the Guarantors or if, notwithstanding such entity's efforts to obtain
receipts, receipts are not obtained, other evidence of payments by such
entity.
(e) In the event that either the Issuer or the relevant Guarantor has become,
or would be, obliged to pay on the next date on which any amount would be
payable under or with respect to the Notes, any Additional Amounts as a
result of certain changes affecting the laws relating to withholding or
deduction of taxes, the Issuer may redeem all, but not less than all, the
Notes in accordance with Section 3.10.
(f) Whenever in this Indenture there is mentioned, in any context, the
payment of amounts based upon the principal amount of the Notes or of
principal, interest or of any other amount payable under, or with respect
to, any of the Notes, 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.
SECTION 4.23 Convertible Bonds.
(a) The Company will not incur or otherwise issue any Convertible Bonds after
the Issue Date. The Company will not create or permit to subsist (i) any
guarantee of the Convertible Bonds or (ii) Lien to secure the Convertible
Bonds or the guarantees thereof unless the Notes are guaranteed and
benefit from a Lien, in each case, on a pro rata and pari passu basis and
otherwise on the terms of and subject to the Convertible Trust Deed. The
Company will commence an offer to repurchase the Convertible Bonds as
soon as practicable following the Issue Date.
(b) Each Holder of Notes, by its acceptance thereof, acknowledges that the
Convertible Trustee (for the benefit of the holders of the Convertible
Bonds) will benefit from pro rata and pari passu security over the assets
that secure the Notes and the Guarantees on the terms, and subject to the
conditions, set out in the Convertible Trust Deed. Each Holder of the
Notes, by its acceptance thereof, consents and agrees to the terms of the
Convertible Trust Deed and authorizes and directs The Bank of New York to
enter into the Convertible Trust Deed and to perform its respective
obligations and exercise its respective rights thereunder in accordance
therewith.
ARTICLE 5
SUCCESSORS
SECTION 5.01 Merger, Consolidation, or Sale of Assets.
(a) The Company will not, directly or indirectly: (1) consolidate or merge
with or into another Person or split (including, but not limited to, any
merger (Verschmelzung) or splitting (Spaltung) within the meaning of the
German Transformation Act (UmwG)) (whether or
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not the Company is the surviving corporation); or (2) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of the
properties or assets of the Company and its Restricted Subsidiaries taken
as a whole to another Person, in each case in one or more related
transactions, unless:
(1) either: (a) the Company is the surviving corporation; or (b) the
Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment,
transfer, conveyance or other disposition has been made is a Person
organized and existing under the laws of (1) England and Wales, (2)
the United States, any State of the United States or the District
of Columbia or (3) any country that is a member of the European
Union;
(2) the Person formed by or surviving any such consolidation or merger
(if other than the Company) or the Person to which such sale,
assignment, transfer, conveyance or other disposition has been made
assumes all the obligations of the Company under the Notes, this
Indenture, the Intercreditor Agreement and the Security Documents
pursuant to agreements reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default
exists; and
(4) the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to which
such sale, assignment, transfer, conveyance or other disposition
has been made could, on the date of such transaction after giving
pro forma effect thereto and any related financing transactions,
incur at least *1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph
of Section 4.09.
In addition, the Company will not, directly or indirectly, lease all or
substantially all of the properties and assets of it and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to
any other Person.
(b) No Subsidiary Guarantors will, directly or indirectly: (1) consolidate or
merge with or into another Person or split (including, but not limited
to, any merger (Verschmelzung) or splitting (Spaltung) within the meaning
of the German Transformation Act (UmwG)) (whether or not such Subsidiary
Guarantor is the surviving corporation); or (2) sell, assign, transfer,
convey or otherwise dispose of all or substantially all of the properties
or assets of such Subsidiary Guarantor taken as a whole to another Person
(other than the Company or another Subsidiary Guarantor), in each case in
one or more related transactions, unless:
(1) either: (a) such Subsidiary Guarantor is the surviving corporation;
or (b) the Person formed by or surviving any such consolidation or
merger (if other than the Subsidiary Guarantor) or to which such
sale, assignment, transfer, conveyance or other disposition has
been made is a Person organized and existing under the laws of (1)
England and Wales, (2) the United States, any State of the United
States or the District of Columbia or (3) any country that is a
member of the European Union;
(2) the Person formed by or surviving any such consolidation or merger
(if other than such Subsidiary Guarantor) or the Person to which
such sale, assignment,
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transfer, conveyance or other disposition has been made assumes all
the obligations of such Subsidiary Guarantor under its Guarantee,
this Indenture, the Intercreditor Agreement and the Security
Documents, pursuant to agreements reasonably satisfactory to the
Trustee; and
(3) immediately after such transaction, no Default or Event of Default
exists.
(c) This Section 5.01 will not apply to:
(1) a merger of the Company with an Affiliate solely for the purpose of
reincorporating the Company in another jurisdiction;
(2) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among
the Company and Subsidiary Guarantors;
(3) any consolidation or merger, or any sale, assignment, transfer,
conveyance, lease or other disposition of assets between or among
the non-Guarantor Restricted Subsidiaries; or
(4) with respect to the provisions set forth in Section 5.01(b) any
transactions which constitutes an Asset Sale if provisions of
Section 4.10 have been complied with.
SECTION 5.02 Successor Corporation Substituted.
(a) Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of the Company in a transaction that is subject to,
and that complies with the provisions of, Section 5.01(a) hereof, the
successor Person formed by such consolidation or into or with which the
Company is merged or to which such sale, assignment, transfer, lease,
conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other
disposition, the provisions of this Indenture, the Notes, the
Intercreditor Agreement and the Security Documents referring to the
"Company" shall refer instead to the successor Person and not to the
Company), and may exercise every right and power of the Company under
this Indenture, the Notes, the Intercreditor Agreement and the Security
Documents with the same effect as if such successor Person had been named
as the Company herein and therein; provided, however, that the
predecessor Company shall not be relieved from the obligation to pay the
principal, interest or Additional Amounts on the Notes except in the case
of a sale of all of the Company's assets in a transaction that is subject
to, and that complies with the provisions of, Section 5.01(a) hereof.
(b) Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
properties or assets of any of the Subsidiary Guarantors a transaction
that is subject to, and that complies with the provisions of, Section
5.01(b) hereof, the successor Person formed by such consolidation or into
or with which the relevant Subsidiary Guarantors is merged or to which
such sale, assignment, transfer, lease, conveyance or other
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disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, assignment,
transfer, lease, conveyance or other disposition, the provisions of this
Indenture, the Guarantees, the Intercreditor Agreement and the Security
Documents referring to the relevant "Subsidiary Guarantor" shall refer
instead to the successor Person and not to the relevant Subsidiary
Guarantor), and may exercise every right and power of the relevant
Subsidiary Guarantor under this Indenture, the Guarantees, the
Intercreditor Agreement and the Security Documents with the same effect
as if such successor Person had been named as the Subsidiary Guarantor
herein and therein; provided, however, that the predecessor Subsidiary
Guarantor shall not be relieved from the obligation to pay the principal,
interest and Additional Amounts on the Notes pursuant to its Guarantee
except in the case of a release of the Subsidiary Guarantee that complies
with the provisions of Section 11.05 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following is an "Event of Default":
(1) default for 30 days in the payment when due of interest on, or with
respect to, the Notes;
(2) default in the payment when due (at maturity, upon redemption or
otherwise) of the principal of, or premium, if any, on, the notes;
(3) failure by the Issuer, the Company or any of its Restricted
Subsidiaries to comply with the provisions or any of its Restricted
Subsidiaries to comply with the provisions of Sections 4.10, 4.15
or 5.01 hereof;
(4) failure by the Issuer, the Company or any of its Restricted
Subsidiaries for 60 days after notice to the Company by the Trustee
or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding voting as a single class to comply with any
of the other agreements in this Indenture, the Security Documents
or, to the extent the Convertible Bonds remain outstanding, the
Intercreditor Agreement or the Convertible Trust Deed (but only
with respect of Defaults related to, caused by, or arising in
respect of the Convertible Bonds);
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Issuer, the Company or
any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Issuer, the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists,
or is created after the date of this Indenture, if that default:
(1) is caused by a failure to pay principal of, or interest or
premium, if any, on, such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness
on the date of such default (a "Payment Default"); or
(2) results in the acceleration of such Indebtedness prior to its
express maturity,
and, in each case, the principal amount of any such Indebtedness,
together with the principal amount of any other such Indebtedness under
which there has been a Payment
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Default or the maturity of which has been so accelerated, aggregates
[e]10.0 million or more;
(6) failure by the Issuer, the Company or any of its Restricted
Subsidiaries to pay final judgments entered by a court or courts of
competent jurisdiction aggregating in excess of [e]10.0 million,
which judgments are not paid, discharged, fully covered by
insurance or stayed for a period of 60 days;
(7) the security interests under any of the Share Pledges or the
Funding Loan Pledge shall, at any time, other than in accordance
with its terms, cease to be in full force and effect for any reason
other than the satisfaction in full of all obligations under this
Indenture and discharge of this Indenture or any security interest
created hereunder or under any of the Share Pledges or Funding Loan
Pledge shall be declared invalid or unenforceable or the Company,
the Issuer or any Affiliate of the Company shall assert, in any
pleading in any court of competent jurisdiction that any such
security interest is invalid or unenforceable;
(8) except as permitted by this Indenture, any Guarantee is held in any
judicial proceeding to be unenforceable or invalid or ceases for
any reason to be in full force and effect, or any Guarantor, or any
Person acting on behalf of any Guarantor, denies or disaffirms its
obligations under its Guarantee;
(9) the Issuer, the Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary, any Guarantor or any group of
Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it
in an involuntary case;
(C) consents to the appointment of a custodian of it or for
all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors; or
(E) generally is not paying its debts as they become due,
is unable or admits inability to pay its debts as they
fall due or suspends making payments on any of its
debts, including, without limitation, with respect to
any company incorporated under the laws of Germany (a
"German Relevant Company") is unable to pay its debts
as they fall due (Zahlungsunf{a"}higkeit) or is over
indebted ({u"}berschuldet) or makes a general
assignment for the benefit of or a composition with its
creditors or, for any of the reasons set out in
Sections 17-19 of the German Insolvenzordnung, any
German Relevant Company files for insolvency (Antrag
auf Er{o"}ffnung eines Insolvenzverfahrens) or the
board of directors (Gesch{a"}ftsf{u"}hrung) of any
German Relevant Company is required by law to file for
insolvency or the competent court takes any of the
actions set out in Section 21 of the German
Insolvenzordnung or institutes insolvency proceedings
against any German Relevant Company (Er{o"}ffnung des
Insolvenzverfahrens) or any event occurs with respect
to any other Relevant Company which, under the laws
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of any jurisdiction to which it is subject or in which
it has assets, has a similar or analogous effect; and
(10) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Issuer, the Company or any of
its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a
Significant Subsidiary in an involuntary case;
(B) appoints a custodian of the Issuer, the Company or any
of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of
the Company that, taken together, would constitute a
Significant Subsidiary or for all or substantially all
of the property of the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that,
taken together, would constitute a Significant
Subsidiary; or
(C) orders the liquidation of the Issuer, the Company or
any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted
Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02 Acceleration.
In the case of an Event of Default specified in clause (9) or (10) of Section
6.01 hereof, with respect to the Issuer, the Company, any Guarantor, any
Restricted Subsidiary of the Company that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately.
Upon any such declaration, the Notes shall become due and payable immediately.
The Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may, on behalf of all of the Holders,
rescind an acceleration and its consequences, if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
SECTION 6.03 Other Remedies.
Subject to the Intercreditor Agreement, if an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes, the Guarantees, this Indenture or
the Security Documents.
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The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may on behalf of the Holders of all
of the Notes waive an existing Default or Event of Default and its consequences
hereunder, except a continuing Default or Event of Default in the payment of
the principal of, premium, if any, or interest on, the Notes (including in
connection with an offer to purchase); provided, however, that the Holders of a
majority in aggregate principal amount of the then outstanding Notes may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration. 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 6.05 Control by Majority.
Holders of a majority in aggregate principal amount of the then outstanding
Notes may 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 it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability or expenses; provided that the Trustee may take
any other action deemed proper by the Trustee that is not inconsistent with any
such direction. Prior to taking any action hereunder, the Trustee shall be
entitled to indemnification satisfactory to it in its sole discretion against
all losses and expenses caused by taking or not taking such action.
SECTION 6.06 Limitation on Suits.
Except to enforce the right to receive payment of principal, interest, premium
or Additional Amounts, if any, when due, a Holder may pursue a remedy with
respect to this Indenture, the Notes, the Guarantees and the Security Documents
only if:
(1) such Holder has previously given the Trustee notice that an Event
of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then
outstanding Notes have requested the Trustee to pursue the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee security or indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of security or indemnity; and
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(5) during such 60-day period, Holders of a majority in aggregate
principal amount of the then outstanding Notes do not give the
Trustee a direction inconsistent with such request;
and, in any case, subject always to the Intercreditor Agreement.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture or the Intercreditor
Agreement, the right of any Holder of a Note to receive payment of principal,
premium, interest and Additional Amounts on the Note, on or after the
respective due dates expressed in the Note and the Indenture (including in
connection with an offer to purchase), or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder; provided that a Holder shall not
have the right to institute any such suit for the enforcement of payment if and
to the extent that the institution or prosecution thereof or the entry of
judgment therein would, under applicable law, result in the surrender,
impairment, waiver or loss of the Lien of this Indenture upon any property
subject to such Lien.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuer and/or any Guarantor for the
whole amount of principal, premium, interest and Additional Amounts remaining
unpaid on, the Notes and the Guarantees, and interest on overdue principal and,
to the extent lawful, interest and Additional Amounts, and such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents and take such actions 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 the Holders of the Notes allowed in any judicial proceedings
relative to the Issuer (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian 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 to the Trustee any amount due to 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 7.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.07 hereof out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties that the Holders may be entitled to receive in such
proceeding whether in liquidation
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or under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 Priorities.
Subject to the Intercreditor Agreement, if the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation,
expenses and liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for
principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Notes for principal, premium, if any and
interest, respectively; and
Third: to the Issuer or to such party as a court of competent jurisdiction
shall direct.
The Trustee may fix a record date and payment date for any payment to Holders
of Notes pursuant to this Section 6.10. At least 15 days before such record
date, the Issuer shall mail to each Holder of a Note and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as a
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in
its discretion may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee will
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, as a prudent
person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
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(1) the duties of the Trustee will be determined solely by the express
provisions of this Indenture and the Trustee need perform only
those duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee will examine
the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) the Trustee will 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 will not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.04 or 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture will require the Trustee or any Note
Security Agent to expend or risk its own funds or incur any liability.
Neither the Trustee nor any Note Security Agent will be under any
obligation to exercise any of its rights and powers under this Indenture
at the request of any Holders, unless such Holder or Holders, as the case
may be, has offered to the Trustee or such Note Security Agent, as
applicable, security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee will not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held
in trust by the Trustee need not be segregated from other funds except to
the extent required by law.
(g) The Paying Agent shall be entitled to the same rights as the Trustee as
specified in Sections 7.01(e), 7.01(f), 7.02, 7.03 and 7.07 of this
Indenture.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee will
not be liable for any action it takes or
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omits to take in good faith in reliance on such Officers' Certificate or
Opinion of Counsel. The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel will be full and
complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and will not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee will not be liable for any action it takes or omits to take
in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company will be sufficient if
signed by an Officer of the Company.
(f) The Trustee will 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 unless such Holders have offered to the Trustee reasonable
indemnity or security against the loss, liabilities and expenses that
might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation into the factor
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, direction order, approval,
bond, debenture, note, other evidence of indebtedness or other paper or
document but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company or any Guarantor, personally or by agent or
attorney at the sole expense of the Company any shall incur no liability
of any kind by reason of such inquiry or investigation.
(h) Except with respect to Section 4.01, the Trustee shall have no duty to
inquire as to the performance of the Issuer or any Guarantor with respect
to the covenants contained in Article 4.
(i) Delivery of reports, information and documents to the Trustee under
Section 4.03 is for informational purposes only and the Trustee's receipt
of the foregoing shall not constitute constructive notice of any
information contained herein or determinable form information contained
therein, including the Company's compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
(j) The Trustee shall not be deemed to have notice of any Default or Event of
Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact a default
is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Notes and this Indenture.
(k) Neither the Trustee nor any clearing house through which the Notes are
traded shall have any obligation or duty to monitor, determine or inquire
as to compliance, and shall not be responsible or liable for compliance,
with restrictions on transfer, exchange, redemption, purchase or
repurchase, as applicable, of minimum denominations imposed
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under this indenture or under applicable law or regulation with respect
of any transfer, exchange, redemption, purchase or repurchase, as
applicable, of any interest in any Note.
(l) If any Guarantor is substituted to make payments on behalf of the Issuer
pursuant to Article 11, the Issuer and the relevant Guarantor shall
promptly notify the Trustee and any clearing house through which the
Notes are traded of such substitution.
(m) 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 each agent, custodian and other Person employed
to act hereunder.
(n) The Trustee may request that the Company deliver any Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered
and not superseded.
(o) The Trustee and the Holders shall be joint creditors for all claims
and/or similar rights arising out of or in connection with this Indenture
and the Trustee shall be entitled to claim and xxx for all amounts due in
connection herewith on behalf of itself and the Holders of the Notes, in
any such case subject to the provisions of this Article 7.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of
the Company with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest (as it
is defined in TIA {section} 310) it must eliminate such conflict within 90 days
or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Section 7.10 hereof.
SECTION 7.04 Trustee's Disclaimer.
The Trustee will not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, the Notes or any Guarantee, it shall
not be accountable for the Company's use of the proceeds from the Notes or any
money paid to the Company or upon the Company's direction under any provision
of this Indenture, it will not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it will not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to
the Trustee, the Trustee will mail to Holders of Notes a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on, any Note, the Trustee may withhold the notice if and so long as a
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committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of the Holders of the Notes.
SECTION 7.06 Reports by Trustee to Holders of the Notes.
(a) Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, and for so long as Notes remain outstanding, the
Trustee will mail to the Holders of the Notes a brief report dated as of
such reporting date that would comply with TIA {section} 313(a) as if
this Indenture were required to be qualified under the TIA (but if no
event described in TIA {section} 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The
Trustee also will comply with TIA {section} 313(b)(2) as if this
Indenture were required to be qualified under the TIA. The Trustee will
also transmit by mail all reports as required by TIA {section} 313(c) as
if this Indenture were required to be qualified under the TIA.
(b) A copy of each report at the time of its mailing to the Holders of Notes
will be mailed by the Trustee to the Company and each stock exchange on
which the Notes are listed in accordance with TIA {section} 313(d) as if
this Indenture were required to be qualified under the TIA. The Company
will promptly notify the Trustee when the Notes are listed on any stock
exchange or any delisting thereof.
SECTION 7.07 Compensation and Indemnity.
(a) The Issuer and each of the Guarantors, jointly and severally, will pay to
the Trustee from time to time reasonable compensation for its acceptance
of this Indenture and services hereunder. The Trustee's compensation
will not be limited by any law on compensation of a trustee of an express
trust. The Company will reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by
it in addition to the compensation for its services. Such expenses will
include the reasonable compensation, disbursements and expenses of the
Trustee's agents, counsel, accountants and experts.
(b) The Issuer and each of the Guarantors, jointly and severally, will
indemnify the Trustee and the Paying Agents and their respective
officers, directors, agents and employees for, and hold harmless each of
them against any and all losses, liabilities or expenses, including
reasonable attorneys fees, incurred by them arising out of or in
connection with the acceptance or administration of the duties of the
Trustee or Paying Agents under this Indenture, including the costs and
expenses of enforcing this Indenture against the Issuer and the
Guarantors (including this Section 7.07) and defending against or
investigating any claim (whether asserted by the Issuer, the Guarantors,
any Holder or any other Person) or liability in connection with the
exercise or performance of any of the rights, powers or duties of the
Trustee or Paying Agents hereunder, except to the extent any such loss,
liability or expense may be attributable to the negligence or bad faith
of the Trustee or Paying Agents, as the case may be. The Trustee or
Paying Agents, as the case may be, will notify the Issuer promptly of any
claim for which they may seek indemnity. Failure by the Trustee or
Paying Agents, as the case may be, to so notify the Issuer will not
relieve the Issuer or any of the Guarantors of their obligations
hereunder. Except in cases where the interest of the Issuer, on the one
hand, and the Trustee or Paying Agent, on the other hand, may be adverse,
the Issuer or such Guarantor will defend the claim and the Trustee or the
Paying Agents will cooperate in the defense. The Trustee or the Paying
Agents, as the case may be, may have separate counsel of
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its choosing from the Issuer and the Issuer will pay the reasonable fees
and expenses of such counsel. Neither the Issuer nor any Guarantor need
pay for any settlement made by the Trustee or Paying Agents without its
consent, which consent will not be unreasonably withheld.
(c) The obligations of the Issuer and the Guarantors under this Section 7.07,
and any liens arising thereunder, will survive the resignation or removal
of the Trustee and/or the satisfaction and discharge of this Indenture.
(d) To secure the Issuer's and the Guarantors' payment obligations in this
Section 7.07, the Trustee and the Paying Agent will have a Lien prior to
the Notes on all money or property held or collected by the Trustee or
the Paying Agents, as the case may be, except that held in trust to pay
principal and interest on particular Notes. Such Lien will survive the
satisfaction and discharge of this Indenture.
(e) When the Trustee or the Paying Agents incur expenses or renders services
after an Event of Default specified in Section 6.01(7) or (11) hereof
occurs, the expenses and the compensation for the services (including the
fees and expenses of its agents and counsel) are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
(a) A resignation or removal of the Trustee and appointment of a successor
Trustee will become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
(b) The Trustee may resign in writing at any time and be discharged from the
trust hereby created by so notifying the Company. The Holders of a
majority in aggregate principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
(c) If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company will promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in aggregate principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
(d) If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of at least 10% in aggregate principal amount of
the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(e) If the Trustee, after written request by any Holder who has been a Holder
for at least six months, fails to comply with Section 7.10 hereof, such
Holder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(f) A successor Trustee will deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon, the resignation
or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice
of its succession to Holders. The retiring Trustee will promptly
transfer all property held by it as Trustee to the successor Trustee;
provided all sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07 hereof. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof will continue for the benefit of
the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act will be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification.
There will at all times be a Trustee hereunder that is a corporation organized
and doing business under the laws of the United States of America or of any
state thereof, or a member state of the European Union or a political
subdivision thereof, that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities or by the authorities of a member state of the European Union
or a political subdivision thereof and that has a combined capital and surplus
of at least $100.0 million (or the equivalent in euros or the currency of a
member state that does not participate in EMU) as set forth in its most recent
published annual report of condition.
This Indenture will always have a Trustee who satisfies the requirements of TIA
{section} 310(a)(5) as if this Indenture were required to be qualified under
the TIA.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuer may at any time, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding Notes and all
obligations of the Guarantors upon compliance with the conditions set forth
below in this Article 8.
SECTION 8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option applicable
to this Section 8.02, the Issuer and each of the Guarantors will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed
to have been discharged from their obligations with
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respect to all outstanding Notes and all obligations of the Guarantors
discharged with respect to their Guarantees on the date the conditions set
forth below are satisfied (hereinafter, "Legal Defeasance"). For this purpose,
Legal Defeasance means that the Issuer and the Guarantors will be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding
Notes and the Guarantees, which will thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in clauses (1) and (2) below, and to have satisfied all
their other obligations under such Notes, the Guarantees and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which will survive until otherwise terminated or discharged hereunder:
(1) the rights of holders of outstanding Notes to receive payments in
respect of the principal of, or interest or premium, if any, on,
such Notes when such payments are due from the trust referred to
below;
(2) the Issuer's obligations with respect to the Notes concerning
issuing temporary Notes, registration of Notes, mutilated,
destroyed, lost or stolen Notes and the maintenance of an office or
agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the Trustee,
and the Issuer's and the Guarantors' obligations in connection
therewith; and
(4) Section 4.22 hereof; and
(5) this Article 8.
Subject to compliance with this Article 8, the Issuer may exercise its option
under this Section 8.02 notwithstanding the prior exercise of its option under
Section 8.03 hereof.
SECTION 8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option applicable
to this Section 8.03, the Issuer and each of the Guarantors will, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from each of their obligations under the covenants contained in
Sections 4.07, through 4.13, 4.15 through 4.19 and 4.21 hereof and clause (4)
of Section 5.01(a) hereof with respect to the outstanding Notes on and after
the date the conditions set forth in Section 8.04 hereof are satisfied
(hereinafter, "Covenant Defeasance"), and the Notes will thereafter be deemed
not "outstanding" for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but will continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes will not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes and Guarantees,
the Issuer and the Guarantors may omit to comply with and will have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply will not constitute a Default or an Event of Default in respect of the
Notes under Section 6.01 hereof, but, except as specified above, the remainder
of this Indenture, the Notes, the Guarantees and the Security Documents will be
unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section
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8.04 hereof, Sections 6.01(3) through 6.01(8) hereof will not constitute Events
of Default with respect to the Notes.
SECTION 8.04 Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance under
either Section 8.02 or 8.03 hereof:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for
the benefit of the holders, cash in euro or euro-denominated
non-callable Government Securities, or combination thereof in such
amounts as will be sufficient, in the opinion of an internationally
recognized firm of independent public accountants, for the payment
of principal, interest and premium, if any, on the Notes to
redemption or maturity, as the case may be, and must comply with
certain other conditions, including delivery to the Trustee of:
(A) an Opinion of Counsel to the effect that holders 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 and in the same manner and at
the same times as would have been the case if such
deposit and defeasance had not incurred (and, in the
case of Legal Defeasance only, such Opinion of Counsel
must be based on a ruling of the Internal Revenue
Service or other change in applicable U.S. federal
income tax law since the date of this Indenture); and
(B) an Opinion of Counsel in the jurisdiction of
organization of the Issuer to the effect that the
holders will not recognize income, gain or loss for
income tax purposes of such jurisdiction as a result of
such deposit and defeasance and will be subject to
income tax in such jurisdiction on the same amounts and
in the same manner and at the same times as would have
been the case if such deposit and defeasance had not
occurred;
(2) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such
deposit);
(3) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the
Issuer, the Company or any of its Restricted Subsidiaries is a
party or by which the Issuer, the Company or any of its Restricted
Subsidiaries is bound;
(4) the Issuer must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuer with the intent
of preferring the Holders of Notes over the other creditors of the
Issuer or the Company with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuer, the Company or
others; and
(5) the Issuer must deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
relating to the Legal Defeasance or the Covenant Defeasance have
been complied with.
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SECTION 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and non-callable Government
Securities (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
will be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Issuer and the Company will pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of the
outstanding Notes.
Notwithstanding anything in this Article 8 to the contrary, the Trustee will
deliver or pay to the Issuer from time to time upon the request of the Issuer
any money or non-callable Government Securities held by it as provided in
Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(1) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06 Repayment to Issuer.
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, or
interest on, any Note and remaining unclaimed for two years after such
principal, premium, interest or Additional Amounts has become due and payable
shall be paid to the Issuer on its request or (if then held by the Issuer) will
be discharged from such trust; and the Holder of such Note will thereafter be
permitted to 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, will thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer cause to be published
once, in the Financial Times and The Wall Street Journal (national edition),
notice that such money remains unclaimed and that, after a date specified
therein, which will not be less than 30 days from the date of such notification
or publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.
SECTION 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any euros or non-callable
Government Securities in accordance with Section 8.02 or 8.03 hereof, 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 and the Guarantors' obligations under this Indenture, the
Notes, the Guarantees and the Security Documents will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until
such time as
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the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that,
if the Issuer makes any payment of principal of, premium, if any, or interest
on, any Note following the reinstatement of its obligations, the Issuer will be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the Issuer, the Guarantors and
the Trustee may amend or supplement this Indenture, the Notes, the Guarantees,
the Security Documents, the Intercreditor Agreement, the Security Trust Deed
and/or the Convertible Trust Deed (to the extent the Trustee would be consulted
under the Convertible Trust Deed) without the consent of any Holder of Notes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Issuer's or a Guarantor's
obligations to Holders of Notes and Guarantees in the case of a
merger or consolidation or sale of all or substantially all of the
Issuer's or such Guarantor's assets, as applicable;
(4) to make any change that would provide any additional rights or
benefits to the Holders of Notes or that does not adversely affect
the legal rights under this Indenture of any such holder;
(5) to conform the text of this Indenture, the Guarantees, the Share
Pledges, the Funding Loan Pledge, the Notes or the Intercreditor
Agreement to any provision of the "Description of the Notes" or the
"Description of Other Financing Arrangements" sections of the
Issuer's Offering Circular dated January 27, 2004, relating to the
initial offering of the Notes, to the extent that such provision in
that "Description of the Notes" or the "Description of Other
Financing Arrangements" was intended to be a verbatim recitation of
a provision of this Indenture, the Guarantees, the Share Pledges,
the Funding Loan Pledge or the Notes;
(6) to provide for the issuance of Additional Notes in accordance with
the limitations set forth in this Indenture as of the date hereof;
(7) to evidence and provide for the acceptance and appointment of a
successor trustee;
(8) to add additional Guarantees with respect to the Notes or to
release Subsidiary Guarantors from Subsidiary Guarantees as
provided by the terms of this Indenture;
(9) to further secure the Notes, to release all or any portion of the
collateral pursuant to the terms of the Security Documents, to add
to the covenants of the Company or any of its Subsidiaries for the
benefit of the holders of the Notes or to surrender any right or
power conferred upon the Company or any of its Subsidiaries;
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(10) to allow any Guarantor to execute a supplemental indenture and/or a
Guarantee with respect to the Notes; or
(11) to enter into an Intercreditor Agreement to (A) subordinate the
Guarantees of any Guarantors to Designated Senior Indebtedness of
such Guarantor permitted to be incurred under this Indenture after
the date of this Indenture on substantially equivalent terms to
those on which the Guarantees are subordinated to Indebtedness
under the Senior Facilities pursuant to the Original Intercreditor
Agreement (as in effect on the date of this Indenture) and/or (B)
to make the Lien created pursuant to the Security Documents (other
than the Funding Loan Pledge) junior to the pledges in favor of any
holder of Designated Senior Indebtedness permitted to be incurred
under this Indenture after the date of this Indenture on
substantially equivalent terms to those on which the Share Pledges
are junior to the pledges over such shares in favor of the lenders
under the Senior Facilities pursuant to the Original Intercreditor
Agreement (as in effect on the Issue Date) and/or (C) to
subordinate any Guarantees relating to Additional Notes and
Security Documents relating to Additional Notes subject to
substantially equivalent terms (including the same remedy bar in
favor of holders of Designated Senior Indebtedness) to those
relating to the outstanding Guarantees and Security Documents
pursuant to the Original Intercreditor Agreement (as in effect on
the Issue Date); provided that, in the case of clauses (A) and (B),
any such Intercreditor Agreement provides that either (i) the final
Stated Maturity of the Designated Senior Indebtedness that benefits
from the subordination of the Guarantees or the second-ranking
Share Pledges pursuant to such Intercreditor Agreement is prior to
the final Stated Maturity of the Notes or (ii) such Intercreditor
Agreement permits payments to be made to the Issuer to fund the
repayment of the Notes at the Stated Maturity thereof.
Upon the request of the Issuer accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee will join with the Issuer and the Guarantors
in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee will
not be obligated to enter into such amended or supplemental indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02 and the next two paragraphs, the
Issuer and the Trustee may amend or supplement this Indenture (including,
without limitation, Section 3.09, 4.10 and 4.15 hereof), the Notes, the
Guarantees, the Security Documents, the Intercreditor Agreement, the Security
Trust Deed and/or the Convertible Trust Deed (to the extent the Trustee would
be consulted under the Convertible Trust Deed) with the consent of the Holders
of at least a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on, the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture, the Notes, the Guarantees, the Security
Documents, the Intercreditor Agreement, the Security Trust Deed and/or the
Convertible Trust Deed (to the extent the Trustee would be consulted under the
Convertible
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Trust Deed) may be waived with the consent of the Holders of a majority in
aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes).
Without the consent of at least 75% in aggregate principal amount of the Notes
then outstanding (including consents obtained in connection with a tender offer
or exchange offer for, or purchase of, such Notes), no waiver or amendment to
this Indenture may make any change in the provisions of Section 11.02, the
Intercreditor Agreement or the Security Documents that adversely affects the
rights of any Holder of Notes.
Without the consent of each Holder affected, an amendment, supplement or waiver
under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose holders must consent to
an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any note or
alter the provisions with respect to the redemption of the Notes
(except as provided above with respect to Sections 3.09, 4.10 and
4.15 hereof);
(3) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(4) waive a Default or Event of Default in the payment of principal,
interest, premium or Additional Amounts on the Notes (except a
rescission of acceleration of the Notes by the holders of at least
a majority in aggregate principal amount of the then outstanding
Notes and a waiver of the payment default that resulted from such
acceleration);
(5) make any Note payable in money other than that stated in the Notes;
(6) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal, interest, premium or Additional
Amounts on the Notes;
(7) waive a redemption payment with respect to any Note (except as
provided above with respect to Sections 3.09, 4.10 and 4.15
hereof);
(8) release any Guarantor from any of its obligations under its
Guarantee or this Indenture that, in any such case, would adversely
affect the holders of the Notes except in accordance with the terms
of this Indenture;
(9) release the security interest granted in favor of the holders of
the Notes in any Security Document other than pursuant to the terms
of the Intercreditor Agreement, the Share Pledges or the Funding
Loan Pledge or as otherwise permitted by this Indenture; or
(10) make any change in the preceding amendment and waiver provisions.
Upon the request of the Company accompanied by a resolution of its Board of
Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes
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as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee will join with the Issuer and the Guarantors
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture directly affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but will not be obligated to, enter into such amended or
supplemental Indenture.
It will not be necessary for the consent of the Holders of Notes under this
Section 9.02 to approve the particular form of any proposed amendment,
supplemental or waiver, but it is sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Issuer will mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuer to mail such notice, or any defect therein, will not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
SECTION 9.03 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by
a Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt
as the consenting Holder's Note, even if notation of the consent is not made on
any Note. However, any such Holder of a Note or subsequent Holder of a Note
may revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.04 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Issuer in exchange for all
Notes may issue and the Trustee shall, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note will not affect
the validity and effect of such amendment, supplement or waiver.
SECTION 9.05 Trustee to Sign Amendments, etc.
The Trustee will sign any amended or supplemental indenture authorized pursuant
to this Article 9 if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Issuer and each
Guarantor may not sign an amended or supplemental indenture until the Board of
Directors of the Issuer or such Guarantor approves it. In executing any
amended or supplemental indenture, the Trustee will be entitled to receive and
(subject to Section 7.01 hereof) will be fully protected in relying upon, in
addition to the documents required by Section 12.04 hereof, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this Indenture.
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ARTICLE 10
COLLATERAL AND SECURITY
SECTION 10.01 Security Documents.
(a) The due and punctual payment of the principal, premium, interest and
Additional Amounts on the Notes and the Guarantees when and as the same
shall be due and payable, whether on a Regular Interest Payment Date, at
maturity, by acceleration, repurchase, redemption or otherwise, and
interest on the overdue principal, premium, interest and Additional
Amounts, if any, on the Notes and the Guarantees and performance of all
other obligations of the Issuer and the Guarantors to the Holders of
Notes or the Trustee under this Indenture, the Notes and the Guarantees,
according to the terms hereunder or thereunder, are secured as provided
in the Security Documents, the Intercreditor Agreement and the Security
Trust Agreement.
(b) The security created by the Security Documents (other than the Funding
Loan Pledge) is subject to the Intercreditor Agreement.
(c) Each Holder of Notes, by its acceptance thereof, consents and agrees to
the terms of the Security Documents, the Security Trust Agreement and the
Intercreditor Agreement (including, without limitation, the provisions
providing for foreclosure and release of the Share Pledges) as the same
may be in effect or may be amended from time to time in accordance with
their terms and authorizes and directs the Trustee and/or the Security
Agent and/or any Note Security Agent to enter into the Security
Documents, the Security Trust Agreement and the Intercreditor Agreement
and to perform its respective obligations and exercise its respective
rights thereunder in accordance therewith.
(d) The Issuer will do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the
Security Documents, to assure and confirm to the Trustee and/or the
Security Agent and/or any Note Security Agent that it holds, for the
benefit of the Holders, duly created, enforceable and perfected Liens as
contemplated hereby, by the Security Documents, the Security Trust
Agreement and the Intercreditor Agreement or any part thereof, as from
time to time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Notes and Guarantees
secured hereby, according to the intent and purposes herein expressed.
The Issuer and the Guarantors will each take, and will cause their
Subsidiaries to take, upon request of the Trustee and/or the Security
Agent and/or any Note Security Agent, any and all actions reasonably
required to cause the Security Documents to create and maintain, as
security for the Obligations of the Issuer and the Guarantors hereunder,
a valid and enforceable perfected first priority Lien, as to the Funding
Loan Pledge, or second priority Lien, as to the Share Pledges, in and on
the relevant pledged assets in favor of the Trustee and/or the Security
Agent and/or any Note Security Agent for the benefit of the Holders of
Notes, superior to and prior to the rights of all third Persons (except,
with respect to the Share Pledges, the holders of Senior Indebtedness)
and subject to no other Liens other than Permitted Liens.
SECTION 10.02 Release of Collateral.
(a) Subject to subsections (b) through (d) of this Section 10.02, the assets
subject to the Security Documents may be released from the Lien and
security interest created by the
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Security Documents at any time or from time to time in accordance with
the provisions of this Indenture, the Security Documents and the
Intercreditor Agreement.
(b) In addition:
(1) with respect to the relevant shares, in connection with an Asset
Sale of Equity Interests subject to a Share Pledge; provided that
the Company has complied with Section 4.10;
(2) with respect to the relevant shares, in connection with a merger,
consolidation or sale of all or substantially all of the assets of
a Subsidiary Guarantor; provide such merger, consolidation complies
with Section 5.01;
(3) with respect to any collateral, upon Legal Defeasance under Section
8.02 or satisfaction and discharge of the Notes under Section
12.01; and
(4) with respect to the relevant shares, in connection with the sale of
all the shares of a Subsidiary Guarantor or an entity which owns
such shares pursuant to an Enforcement Action by the security agent
in respect of any Designated Senior Indebtedness; provided that the
applicable requirements set forth in the Intercreditor Agreement
are complied with,
if, in the case of clause (4) the proceeds are applied in accordance with
the Intercreditor Agreement, then the Trustee shall: (i) in the case of
clause (2), upon such Legal Defeasance or satisfaction and discharge and
(ii) in the case of clauses (1), (3) and (4), concurrently upon receiving
written confirmation from the Company, together with Officer's
Certificates and Opinions of Counsel in form and substance reasonably
satisfactory to the Trustee, that the provisions of such clause have been
or will be complied with, release the Liens on the relevant collateral
pursuant to this Indenture and the Security Documents, provided that, in
the case of clauses (1), (3) and (4), the Trustee shall not release its
Lien over the proceeds of the sale of the asset sold.
(c) Save pursuant to 6.4(b)(ii) or 6.4(c) of the Intercreditor Agreement, at
any time when a Default or Event of Default has occurred and is
continuing, no release of pledged assets pursuant to the provisions of
the Security Documents will be effective as against the Holders of Notes.
(d) The release of any pledged assets from the terms of this Indenture and
the Security Documents will not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the
extent such assets are released pursuant to the terms hereof and of the
Security Documents.
SECTION 10.03 Certificates of the Trustee.
In the event that the Issuer wishes to release pledged assets in accordance
with this Indenture, the Security Documents and the Intercreditor Agreement and
has delivered the certificates and documents required by the Security Documents
and an Officers' Certificate containing the information required by TIA
{section}314(d), the Trustee will deliver a certificate to the Note Security
Agent setting forth such determination and that the specified release complies
with the terms hereof and of the Intercreditor Agreement.
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SECTION 10.04 Authorization of Actions to Be Taken by the Trustee Under the
Security Documents.
(a) Notwithstanding any provision of this Indenture to the contrary, prior to
the Senior Discharge Date or for so long as required by any Intercreditor
Agreement, the Trustee may only take Enforcement Action under the Share
Pledges at the direction of the Holders representing more than 50.0% in
principal amount of all outstanding Notes and under any Security Document
as otherwise permitted by the Intercreditor Agreement.
(b) Subject to the foregoing and to the provisions of Section 7.01 and 7.02
hereof, the Trustee may, in its sole discretion and without the consent
of the Holders of Notes, take (and direct the Security Agent to take) and
shall take (at the direction of the Holders) all actions it deems
necessary or appropriate in order to:
(1) enforce any of the terms of the Security Documents or the
Intercreditor Agreement; and
(2) collect and receive any and all amounts payable in respect of the
Obligations of the Issuer or any Guarantor hereunder and distribute
such amounts in accordance with the Intercreditor Agreement and
herewith.
(c) The Trustee will have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the
pledged assets by any acts that may be unlawful or in violation of the
Security Documents, the Intercreditor Agreement or this Indenture, and
such suits and proceedings as the Trustee may deem expedient to preserve
or protect its interests and the interests of the Holders of Notes in the
pledged assets (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of
Notes or of the Trustee).
SECTION 10.05 Authorization of Receipt of Funds by the Trustee Under the
Security Documents.
The Trustee is authorized to receive any funds for the benefit of the Holders
of Notes distributed under the Security Documents or the Intercreditor
Agreement, and to make further distributions of such funds to the Holders of
Notes according to the provisions of this Indenture and the Intercreditor
Agreement.
SECTION 10.06 Termination of Security Interest.
Upon the full and final payment and performance of all Obligations of the
Issuer and the Guarantors under this Indenture, the Notes and the Guarantees,
the Trustee will release the Liens pursuant to this Indenture and the Security
Documents.
SECTION 10.07 Appointment of Security Agent
(a) The Issuer hereby appoints The Bank of New York to act as Security Agent
hereunder. The Bank of New York accepts such appointment and is directed
and instructed to enter into the Security Trust Agreement and to appoint
a further agent as security trustee
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under the Security Trust Agreement. The Security Agent and such further
security trustee shall have such duties and responsibilities as are
explicitly set forth herein and in the Security Documents to which it is
a party, the Intercreditor Agreement and the Security Trust Agreement and
no others; provided that the Security Agent and such further security
trustee shall only take action with respect to or under the Security
Documents, the Intercreditor Agreement and the Security Trust Agreement
in accordance with the written instructions of the Trustee acting on
behalf of the Holders of the Notes, and shall apply any proceeds from the
enforcement of any security, as set forth herein and in the Intercreditor
Agreement. The provisions of Article 7 hereof relating to the Trustee
acting in such capacity shall apply to the Security Agent and such
further security trustee acting in such capacity mutatis mutandis, to the
extent applicable. In addition, the Issuer and the Guarantors hereby,
jointly and severally, agree to indemnify the Security Agent on the same
basis as their indemnity to the Trustee in Article 7 with respect to
actions taken or not taken by it in accordance with this Indenture, the
Security Documents to which it is a party and the Intercreditor
Agreement.
(b) The parties hereto acknowledge and agree, and each Holder by accepting a
Note acknowledges and agrees, that the Company has appointed The Bank of
New York to act as security agent for the Convertible Bonds.
ARTICLE 11
GUARANTEES
SECTION 11.01 Guarantee.
(a) Subject to this Article 11, each of the Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability
of this Indenture, the Notes or the obligations of the Issuer hereunder
or thereunder, that:
(1) the principal, interest, premium and Additional Amounts, if any, on
the Notes will be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal, interest, premium and Additional Amounts, if
any, on the Notes, and all other Obligations of the Issuer to the
Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the terms hereof
and thereof; and
(2) in case of any extension of time of payment or renewal of any Notes
or any of such other obligations, that same will be promptly paid
in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration
or otherwise.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors will be jointly and
severally obligated to pay the same immediately upon maturity of the
Guarantees in accordance with Section 11.02(b) hereof. Each Guarantor
agrees that this is a guarantee of payment and not a guarantee of
collection.
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(b) Prior to the repayment in full in cash or Cash Equivalents of all
Obligations in respect of Senior Indebtedness, no Subsidiary Guarantee
will mature (and no amount will become due or payable thereunder) until:
(1) a Default under Sections 6.01(1) or (2) hereof occurs and is
continuing; and
(2) either:
(1) 179 days has elapsed since the date of any Default occurring
on or prior to such payment Default referred to in clause
(1); or
(2) if earlier, (A) an Insolvency Event in respect of the
relevant Subsidiary Guarantor has occurred, (B) a Senior
Declared Default has occurred and is continuing, or (C) the
applicable lenders have taken any Enforcement Action in
respect of any Senior Indebtedness of the relevant Subsidiary
Guarantor.
This clause (b) shall not apply to claims under any Subsidiary Guarantee
in respect of fees, expenses and other amounts payable to the Trustee,
the Security Agent or any Note Security Agent hereunder or under the
Security Documents.
Each Subsidiary Guarantor will notify the Trustee in writing upon
maturity of its Guarantee.
For the avoidance of doubt, the parties hereto agree and acknowledge that
the foregoing clause (b) shall not apply to claims under any Subsidiary
Guarantee in respect of fees, expenses and other amounts payable to the
Trustee or the Security Agent hereunder or under the Security Documents,
the Intercreditor Agreement or the Security Trust Agreement.
(c) The Guarantors hereby agree that their obligations hereunder are
unconditional, irrespective of the validity, regularity or enforceability
of the Notes or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder of the Notes with respect to
any provisions hereof or thereof, the recovery of any judgment against
the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest, notice and all demands
whatsoever and covenant that this Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and
this Indenture.
(d) If any Holder, the Trustee, the Security Agent or any Note Security Agent
is required by any court or otherwise to return to the Issuer, the
Guarantors or any custodian, trustee, liquidator or other similar
official acting in relation to either the Issuer or the Guarantors, any
amount paid either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, will be reinstated in full force and
effect.
(e) Each Guarantor agrees that it will not be entitled to any right of
subrogation or contribution in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor further agrees
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that, as between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (1) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 hereof for
the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such
obligations (whether or not due and payable) will forthwith become due
and payable by the Guarantors for the purpose of this Guarantee.
SECTION 11.02 Subordination of Guarantees.
(a) Agreement to Subordinate.
The Company and each other Guarantor agrees, and the Trustee agrees, that
the Guarantees are and shall be and remain subordinated in right of
payment, to the extent and in the manner provided in this Section 11.02,
to the prior payment in full in cash or Cash Equivalents of all Senior
Indebtedness of the Company or the relevant Guarantor, and that such
subordination is for the benefit of and enforceable by the holders of
such Senior Indebtedness or Designated Senior Indebtedness (as specified
herein).
Notwithstanding any other provision hereof, this Section 11.02 shall not
apply to claims under any Guarantee in respect of fees, expenses and
other amounts payable to the Trustee, the Security Agent or the Note
Security Agent hereunder or under the Security Documents, the
Intercreditor Agreement or the Security Trust Agreement which fees,
expenses and other amounts shall not be subordinated in right of payments
to Senior Indebtedness.
(b) Liquidation, Dissolution, Bankruptcy.
Upon the occurrence of an Insolvency Event in relation to the Company or
any other Guarantor:
(1) holders of Senior Indebtedness of the Company or such Guarantor, as
applicable, shall be entitled to receive payment in full in cash or
Cash Equivalents of such Senior Indebtedness before the Trustee or
the Holders of Notes shall be entitled to receive any payment under
or in respect of the Guarantees;
(2) until the Senior Discharge Date, any payment or distribution to
which the Trustee or the Holders of Notes would be entitled but for
this Section 11.02 shall be made to holders of such Senior
Indebtedness as their interests may appear, except that the Trustee
or the Holders of Notes may receive (i) Permitted Junior Securities
and (ii) distributions from defeasance trusts established under
Article 8 in accordance with its terms and funded in compliance
with the Senior Credit Agreements (or, following the Senior
Discharge Date, the agreement(s) governing any other Designated
Senior Indebtedness); and
(3) if a distribution is made to the Trustee or the Holders of Notes
that, due to the subordination provisions set forth in this Section
11.02, should not have been made to them, the Trustee (to the
extent in its possession) or the Holders of Notes is or are
required to hold it in trust for the holders of Senior Indebtedness
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of the Company or the Guarantor and to pay it over to them as their
interests may appear.
Notwithstanding any other provision hereof, this Section 11.02 shall not
apply to claims under any Guarantee in respect of fees, expenses and
other amounts payable to the Trustee, the Security Agent or the Note
Security Agent hereunder or under the Security Documents, the
Intercreditor Agreement or the Security Trust Agreement which fees,
expenses and other amounts shall not be subordinated in right of payments
to Senior Indebtedness.
(c) Exercise of Rights.
Until the Senior Discharge Date, upon the occurrence of an Insolvency
Event in relation to any Guarantor, the Senior Security Agent is
irrevocably authorized by the Trustee and the Holders of Notes, and by
the Company and the other Guarantors, on their behalf to:
(1) demand, claim, enforce and prove for;
(2) file claims and proofs, give receipts and take all proceedings and
do all things which the Senior Security Agent considers reasonably
necessary to recover; and
(3) receive distributions of any kind whatsoever in respect or on
account of,
the Indebtedness due from that Guarantor in respect of its Guarantee.
(d) Distributions.
Upon the occurrence of an Insolvency Event in relation to a Guarantor,
the trustee in bankruptcy, liquidator, assignee or other person
distributing the assets of that Guarantor or their proceeds shall be
directed by the Trustee, the Holders of Notes and the relevant Guarantor
(as the case may be) to pay distributions of any kind in relation to such
Guarantor's Obligations under this Indenture and its Guarantee directly
to the Senior Security Agent until the Senior Indebtedness has been paid
in full in cash or Cash Equivalents. Notwithstanding the foregoing, the
Trustee and the Holders of Notes may receive (i) Permitted Junior
Securities and (ii) distributions from defeasance trusts established
under Article 8 in accordance with its terms and funded in compliance
with the Senior Credit Agreements (or, following the Senior Discharge
Date, the agreement(s) governing any other Designated Senior
Indebtedness).
(e) Limitations on Payment.
Payments by the Guarantors will be permitted except as set forth in this
Section 11.02(e).
Prior to the Final Discharge Date, no payments may be made on or in
respect of the Guarantees without the prior written consent of the
Majority Senior Lenders:
(1) if a Senior Payment Default with respect to any Senior Indebtedness
of the relevant Guarantor has occurred, and for so long as such
Senior Payment Default is continuing; or
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(2) if a Senior Default (other than a Senior Payment Default) with
respect to any Designated Senior Indebtedness of the relevant
Guarantor has occurred and is continuing and the Trustee has
received a notice from the relevant agent under any such Designated
Senior Indebtedness specifying the relevant Senior Default and that
permitted payments under the relevant Guarantee are suspended
(each, a "Payment Blockage Notice") until the earliest of:
(A) the date falling 179 days after the date of receipt by
the Trustee of the Payment Blockage Notice;
(B) the date on which the relevant Senior Default is cured,
waived or otherwise no longer continuing;
(C) the date on which the relevant agent cancels the
Payment Blockage Notice delivered by it (provided that
no such cancellation shall be made without the prior
written consent of any agent under any such Designated
Senior Indebtedness who would, but for the issue of
that Payment Blockage Notice, have been entitled to
deliver a Payment Blockage Notice to the Trustees
during the term of such delivered Payment Blockage
Notice); and
(D) the payment in full in cash or Cash Equivalents of the
relevant Designated Senior Indebtedness.
Only one Payment Blockage Notice may be served by the holders of all
Designated Senior Indebtedness in any period of 360 consecutive days.
(f) Notwithstanding Section 11.02(e), (i) a Guarantor's obligations to make
any payments under a Guarantee that are not permitted to be paid under
Section 11.02(e) shall continue notwithstanding any payment suspension
pursuant to such clause and (ii) default interest and/or the
capitalization of interest shall continue to accrue in accordance with
the Indenture. Section 11.02(e) acts to suspend payments, and not to
waive the rights of the Holders of Notes to receive payments under the
Guarantees when the suspension period has lapsed and otherwise in
accordance with the terms of this Indenture.
(g) Section 11.02(e) shall not prohibit the Trustee or the Holders of Notes
from receiving (i) Permitted Junior Securities and (ii) distributions
from defeasance trusts established under Article 8 in accordance with its
terms and funded in compliance with the Senior Credit Agreements (or,
following the Senior Discharge Date, the agreement(s) governing any
Designated Senior Indebtedness).
(h) If a payment or distribution is made to the Trustee or the holders of the
Notes that should not have been made to them, the Trustee (to the extent
in its possession) or the holders of the Notes is or are required to hold
it in trust for the holders of Senior Indebtedness and to distribute such
payment or distribution in accordance with the Intercreditor Agreement
and herewith.
(i) With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only those obligations on the part of the Trustee
as are specifically set forth in this Article 11, and no implied
covenants or obligations with respect to the holders of Senior
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Indebtedness will be read into this Indenture against the Trustee. The
Trustee will not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness, and will not be liable to any such holders if the
Trustee pays over or distributes to or on behalf of Holders or any
Guarantor or any other Person money or assets to which any holders of
Senior Indebtedness are then entitled by virtue of this Article 11,
except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
(j) After all Senior Indebtedness is paid in full and until the Notes are
paid in full, Holders of Notes will be subrogated (equally and ratably
with all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Indebtedness to receive distributions applicable to
Senior Indebtedness to the extent that distributions otherwise payable to
the Holders of Notes have been applied to the payment of Senior
Indebtedness. A distribution made under this Article 11 to holders of
Senior Indebtedness that otherwise would have been made to Holders of
Notes is not, as between the Guarantors and Holders, a payment by the
Guarantors on the Notes.
(k) This Article 11 defines the relative rights of Holders of Notes and
holders of Senior Indebtedness. Nothing in this Indenture will:
(1) impair, as between the Guarantors and Holders of Notes, the
obligation of the Guarantors, which is absolute and unconditional,
to pay principal, premium, interest and Additional Amounts on the
Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and creditors of the
Guarantors other than their rights in relation to holders of Senior
Indebtedness; or
(3) prevent the Trustee or any Holder of Notes from exercising its
available remedies upon a Default or Event of Default, subject to
the rights of holders and owners of Senior Indebtedness to receive
distributions and payments otherwise payable to Holders of Notes
and subject to restrictions contained in any Intercreditor
Agreement.
If the Guarantors fail because of this Article 11 to pay principal of,
premium, interest, or Additional Amounts on a Note on the due date, the
failure is still a Default or Event of Default.
(l) Each Holder of Notes, by the Holder's acceptance thereof, authorizes and
directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in
this Article 11, and appoints the Trustee to act as such Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not
file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the holders of Senior
Indebtedness are hereby authorized to file an appropriate claim for and
on behalf of the Holders of the Notes.
(m) Intercreditor Agreement and Security Trust Agreement
In addition to the foregoing, the Guarantees are subject to the
Intercreditor Agreement and the Security Trust Agreement.
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The Trustee, acting for itself and on behalf of the Holders, and each
Holder by its acceptance of Notes, acknowledges and agrees to the terms
of the Intercreditor Agreement and the Security Trust Agreement, as
applicable.
SECTION 11.03 Limitation on Guarantor Liability.
(a) General. Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the
Guarantee of such Guarantor not constitute a fraudulent transfer, a
fraudulent conveyance, a transaction at under value for purposes of
Bankruptcy Law or any similar law or a transaction void under any
applicable law, in each case to the extent applicable to any Guarantee.
To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantors hereby irrevocably agree that the obligations of such
Guarantor will be limited to the maximum amount that will, after giving
effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor
in respect of the obligations of such other Guarantor under this Article
11, result in the obligations of such Guarantor under its Guarantee not
constituting either a fraudulent transfer, fraudulent conveyance or
transaction at under value or a transaction void under any applicable
law.
(b) Limitations for German Subsidiary Guarantors.
Each Holder, by its acceptance of Notes, agrees that the enforcement of
any Subsidiary Guarantees given pursuant to this Article 11 by a German
Subsidiary Guarantor, and any security provided by a German Subsidiary
Guarantor pursuant to the Security Documents, other than in respect of
Funds made available to such Subsidiary Guarantor or to a Subsidiary of
such Subsidiary Guarantor by the Issuer from the proceeds of the Notes,
shall be limited, in relation to any Subsidiary Guarantor which is a
German limited liability company (Gesellschaft mit beschr{a"}nkter
Haftung - GmbH) (a "German Subsidiary Guarantor"), to the extent that
payment under that Subsidiary Guarantee, or the enforcement of such
security, would cause the higher of (i) the German Subsidiary Guarantor's
net assets (including, for the avoidance of doubt, the amount
corresponding to such German Subsidiary Guarantor's registered share
capital (Stammkapital)) at December 31, 2003 minus 10% (the "Base Net
Assets") and (ii) the German Subsidiary Guarantor's net assets
(including, for the avoidance of doubt, the amount corresponding to such
German Subsidiary Guarantor's Stammkapital) as per the end of the
calendar month preceding the date of enforcement of this Guarantee or of
such security (the "Current Net Assets") to fall below its Stammkapital;
provided that for the purposes of the calculation of the Base Net Assets
and the Current Net Assets the following balance sheet items shall be
adjusted as follows:
(1) the amount of any increase of the Stammkapital of the relevant
German Subsidiary Guarantor after the Issue Date shall be deducted
from the relevant Stammkapital;
(2) Indebtedness incurred by the relevant German Subsidiary Guarantor
(or to any direct or indirect Subsidiary of such German Subsidiary
Guarantor) and provided by the Company or any of its Subsidiaries
shall be disregarded if and to the extent such Indebtedness has
been provided from funds made available to a German Subsidiary
Guarantor in connection with the terms of this Indenture or
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the Notes, or are subordinated, or are considered subordinated
pursuant to Sec. 32a GmbHG; and
(3) Indebtedness and other liabilities incurred in violation of the
provisions of this Indenture shall be disregarded,
and; provided further that the relevant German Subsidiary Guarantor shall
for the purposes of the determination of the Base Net Assets and the
Current Net Assets dispose of all assets where the relevant assets are
shown in the balance sheet of the German Subsidiary Guarantor with a book
value (Buchwert) which is significantly lower than the market value of
such assets. The above limitations shall not apply if following
notification by the Trustee of claims raised under the Guarantee pursuant
to this Article 11, or of the enforcement of security by the Trustee, the
relevant German Subsidiary Guarantor does not provide conclusive
evidence, including in particular interim financial statements up to the
end of the last completed calendar month (which shall be audited if
reasonably requested by the Trustee), within twenty five (25) days after
the date of such notification, or if after receipt of such unaudited
statements notification is given to the relevant German Subsidiary
Guarantor to provide audited financial statements up to the end of that
same calendar month and such audited financial statements are not
provided within fifty (50) days after the date of such notification.
(c) Limitations for Austrian Guarantors.
(1) Each Guarantor established in Austria ("Austrian Guarantor")
acknowledges that:
(1) it will receive valuable direct or indirect benefits as a
result of the funds made available in connection with this
Indenture;
(2) the Issuer shall pay to each Austrian Guarantor an adequate
and arm's length annual fee for granting the guarantee under
this Article 11;
(3) the Trustee has acted in good faith in connection with the
Guarantee given by that Austrian Guarantor and the
transactions contemplated by the Indenture and the Notes; and
(4) it has not incurred and does not intend to incur debts,
including contingent liabilities beyond its ability to pay as
they mature.
(2) Notwithstanding anything to the contrary contained herein or in the
Notes or the Guarantees the liability of each Austrian Guarantor:
(1) shall be limited to funds applied by the Issuer for the
valuable direct or indirect benefits of the Austrian
Guarantors; and
(2) shall be limited to an amount of:
(A) the Future Additional Net Asset Value of that Austrian
Guarantor; plus, if applicable,
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(B) the equivalent in Euro of the proceeds of the Notes
received by the Issuer (plus accrued interest
commission and fee thereon) which are on-lent to the
respective Austrian Guarantor.
(3) For the purposes of this Section 11.03(c) "Future Additional Net
Asset Value" means the future increase of the value of the balance
sheet positions "Eigenkapital" (as defined under the provisions of
Austrian accounting laws, currently Art. 224 sec. 3 lit A Austrian
Commercial Code) as of the date of the execution of this Indenture
(the "Reference Net Asset Value") as opposed to the value of this
balance sheet position on the day of the payment demand under the
Guarantee pursuant to this Article 11. An interim financial
statement of that Austrian Guarantor established upon the date of
the execution of this Indenture and certified by the statutory
auditors of that Austrian Guarantor shall be prima facie evidence
as to the amount of the Reference Net Asset Value.
(4) Each Austrian Guarantor shall procure to record its potential
obligation under its Guarantee pursuant to this Article 11 in its
financial statements to be established after the execution of this
Indenture pursuant to Art. 199 Austrian Commercial Code.
(5) Each Austrian Guarantor agrees that the benefit of this Guarantee
shall be transferred and shall remain in full legal effect when a
Holder seeks to transfer its rights and obligations under this
Indenture to another Person.
(d) Limitations for French Guarantors.
(1) Each Guarantor organized under the laws of France (a "French
Guarantor") acknowledges that:
(1) it has not incurred and does not intend to incur debts,
including contingent liabilities beyond its ability to pay as
they mature;
(2) the guarantee and indemnity has been authorized by the
assembly of the shareholders before the contract had been
signed as defined in articles L 227-9 and L 227-10 of the
French Commercial Code if such an authorization is necessary
according to article L 225-38 and article L 223-19 French
Commercial Code.
(2) The liability of each French Guarantor under this Section 11 shall
not include any obligation which does not present an economic,
social or financial interest for the entire group, (B) shall be
limited to funds applied by the Issuer for the valuable direct or
indirect benefits of the French Guarantors; (C) shall not include
any obligation which is contrary to the statutory object of the
French Guarantor, (D) shall not include any obligation which if
incurred would constitute the provision of financial assistance as
defined by article L 225-216 of the French Commercial Code and (E)
shall be limited at any time to the greater of:
(1) the equivalent to Euros of the funds (plus any accrued
interest thereon, commissions and fees) made available to any
Guarantor (other than, if applicable, the French Guarantor)
to the extent directly or indirectly on-lent to the French
Guarantor which such funds are made available, to
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the extent that such funds(s) have been on lent by such
Guarantor to the French Guarantor; and
(2) 70% of the greater of:
(A) the Net Asset Value of the French Guarantor calculated
and certified by the statutory auditors of the French
Guarantor on the basis of the last audited financial
statements available at the date hereof; and
(B) the Net Asset Value of the French Guarantor calculated
and certified by the statutory auditors of the French
Guarantor on the basis of the last audited financial
statements available at the date on which demand is
made on it pursuant to this Section 11.
For the purposes of this Section 11.03(d) "Net Asset Value" of the
French Guarantor means the capitaux propres (as defined under the
provisions of French accounting laws, decrees and regulations
consistently applied) of the French Guarantor. A certificate of
the statutory auditors of the French Guarantor as to the Net Asset
Value shall be prima facie evidence as to the amount to which it
relates.
(e) Limitations for Italian Guarantors.
Each Holder, by its acceptance of Notes, agrees that the enforcement of
the Guarantee given pursuant to this Section 11 by any Guarantor
incorporated in Italy (an "Italian Guarantor") shall be limited as
follows: each Italian Guarantor shall not be liable for any amounts in
respect of the guarantee and indemnity pursuant to this Article 11 in
excess of an amount of *20,000,000.
(f) Limitations for Spanish Guarantors.
Each Holder, by its acceptance of Notes, agrees that the Guarantee and
any other obligations of each Guarantor incorporated in Spain (a "Spanish
Guarantor") assumed under this Indenture and any security provided
pursuant to the terms of this Indenture by a Spanish Guarantor shall
neither (i) guarantee obligations vis-{a`}-vis the Holders pursuant to
the Notes corresponding to any amount of the proceeds of the Notes
received by the Issuer whenever such amount is used for funding the
acquisition of such Spanish Guarantor and/or the acquisition of its
dominant company and/or future upstream dominant companies, nor (ii) in
any manner whatsoever fund the acquisition of such Spanish Guarantor
and/or the acquisition of its dominant company and/or future upstream
dominant companies, in both cases together with interest accrued thereon
or other amounts owing in respect thereof under this Indenture, in
breach of Article 81.1 of Spanish Corporation's Act ("Ley de Sociedades
An{o'}nimas") and related Spanish legal provisions.
SECTION 11.04 Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 11.01 hereof, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form
attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the
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Trustee and that this Indenture will be executed on behalf of such Guarantor by
at least one of its Officers.
Each Guarantor hereby agrees that its Guarantee set forth in Section 11.01
hereof will remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the Guarantee no
longer holds that office at the time the Trustee authenticates the Note on
which a Guarantee is endorsed, the Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Guarantors.
SECTION 11.05 Releases.
(a) The Company Guarantee will be released upon the full and final payment
and performance of all Obligations under this Indenture and the Notes.
(b) The Subsidiary Guarantee of a Subsidiary Guarantor will be released:
(1) in connection with the sale of all the shares of such Subsidiary
Guarantor or an entity which owns such shares pursuant to an
Enforcement Action by the security agent in respect of any
Designated Senior Indebtedness; provided that the applicable
requirements set forth in the Intercreditor Agreement are complied
with;
(2) in connection with any sale or other disposition of all or
substantially all of the assets of such Subsidiary Guarantor
(including by way of merger or consolidation) to a Person that is
not (either before or after giving effect to such transaction) the
Issuer, the Company or a Restricted Subsidiary of the Company, if
the sale or other disposition (and the application of the proceeds
thereof) does not violate Section 4.10;
(3) in connection with any sale or other disposition of all of the
Capital Stock of such Subsidiary Guarantor to a Person that is not
(either before or after giving effect to such transaction) the
Issuer, the Company or a Restricted Subsidiary of the Company, if
the sale or other disposition (and the application of the proceeds
thereof) does not violate Section 4.10;
(4) if the Company designates such Subsidiary Guarantor to be an
Unrestricted Subsidiary in accordance with the Section 4.21; or
(5) upon legal defeasance or satisfaction and discharge of the
Indenture as provided in Article 8.
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ARTICLE 12
SATISFACTION AND DISCHARGE
SECTION 12.01 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect as to
all Notes issued thereunder, when:
(1) either:
(1) all Notes that have been authenticated, except lost, stolen
or destroyed Notes that have been replaced or paid and Notes
for whose payment money has been deposited in trust and
thereafter repaid to the Issuer, have been delivered to the
Trustee for cancellation; or
(2) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the
mailing of a notice of redemption or otherwise or will become
due and payable within one year and the Issuer has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the
holders cash in euro or euro-denominated non-callable
Government Securities, or any combination thereof in such
amounts as will be sufficient, through the payment of
interest thereon and principal in respect thereof in
accordance with their terms will provide, in such amounts as
will be sufficient without consideration of any reinvestment
of interest, to pay and discharge the entire Indebtedness
including principal, interest and premium, if any, to the
date of maturity or redemption on such Notes not theretofore
delivered to the Trustee for cancellation;
(2) no Default or Event of Default has occurred and is continuing on
the date of the deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such
deposit) and the deposit will not result in a breach or violation
of, or constitute a default under, any other material instrument to
which the Issuer or any Guarantor is a party or by which the Issuer
or any Guarantor is bound;
(3) the Issuer or any Guarantor has paid or caused to be paid all other
sums payable by it under this Indenture; and
(4) the Issuer has delivered irrevocable instructions to the Trustee
under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or on the redemption date, as the
case may be.
In addition, the Issuer must deliver an Officers' Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction
and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if money has
been deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section 12.01, the provisions of Sections 12.02 and 8.06 hereof will survive.
In addition, nothing in this Section 12.01 will be deemed to discharge those
provisions of Section 7.07 hereof, that, by their terms, survive the
satisfaction and discharge of this Indenture.
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SECTION 12.02 Application of Trust Money.
Subject to the provisions of Section 8.06 hereof, all money deposited with the
Trustee pursuant to Section 12.01 hereof shall be held in trust and applied by
it, in accordance with the provisions of the Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or Government
Securities in accordance with Section 12.01 hereof by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuer's and any Guarantor's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 12.01 hereof; provided that if the Issuer has made any payment of
principal of, premium, if any, or interest on, any Notes because of the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Notices.
Any notice or communication by the Issuer, any Guarantor or the Trustee to the
others is duly given if in writing and delivered in Person or by first class
mail (registered or certified, return receipt requested), facsimile
transmission or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Issuer and/or any Guarantor:
SGL CARBON Aktiengesellschaft
Xxxxxxxxxxxxxxx 000
X-00000 Xxxxxxxxx
Xxxxxxx
Facsimile No.: x00 000 0000 000
Attention: Office of the General Counsel
With a copy to:
Shearman & Sterling LLP
Westend-Carree
Xxxxxxxxxxxxxxx 00
X-00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
Facsimile No.: x00 00 0000 0000
Attention: Xxxxxxx Xxxxxx
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If to the Trustee or the Security Agent:
The Bank of New York
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Xxxxxxx
Facsimile No.: x00 000 000 0000
Attention: Corporate Trust Administration
The Issuer, any Guarantor or the Trustee, by notice to the others, may
designate additional or different addresses for subsequent notices or
communications.
Except as otherwise provided herein, notice regarding the Notes will be (1) if
Global Notes are outstanding, published in leading newspapers having a general
circulation in London and New York (which is expected to be The Wall Street
Journal and The Wall Street Journal European Edition) or (2) in the case of
Definitive Registered Notes, mailed to holders by first-class mail at their
respective addresses as they appear on the registration books of the Registrar.
In addition to the foregoing, all notices will, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such exchange so
require, published in a daily newspaper having general circulation in
Luxembourg (which is expected to be the Luxemburger Wort) or, if in the opinion
of the Trustee such publication is not practicable, in an English language
newspaper having general circulation in Europe. If and so long as the Notes
are listed on any other securities or investment exchange, notices will also be
given in accordance with any applicable requirements of such securities or
investment exchange. If and for so long as any Notes are represented by one or
more Global Notes and ownership of Book-Entry Interests therein are shown on
the records of Euroclear and Clearstream Banking or any successor clearing
agency appointed by the Trustee at the request of the Company, notices will
also be delivered to each such clearing agency for communication to the owners
of such Book-Entry Interests. Notices given by publication will be deemed
given on the first date on which publication is made and notices given by
first-class mail, postage prepaid, will be deemed given five calendar days
after mailing.
All notices and communications (other than those sent to Holders) will be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder will be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it will not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer or the Company mails a notice or communication to Holders, it
will mail a copy to the Trustee, the Security Agent and each Agent at the same
time.
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SECTION 13.02 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee or the Security
Agent to take any action under this Indenture, the Issuer shall furnish to the
Trustee or the Security Agent:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee or the Security Agent (which must
include the statements set forth in Section 13.03 hereof) stating
that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the
proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee or the Security Agent (which must include the
statements set forth in Section 13.03 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
SECTION 13.03 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture must include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 13.04 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Registrar or Paying Agent or the Security Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 13.05 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No director, officer, employee, incorporator or stockholder of the Issuer, the
Company or any Subsidiary Guarantor, as such, will have any liability for any
obligations of the Issuer, the Company or any Subsidiary Guarantor under the
Notes, this Indenture, the Guarantees, the Share Pledges or the Funding Loan
Pledge or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a note waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
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SECTION 13.06 Judgment Currency.
The Issuer and each Guarantor, jointly and severally, will agree to indemnify
the holders against any loss incurred, as incurred, as a result of any judgment
or award in connection with the Notes, Indenture, the Guarantees or the
Security Documents being expressed in a currency (the "Judgment Currency")
other than euros and as a result of any variation as between (i) the spot rate
of exchange used to calculate the Judgment Currency in which such judgment or
award is paid, and (ii) the spot rate of exchange at which the indemnified
party converts or could have converted such Judgment Currency at the earliest
practicable time after such judgment or award is rendered and becomes final.
The foregoing will constitute a separate and independent obligation of the
Issuer and each Guarantor will continue in full force and effect
notwithstanding any such judgment or order. The term "spot rate of exchange"
includes any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, the relevant currency.
SECTION 13.07 Prescription.
Claims against the Issuer and the Guarantors for the payment of principal on
the Notes will be prescribed ten years after the applicable due date for the
payment thereof. Claims against the Issuer and the Guarantors for the payment
of Interest or Additional Amounts, if any, on the Notes will be prescribed five
years after the applicable due date for payment of interest.
SECTION 13.08 Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE
THIS INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 13.09 Consent to Jurisdiction.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE PARTIES HERETO ARISING OUT OF OR
RELATING TO THIS INDENTURE OR ARISING UNDER THE U.S. FEDERAL OR STATE
SECURITIES LAWS AND ARISING OUT OF, RELATED TO OR BASED UPON THE TRANSACTIONS
CONTEMPLATED BY THIS INDENTURE, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY EXECUTING
AND DELIVERING THIS AGREEMENT, EACH OF THE PARTIES HERETO, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; WAIVES
ANY DEFENSE OF FORUM NON CONVENIENS; AGREES THAT SERVICE OF ALL PROCESS IN ANY
SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY AT ITS ADDRESS PROVIDED IN
ACCORDANCE WITH SECTION 14.02; AND AGREES THAT SUCH SERVICE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER THE APPLICABLE PARTY IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT.
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SECTION 13.10 Service of Process in New York.
The parties (other than the Trustee and the Security Agent) hereby acknowledge
and agree that each of them has, by separate letter agreement, irrevocably
appointed CT Corporation, as its authorized agent upon which process may be
served in any suit or proceeding against the Borrower arising out of or
relating to this Indenture or arising under the U.S. federal or state
securities laws and arising out of, related to or based upon the transactions
contemplated by this Indenture, and agree that service of process upon such
agent, and written notice of said service to them, by the person serving the
same to the address provided above, shall be deemed in every respect effective
service of process upon either of them in any such suit or proceeding. Each of
the Parties hereto agree to take any and all action as may be necessary to
maintain the designation and appointment of an agent in full force and effect
until February 1, 2012 (or earlier, if the Notes is prepaid in full).
SECTION 13.11 Waiver of Jury Trial.
EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER.
THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL
DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER
OF THIS INDENTURE, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS
AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED
FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY
REFERRING TO THIS SECTION 13.11 AND EXECUTED BY EACH OF THE PARTIES HERETO),
AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS HERETO. IN THE EVENT OF LITIGATION, THIS INDENTURE MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 13.13 Successors.
All agreements of the Company in this Indenture and the Notes will bind its
successors. All agreements of the Trustee in this Indenture will bind its
successors. All agreements of each Guarantor in this Indenture will bind its
successors, except as otherwise provided herein.
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SECTION 13.14 Severability.
In case any provision in this Indenture or in the Notes is invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.
SECTION 13.15 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy
will be an original, but all of them together represent the same agreement.
SECTION 13.16 Table of Contents, Headings, etc.
The Table of Contents and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and will in no way modify or restrict any
of the terms or provisions hereof.
(Signatures on following page)
- 111 -
SIGNATURES
Dated as of February 9, 2004
SGL CARBON LUXEMBOURG S.A.
By:________________________________________
Name:
Title:
SGL CARBON AKTIENGESELLSCHAFT
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
SGL CARBON S.A.
By:________________________________________
Name:
Title:
SGL CARBON LLC
By:________________________________________
Name:
Title:
SGL CARBON GMBH
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
- 112 -
SGL TECHNIC INC.
By:________________________________________
Name:
Title:
SGL ACOTEC GMBH
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
SGL CARBON GMBH & CO.
By:________________________________________
Name:
Title:
SGL ACOTEC S.A.S.
By:________________________________________
Name:
Title:
SGL CARBON S.P.A.
By:________________________________________
Name:
Title:
- 113 -
THE BANK OF NEW YORK
as Trustee
By:________________________________________
Name:
Title:
THE BANK OF NEW YORK
as Security Agent
By:________________________________________
Name:
Title:
- 114 -
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF NOTE]
[Insert 144A Legend or Regulation S Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert Dutch Legend]
THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE (THE "INDENTURE")) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON
UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE AND (II)
THIS GLOBAL NOTE MAY BE DELIVERED IN ACCORDANCE WITH SECTION 2.06(I) OF THE
INDENTURE TO THE REGISTRAR FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE.
SGL CARBON LUXEMBOURG S.A.
8.5% SENIOR NOTE DUE 2012
GUARANTEED BY
SGL CARBON AKTIENGESELLSCHAFT
AND THE SUBSIDIARY GUARANTORS (AS DEFINED
IN THE INDENTURE)
Common Code: ________
ISIN: ________
No. G- [e] ________
Issue Date: ________
SGL CARBON Luxembourg S.A., a soci{e'}t{e'} anonyme incorporated under the laws
of the Grand Duchy of Luxembourg (the "ISSUER"), for value received, promises
to pay to ______________________ or registered assigns, the principal sum of
________________________ euro ([e]_______) on February 1, 2012.
Regular Interest Payment Dates: February 1 and August 1
Regular Record Dates: January 15 and July 15
Reference is hereby made to the further provisions of this Note set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
A-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by the duly authorized officers referred to below.
Dated: _______________
SGL CARBON LUXEMBOURG S.A.,
as Issuer
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
A-2
(Form of Certificate of Authentication)
This is one of the 8.5% Senior Notes due 2012 described in the within-mentioned
Indenture.
Dated: _______________
THE BANK OF NEW YORK,
as Trustee
By:________________________________________
(Authorized Signatory)
A-3
[REVERSE SIDE OF NOTE]
SGL CARBON Luxembourg S.A.
8.5% SENIOR NOTE DUE 2012
GUARANTEED BY
SGL CARBON AKTIENGESELLSCHAFT
AND THE SUBSIDIARY GUARANTORS
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. SGL CARBON Luxembourg S.A., a soci{e'}t{e'} anonyme
incorporated under the laws of the Grand Duchy of Luxembourg (the
"Issuer"), promises to pay interest on the principal amount of this Note
at 8.5% per annum from ________________, 20__ until maturity. The Issuer
will pay interest semi-annually in arrears on February 1 and August 1 of
each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, a "Regular Interest Payment Date").
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Regular Interest
Payment Date, interest shall accrue from such next succeeding Regular
Interest Payment Date; provided further that the first Regular Interest
Payment Date shall be _______________, 20__. The Issuer will pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1% per annum in excess of the rate then
in effect to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
periods) from time to time on demand at the same rate to the extent
lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
(2) METHOD OF PAYMENT. Interest payable on this Note, and punctually paid or
duly provided for, on any Regular Interest Payment Date will be paid to
the person in whose name this Note is registered at the close of business
on the Regular Record Date referred to on the face of this Note (whether
or not a Business Day) next preceding such Regular Interest Payment Date.
Any such interest not so punctually paid or duly provided for, and any
interest payable on such defaulted interest (to the extent lawful), will
forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid to the person in whose name this Note is registered at
the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Issuer, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal and premium on this Note will be made upon
presentation of this Note at the offices of the Trustee.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to any Holder.
The Issuer or any of its Subsidiaries may act in any such capacity.
A-4
(4) INDENTURE AND SECURITY DOCUMENTS. The Issuer issued the Notes under an
Indenture dated as of February 9, 2004 (the "Indenture") among the
Issuer, Company, the Subsidiary Guarantors, the Trustee and the Security
Agent. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the TIA. The Notes are
subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of
this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The
Indenture does not limit the aggregate principal amount of Notes that may
be issued thereunder.
The Notes and the Guarantees are secured obligations of the Issuer and
the Guarantees. The security for the Guarantees is subject to the
Intercreditor Agreement and the Security Trust Agreement. Each Holder by
its acceptance of Notes acknowledges and agrees to the terms of the
Intercreditor Agreement and the Security Trust Agreement.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Issuer will not have the option to redeem the Notes prior to
February 1, 2008. On or after February 1, 2008, the Issuer will
have the option to redeem all or a part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month
period beginning on February 1, of the years indicated below,
subject to the rights of Holders on the relevant record date to
receive interest on the relevant Regular Interest Payment Date:
Year Percentage
2008.................................................... 104.250%
2009.................................................... 102.833%
2010.................................................... 101.416%
2011 and thereafter..................................... 100.000%
Unless the Issuer defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof
called for redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to February 1, 2007, the Issuer may
on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture with the net
cash proceeds of one of more Public Equity Offerings of the Company
at a redemption price equal to 108.500% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date;
provided that at least 65% in aggregate principal amount of the
Notes originally issued under the Indenture (excluding Notes held
by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption of Notes and
that such redemption occurs within 60 days of the date of the
closing of such Public Equity Offering.
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(6) MANDATORY REDEMPTION. The Issuer is not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
(7) REDEMPTION FOR CHANGES IN WITHHOLDING TAX. The Issuer may redeem the
Notes, in whole but not in part, at its discretion at any time upon
giving not less than 30 nor more than 60 days' prior notice to the
Holders (which notice will be irrevocable and given in accordance Section
14.02 of the Indenture), at a redemption price equal to the principal
amount thereof, together with accrued and unpaid interest, to the date
fixed by the Issuer for redemption (a "Tax Redemption Date") and all
Additional Amounts (if any) then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise (and in the
case of Definitive Registered Notes, subject to the right of holders on
the relevant record date to receive interest due on the relevant Regular
Interest Payment Date and Additional Amounts (if any) in respect
thereof), if on the next date on which any amount would be payable in
respect of the Notes, the Issuer or successor entity has or would be
required to pay Additional Amounts, and the Issuer or successor entity
cannot avoid any such payment obligation taking reasonable measures
available, as a result of:
(1) any change in, or amendment to, the laws or treaties (or any
regulations, or rulings promulgated thereunder) of the Relevant
Taxing Jurisdiction affecting taxation after the date hereof (or,
if the Relevant Taxing Jurisdiction has changed since the date
hereof, the date on which the then current Relevant Taxing
Jurisdiction became the applicable Relevant Taxing Jurisdiction)
under the Indenture; or
(2) any change in, or amendment to, the existing official position or
the introduction of an official position regarding the application,
administration or interpretation of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a
court of competent jurisdiction or a change in published practice),
after the date hereof (or, if the Relevant Taxing Jurisdiction has
changed since the date hereof, the date on which the then current
Relevant Taxing Jurisdiction became the applicable Relevant Taxing
Jurisdiction under the Indenture).
The Issuer or successor entity will not give any such notice of
redemption earlier than 90 days prior to the earliest date on which the
Issuer would be obligated to make such payment or withholding if a
payment in respect of the Notes were then due. Notwithstanding the
foregoing, the Issuer may not redeem the Notes under this provision if
the Relevant Taxing Jurisdiction changes under the Indenture and the
Issuer is obligated to pay any Additional Amounts as a result of a change
in, or an amendment to, the laws or treaties (or any regulations or
rulings promulgated thereunder), or any change in or amendment to, any
official position regarding the application, administration or
interpretation of such laws, treaties, regulations or rules, of the then
current Relevant Taxing Jurisdiction which, at the time such Relevant
Taxing Jurisdiction became the applicable Relevant Taxing Jurisdiction
under the Indenture, was publicly announced as formally proposed. Prior
to the publication or, where relevant, mailing of any notice of
redemption of the Notes pursuant to the foregoing, the Issuer will
deliver the Trustee an Opinion of Counsel, the choice of such counsel to
be subject to the prior written approval of the Trustee (such approval
not to be unreasonably withheld) to the effect that the Issuer or
successor entity cannot avoid any obligation to pay Additional Amounts
taking reasonable measures available and there has been such change or
amendment which would entitle the Issuer successor entity to redeem the
Notes hereunder. For the
A-6
avoidance of doubt, the Issuer or successor entity shall not be entitled
to redeem the Notes as a consequence of the adoption of the European
Council Directive 2003/48/EC or any other Directive implementing the
conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the
taxation of savings income or any law implementing or complying with, or
introduced in order to conform to, such Directive.
(8) REPURCHASE AT THE OPTION OF HOLDER.
(A) If there is a Change of Control, the Issuer will be required to
make an offer (a "Change of Control Offer") to each Holder to
repurchase all or any part (equal to [e]1,000 or an integral
multiple of [e]1,000) of each Holder's Notes at a purchase price in
cash equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon to the date of purchase,
subject to the rights of Holders on the relevant record date to
receive interest due on the relevant Regular Interest Payment Date
(the "Change of Control Payment"). Within 30 days following any
Change of Control, the Issuer will mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer
as required by the Indenture.
(B) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within five days of each date on which
the aggregate amount of Excess Proceeds exceeds e10.0 million, the
Issuer will commence an offer to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of
sales of assets (an "Asset Sale Offer") pursuant to Section 3.09 of
the Indenture to purchase the maximum principal amount of Notes and
such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Restricted Subsidiary) may use such
deficiency for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other
pari passu Indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes
and such other pari passu Indebtedness to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to
Elect Purchase" attached hereto.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption
date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction or discharge of the Indenture. Notes in denominations
larger than [e]1,000 may be redeemed in part but only in whole multiples
of [e]1,000, unless all of the Notes held by a Holder are to be redeemed.
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(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of e1,000 and integral multiples of
*1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuer may require a Holder
to pay any taxes and fees required by law or permitted by the Indenture.
The Issuer need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, the Issuer need not
exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Regular Interest Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes or the Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class, and any existing Default or
Event or Default or compliance with any provision of the Indenture or the
Notes or the Guarantees may be waived with the consent of the Holders of
a majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class. Without
the consent of any Holder of a Note, the Indenture or the Notes or the
Guarantees may be amended or supplemented to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the
Company's or a Guarantor's obligations to Holders of the Notes and
Guarantees in case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the Holders of the
Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under
the TIA, to conform the text of the Indenture, the Security Documents or
the Notes to any provision of the "Description of the Notes" section of
the Issuer's Offering Circular dated January 27, 2004, relating to the
initial offering of the Notes, to the extent that such provision in that
"Description of the Notes" was intended to be a verbatim recitation of a
provision of the Indenture, the Guarantees, the Security Documents or the
Notes; to provide for the issuance of Additional Notes in accordance with
the limitations set forth in the Indenture, or to allow any Guarantor to
execute a supplemental indenture to the Indenture and/or a Guarantee with
respect to the Notes.
(13) DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on the Notes, (ii) default in
the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes, (iii) failure by the
Issuer, the Company or any of its Restricted Subsidiaries to comply with
Section 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by the Issuer,
the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes, then outstanding voting as a
single class to comply with any of the other agreements in the Indenture,
the Share Pledges of the Funding Loan Pledge or, to the extent the
Convertible Bonds remain outstanding, the Intercreditor Agreement (but
only with respect of defaults to, caused by, or arising in respect of the
Convertible Bonds); (v)
A-8
default under certain other agreements relating to Indebtedness of the
Company which default results in the acceleration of such Indebtedness
prior to its express maturity; (vi) certain final judgments for the
payment of money that remain undischarged for a period of 60 days; (vii)
certain events of bankruptcy or insolvency with respect to the Issuer,
the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary; and (viii) the security
interest under any of the Share Pledges or the Funding Loan Pledge shall,
at any time, other than in accordance with its terms, cease to be in full
force and effect for any reason other than the satisfaction in full of
all obligations under the Indenture and discharge of the Indenture or any
security interest created hereunder or under any of the Share Pledges or
Funding Loan Pledge shall be declared invalid or unenforceable or the
Company, the Issuer or any Affiliate of the Company shall assert, in any
pleading in any court of competent jurisdiction that any such security
interest is invalid or unenforceable. If any Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of the then outstanding Notes may declare all the Notes
to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable immediately
without further action or notice. Holders may not enforce the Indenture
or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
then outstanding Notes may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event
of Default relating to the payment of principal or interest or premium,
if any,) if it determines that withholding notice is in their interest.
The Holders of a majority in aggregate principal amount of the then
outstanding Notes by notice to the Trustee may, on behalf of the Holders
of all of the Notes, rescind an acceleration or waive any existing
Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of
interest or premium, if any, on, or the principal of, the Notes. The
Issuer is required to deliver to the Trustee annually a statement
regarding compliance with the Indenture, and the Issuer is required, upon
becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default.
(14) SUBORDINATION. Payment of principal, interest and premium, if any, on
the Guarantees is subordinated to the prior payment of Senior
Indebtedness on the terms provided in the Indenture and the Intercreditor
Agreement. Each Holder by its acceptance of Notes acknowledges and
agrees to the terms of the Intercreditor Agreement.
(15) TRUSTEE DEALINGS WITH COMPANY. The Trustee or the Security Agent, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Issuer, the Company or its Affiliates,
and may otherwise deal with the Issuer, the Company or its Affiliates, as
if it were not the Trustee or the Security Agent.
(16) NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator
or stockholder of the Issuer, the Company or any Subsidiary Guarantor, as
such, will have any liability for any obligations of the Issuer, the
Company or any Subsidiary Guarantor under the Notes, the Indenture, the
Guarantees, the Share Pledges or the Funding Loan Pledge or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a note waives and releases
all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
A-9
The waiver may not be effective to waive liabilities under the U.S.
federal securities laws, and it is the view of the SEC that such a waiver
is against public policy.
(17) AUTHENTICATION. This Note will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
(18) ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
(19) ISIN AND CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has
caused ISIN and CUSIP numbers to be printed on the Notes, and the Trustee
may use ISIN and CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification
numbers placed thereon.
(20) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without charge
a copy of the Indenture. Requests may be made to:
SGL CARBON Luxembourg S.A.
c/o: SGL CARBON Aktiengesellschaft
Xxxxxxxxxxxxxxx 000
X-00000
Xxxxxxxxx, Xxxxxxx
Attention: Office of the General Counsel
A-10
SCHEDULE OF PRINCIPAL AMOUNT
OF INDEBTEDNESS EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this Note shall be
[e]_____. The following decreases/increases in the principal amount of
indebtedness evidenced by this Note have been made:
Decrease in Principal Increase in Principal Total Principal Amount of Indebtedness
Amount of Indebtedness Amount of Indebtedness Evidenced Following such Decrease/
Date of Evidenced Evidenced Increase Notation Made by or on Behalf
Decrease/ of Book-Entry Agent or
Increase Registrar
[e] [e] [e] [e] [e]*
A-11
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer, check the Box:
[ ].
If you wish to have a portion of this Note purchased by the Issuer, state the
amount (in principal amount): [e]______________
Date: ________________________Your Signature: ________________________
(Sign exactly as your name appears on the other side of this Note.)
Signature Guarantee:*
___________________________
_____________________
* Participant in a recognized signature Medallion Program (or other
signature guarantor acceptable to the Principal Paying Agent).
A-12
EXHIBIT B
FORM OF DEFINITIVE REGISTERED NOTE
[FACE OF NOTE]
[Insert 144A Legend or Regulation S Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert Dutch Legend]
SGL CARBON LUXEMBOURG S.A.
8.5% SENIOR NOTE DUE 2012
GUARANTEED BY
SGL CARBON AKTIENGESELLSCHAFT
AND THE SUBSIDIARY GUARANTORS (AS DEFINED
IN THE INDENTURE)
Common Code: ________
ISIN: ________
No. D- [e] ________
Issue Date: ________
SGL CARBON Luxembourg S.A., a soci{e'}t{e'} anonyme incorporated under the laws
of the Grand Duchy of Luxembourg (the "ISSUER"), for value received, promises
to pay to ______________________ or registered assigns, the principal sum of
________________________ euro ([e]_______) on February 1, 2012.
Regular Interest Payment Dates: February 1 and August 1
Regular Record Dates: January 15 and July 15
Reference is hereby made to the further provisions of this Note set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
B-1
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by the duly authorized officers referred to below.
Dated: _______________
SGL CARBON LUXEMBOURG S.A.,
as Issuer
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
B-2
(Form of Certificate of Authentication)
This is one of the 8.5% Senior Notes due 2012 described in the within-mentioned
Indenture.
Dated: _______________
THE BANK OF NEW YORK,
as Trustee
By: ____________________________________
(Authorized Signatory)
B-3
SGL CARBON Luxembourg S.A.
8.5% SENIOR NOTE DUE 2012
GUARANTEED BY
SGL CARBON AKTIENGESELLSCHAFT
AND THE SUBSIDIARY GUARANTORS
Capitalized terms used herein have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
(1) INTEREST. SGL CARBON Luxembourg S.A., a soci{e'}t{e'} anonyme
incorporated under the laws of the Grand Duchy of Luxembourg (the
"Issuer"), promises to pay interest on the principal amount of this Note
at 8.5% per annum from ________________, 20__ until maturity. The Issuer
will pay interest semi-annually in arrears on February 1 and August 1 of
each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an "Interest Payment Date"). Interest on
the Notes will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the date of issuance;
provided that if there is no existing Default in the payment of interest,
and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Regular Interest Payment Date,
interest shall accrue from such next succeeding Regular Interest Payment
Date; provided further that the first Regular Interest Payment Date shall
be _______________, 20__. The Issuer will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a
rate that is 1% per annum in excess of the rate then in effect to the
extent lawful; it will pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
(2) METHOD OF PAYMENT. Interest payable on this Note, and punctually paid or
duly provided for, on any Regular Interest Payment Date will be paid to
the person in whose name this Note is registered at the close of business
on the Regular Record Date referred to on the face of this Note (whether
or not a Business Day) next preceding such Regular Interest Payment Date.
Any such interest not so punctually paid or duly provided for, and any
interest payable on such defaulted interest (to the extent lawful), will
forthwith cease to be payable to the Holder on such Regular Record Date
and shall be paid to the person in whose name this Note is registered at
the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Issuer, notice of which shall be
given to Holders not less than 15 days prior to such special record date.
Payment of the principal and premium on this Note will be made upon
presentation of this Note at the offices of the Trustee.
(3) PAYING AGENT AND REGISTRAR. Initially, The Bank of New York, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Issuer
may change any Paying Agent or Registrar without notice to any Holder.
The Issuer or any of its Subsidiaries may act in any such capacity.
(4) INDENTURE AND SECURITY DOCUMENTS. The Issuer issued the Notes under an
Indenture dated as of February 9, 2004 (the "Indenture") among the
Issuer, Company, the Subsidiary Guarantors, the Trustee and the Security
Agent. The terms of the Notes
B-4
include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note
conflicts with the express provisions of the Indenture, the provisions of
the Indenture shall govern and be controlling. The Indenture does not
limit the aggregate principal amount of Notes that may be issued
thereunder.
The Notes and the Guarantees are secured obligations of the Issuer and
the Guarantees. The security for the Guarantees is subject to the
Intercreditor Agreement and the Security Trust Agreement. Each Holder by
its acceptance of Notes acknowledges and agrees to the terms of the
Intercreditor Agreement and the Security Trust Agreement.
(5) OPTIONAL REDEMPTION.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Issuer will not have the option to redeem the Notes prior to
February 1, 2008. On or after February 1, 2008, the Issuer will
have the option to redeem all or a part of the Notes upon not less
than 30 nor more than 60 days' notice, at the redemption prices
(expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest, on the Notes redeemed to the
applicable redemption date, if redeemed during the twelve-month
period beginning on February 1, of the years indicated below,
subject to the rights of Holders on the relevant record date to
receive interest on the relevant Regular Interest Payment Date:
Year Percentage
2008.................................................... 104.250%
2009.................................................... 102.833%
2010.................................................... 101.416%
2011 and thereafter..................................... 100.000%
Unless the Issuer defaults in the payment of the redemption price,
interest will cease to accrue on the Notes or portions thereof
called for redemption on the applicable redemption date.
(b) Notwithstanding the provisions of subparagraph (a) of this
Paragraph 5, at any time prior to February 1, 2007, the Issuer may
on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes issued under the Indenture with the net
cash proceeds of one of more Public Equity Offerings of the Company
at a redemption price equal to 108.500% of the principal amount
thereof, plus accrued and unpaid interest to the redemption date;
provided that at least 65% in aggregate principal amount of the
Notes originally issued under the Indenture (excluding Notes held
by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption of Notes and
that such redemption occurs within 60 days of the date of the
closing of such Public Equity Offering.
(6) MANDATORY REDEMPTION. The Issuer is not be required to make mandatory
redemption or sinking fund payments with respect to the Notes.
B-5
(7) REDEMPTION FOR CHANGES IN WITHHOLDING TAX. The Issuer may redeem the
Notes, in whole but not in part, at its discretion at any time upon
giving not less than 30 nor more than 60 days' prior notice to the
Holders (which notice will be irrevocable and given in accordance Section
14.02 of the Indenture), at a redemption price equal to the principal
amount thereof, together with accrued and unpaid interest, to the date
fixed by the Issuer for redemption (a "Tax Redemption Date") and all
Additional Amounts (if any) then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise (and in the
case of Definitive Registered Notes, subject to the right of holders on
the relevant record date to receive interest due on the relevant Regular
Interest Payment Date and Additional Amounts (if any) in respect
thereof), if on the next date on which any amount would be payable in
respect of the Notes, the Issuer or successor entity has or would be
required to pay Additional Amounts, and the Issuer or successor entity
cannot avoid any such payment obligation taking reasonable measures
available, as a result of:
(1) any change in, or amendment to, the laws or treaties (or any
regulations, or rulings promulgated thereunder) of the Relevant
Taxing Jurisdiction affecting taxation after the date hereof (or,
if the Relevant Taxing Jurisdiction has changed since the date
hereof, the date on which the then current Relevant Taxing
Jurisdiction became the applicable Relevant Taxing Jurisdiction)
under the Indenture; or
(2) any change in, or amendment to, the existing official position or
the introduction of an official position regarding the application,
administration or interpretation of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a
court of competent jurisdiction or a change in published practice),
after the date hereof (or, if the Relevant Taxing Jurisdiction has
changed since the date hereof, the date on which the then current
Relevant Taxing Jurisdiction became the applicable Relevant Taxing
Jurisdiction under the Indenture).
The Issuer or successor entity will not give any such notice of
redemption earlier than 90 days prior to the earliest date on which the
Issuer would be obligated to make such payment or withholding if a
payment in respect of the Notes were then due. Notwithstanding the
foregoing, the Issuer may not redeem the Notes under this provision if
the Relevant Taxing Jurisdiction changes under the Indenture and the
Issuer is obligated to pay any Additional Amounts as a result of a change
in, or an amendment to, the laws or treaties (or any regulations or
rulings promulgated thereunder), or any change in or amendment to, any
official position regarding the application, administration or
interpretation of such laws, treaties, regulations or rules, of the then
current Relevant Taxing Jurisdiction which, at the time such Relevant
Taxing Jurisdiction became the applicable Relevant Taxing Jurisdiction
under the Indenture, was publicly announced as formally proposed. Prior
to the publication or, where relevant, mailing of any notice of
redemption of the Notes pursuant to the foregoing, the Issuer will
deliver to the Trustee an Opinion of Counsel, the choice of such counsel
to be subject to the prior written approval of the Trustee (such approval
not to be unreasonably withheld) to the effect that the Issuer or
successor entity cannot avoid any obligation to pay Additional Amounts
taking reasonable measures available and there has been such change or
amendment which would entitle the Issuer successor entity to redeem the
Notes hereunder. For the avoidance of doubt, the Issuer or successor
entity shall not be entitled to redeem the Notes as a consequence of the
adoption of the European Council Directive 2003/48/EC or any other
Directive implementing the conclusions of the ECOFIN Council meeting of
B-6
26-27 November 2000 on the taxation of savings income or any law
implementing or complying with, or introduced in order to conform to,
such Directive.
(8) REPURCHASE AT THE OPTION OF HOLDER.
(A) If there is a Change of Control, the Issuer will be required to
make an offer (a "Change of Control Offer") to each Holder to
repurchase all or any part (equal to e1,000 or an integral multiple
of e1,000) of each Holder's Notes at a purchase price in cash equal
to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest thereon to the date of purchase, subject to the
rights of Holders on the relevant record date to receive interest
due on the relevant Regular Interest Payment Date (the "Change of
Control Payment"). Within 30 days following any Change of Control,
the Issuer will mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the
Indenture.
(B) If the Company or a Restricted Subsidiary of the Company
consummates any Asset Sales, within five days of each date on which
the aggregate amount of Excess Proceeds exceeds e10.0 million, the
Issuer will commence an offer to all Holders of Notes and all
holders of other Indebtedness that is pari passu with the Notes
containing provisions similar to those set forth in the Indenture
with respect to offers to purchase or redeem with the proceeds of
sales of assets (an "Asset Sale Offer") pursuant to Section 3.09 of
the Indenture to purchase the maximum principal amount of Notes and
such other pari passu Indebtedness that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid
interest thereon to the date of purchase, in accordance with the
procedures set forth in the Indenture. To the extent that the
aggregate amount of Notes and other pari passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Restricted Subsidiary) may use such
deficiency for any purpose not otherwise prohibited by the
Indenture. If the aggregate principal amount of Notes and other
pari passu Indebtedness tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds, the Trustee shall select the Notes
and such other pari passu Indebtedness to be purchased on a pro
rata basis. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to
any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to
Elect Purchase" attached hereto.
(9) NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, except that
redemption notices may be mailed more than 60 days prior to a redemption
date if the notice is issued in connection with a defeasance of the Notes
or a satisfaction or discharge of the Indenture. Notes in denominations
larger than e1,000 may be redeemed in part but only in whole multiples of
e1,000, unless all of the Notes held by a Holder are to be redeemed.
(10) DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of e1,000 and integral multiples of
e1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture.
B-7
The Registrar and the Trustee may require a Holder, among other things,
to furnish appropriate endorsements and transfer documents and the Issuer
may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Issuer need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except
for the unredeemed portion of any Note being redeemed in part. Also, the
Issuer need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during
the period between a record date and the corresponding Regular Interest
Payment Date.
(11) PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as
its owner for all purposes.
(12) AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes or the Guarantees may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class, and any existing Default or
Event or Default or compliance with any provision of the Indenture or the
Notes or the Guarantees may be waived with the consent of the Holders of
a majority in aggregate principal amount of the then outstanding Notes
including Additional Notes, if any, voting as a single class. Without
the consent of any Holder of a Note, the Indenture or the Notes or the
Guarantees may be amended or supplemented to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the
Company's or a Guarantor's obligations to Holders of the Notes and
Guarantees in case of a merger or consolidation, to make any change that
would provide any additional rights or benefits to the Holders of the
Notes or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under
the TIA, to conform the text of the Indenture, the Security Documents or
the Notes to any provision of the "Description of the Notes" section of
the Issuer's Offering Circular dated January 27, 2004, relating to the
initial offering of the Notes, to the extent that such provision in that
"Description of the Notes" was intended to be a verbatim recitation of a
provision of the Indenture, the Guarantees, the Security Documents or the
Notes; to provide for the issuance of Additional Notes in accordance with
the limitations set forth in the Indenture, or to allow any Guarantor to
execute a supplemental indenture to the Indenture and/or a Guarantee with
respect to the Notes.
(13) DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30
days in the payment when due of interest on the Notes; (ii) default in
the payment when due (at maturity, upon redemption or otherwise) of the
principal of, or premium, if any, on, the Notes, (iii) failure by the
Issuer, the Company or any of its Restricted Subsidiaries to comply with
Section 4.10, 4.15 or 5.01 of the Indenture; (iv) failure by the Issuer,
the Company or any of its Restricted Subsidiaries for 60 days after
notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes, then outstanding voting as a
single class to comply with any of the other agreements in the Indenture,
the Share Pledges of the Funding Loan Pledge or, to the extent the
Convertible Bonds remain outstanding, the Intercreditor Agreement (but
only with respect of defaults to, caused by, or arising in respect of the
Convertible Bonds); (v) default under certain other agreements relating
to Indebtedness of the Company which default results in the acceleration
of such Indebtedness prior to its express maturity; (vi) certain final
judgments for the payment of money that remain undischarged for a period
B-8
of 60 days; (vii) certain events of bankruptcy or insolvency with respect
to the Issuer, the Company or any of its Restricted Subsidiaries that is
a Significant Subsidiary or any group of Restricted Subsidiaries that,
taken together, would constitute a Significant Subsidiary; and (viii) the
security interest under any of the Share Pledges or the Funding Loan
Pledge shall, at any time, other than in accordance with its terms, cease
to be in full force and effect for any reason other than the satisfaction
in full of all obligations under the Indenture and discharge of the
Indenture or any security interest created hereunder or under any of the
Share Pledges or Funding Loan Pledge shall be declared invalid or
unenforceable or the Company, the Issuer or any Affiliate of the Company
shall assert, in any pleading in any court of competent jurisdiction that
any such security interest is invalid or unenforceable. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least
25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately. Notwithstanding
the foregoing, in the case of an Event of Default arising from certain
events of bankruptcy or insolvency, all outstanding Notes will become due
and payable immediately without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold
from Holders of the Notes notice of any continuing Default or Event of
Default (except a Default or Event of Default relating to the payment of
principal or interest or premium, if any,) if it determines that
withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the then outstanding Notes by notice to the
Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or premium, if any, on, or the
principal of, the Notes. The Issuer is required to deliver to the
Trustee annually a statement regarding compliance with the Indenture, and
the Issuer is required, upon becoming aware of any Default or Event of
Default, to deliver to the Trustee a statement specifying such Default or
Event of Default.
(14) SUBORDINATION. Payment of principal, interest and premium, if any, on
the Guarantees is subordinated to the prior payment of Senior
Indebtedness on the terms provided in the Indenture and the Intercreditor
Agreement. Each Holder by its acceptance of Notes acknowledges and
agrees to the terms of the Intercreditor Agreement.
(15) TRUSTEE DEALINGS WITH COMPANY. The Trustee or the Security Agent, in its
individual or any other capacity, may make loans to, accept deposits
from, and perform services for the Issuer, the Company or its Affiliates,
and may otherwise deal with the Issuer, the Company or its Affiliates, as
if it were not the Trustee or the Security Agent.
(16) NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator
or stockholder of the Issuer, the Company or any Subsidiary Guarantor, as
such, will have any liability for any obligations of the Issuer, the
Company or any Subsidiary Guarantor under the Notes, the Indenture, the
Guarantees, the Share Pledges or the Funding Loan Pledge or for any claim
based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a note waives and releases
all such liability. The waiver and release are part of the consideration
for issuance of the Notes. The waiver may not be effective to waive
liabilities under the U.S. federal securities laws, and it is the view of
the SEC that such a waiver is against public policy.
B-9
(17) AUTHENTICATION. This Note will not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
(18) ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
(19) ISIN and CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuer has
caused ISIN and CUSIP numbers to be printed on the Notes, and the Trustee
may use ISIN and CUSIP numbers in notices of redemption as a convenience
to Holders. No representation is made as to the accuracy of such numbers
either as printed on the Notes or as contained in any notice of
redemption, and reliance may be placed only on the other identification
numbers placed thereon.
(20) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND
BE USED TO CONSTRUE THE INDENTURE, THE NOTES AND THE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and without charge
a copy of the Indenture. Requests may be made to:
SGL CARBON Luxembourg S.A.
c/o: SGL CARBON Aktiengesellschaft
Xxxxxxxxxxxxxxx 000
X-00000
Xxxxxxxxx, Xxxxxxx
Attention: Office of the General Counsel
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Issuer, check the Box:
[ ].
If you wish to have a portion of this Note purchased by the Issuer, state the
amount (in principal amount): [e]______________
Date: ________________________Your Signature: ________________________
(Sign exactly as your name appears on the other side of this Note.)
Signature Guarantee:*
___________________________
_________________
* Participant in a recognized signature Medallion Program (or other
signature guarantor acceptable to the Principal Paying Agent).
B-11
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
THE BANK OF NEW YORK
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Xxxxxxx
Attention: Corporate Trust Administration
SGL CARBON LUXEMBOURG S.A.
c/o SGL CARBON Aktiengesellschaft
Xxxxxxxxxxxxxxx 000
X-00000 Xxxxxxxxx
Xxxxxxx
Attention: Office of the General Counsel
Re: 8.5% Senior Notes due 2012 of SGL CARBON Luxembourg S.A.
Reference is hereby made to the Indenture, dated February 9, 2004 (the
"Indenture"), between SGL CARBON Luxembourg S.A., as issuer (the "Issuer"), the
Company (as defined therein) (the "Parent"), the Subsidiary Guarantors (each of
the Parent and each Subsidiary Guarantor, a "Guarantor") and The Bank of New
York, as trustee and as security agent. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
_____________________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of [e]__________ (the "Transfer"), to ________________ (the
"Transferee"), as further specified in Annex A hereto. In connection with the
Transfer, the Transferor hereby certifies that:
1. [box] CHECK IF TRANSFER IS PURSUANT TO RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the US Securities
Act of 1933, as amended (the "Securities Act") and, accordingly, the Transferor
hereby further certifies that the Book-Entry Interest or Definitive Registered
Note is being transferred to a Person that the Transferor reasonably believes
is purchasing the Book-Entry Interest or Definitive Registered Note for its own
account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is
a "qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is in
compliance with all applicable securities laws of any other jurisdiction. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred Book-Entry Interest or Definitive Registered Note
will be subject to the restrictions on transfer enumerated in the 144A Legend
printed on the U.S. Global Note and/or the 144A Definitive Registered Note and
in the Indenture and the Securities Act.
2. [box] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the Transfer
is not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably
C-1
believed and believes that the Transferee was outside the United States or (y)
the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in contravention
of the requirements of Rule 904(b) of Regulation S under the Securities Act and
(iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the transferred Book-Entry
Interest or Definitive Registered Note will be subject to the restrictions on
transfer enumerated in the Regulation S Legend and in the Indenture and the
Securities Act.
3. [box] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
all applicable securities laws of any other jurisdiction, (ii) the Transferor
is not (and during the three months preceding the Transfer was not) an
Affiliate of the Issuer or any Guarantor, (iii) at least two years have elapsed
since such Transferor (or any previous transferor of such Book-Entry Interest
or Definitive Registered Note that was not an Affiliate of the Issuer or any
Guarantor) acquired such Book-Entry Interest or Definitive Registered Note from
the Issuer, any Guarantor or an Affiliate of the Issuer or any Guarantor, and
(iv) the restrictions on transfer contained in the Indenture and the 144A
Legend are not required in order to maintain compliance with the Securities
Act. Upon consummation of the proposed Transfer in accordance with the terms of
the Indenture, the transferred Book-Entry Interest or 144A Definitive
Registered Note will no longer be subject to the restrictions on transfer
enumerated in the 144A Legend printed on the U.S. Global Note and/or the 144A
Definitive Registered Notes and in the Indenture.
C-2
This certificate and the statements contained herein are made for your benefit
and the benefit of each Guarantor.
___________________________________________
[Insert Name of Transferor]
By:________________________________________
Name:
Title:
Dated: _______________________
C-3
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a), (b) OR (c)]
(a) ~ a Book-Entry Interest held through Euroclear Account No.________ or
Clearstream Banking Account No.________, in the:
(i) ~ U.S. Global Note (ISIN XS 0184985611), or
(ii) ~ International Global Note (ISIN XS 0184985538), or
(b) ~ a 144A Definitive Registered Note; or
(c) ~ an International Definitive Registered Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) ~ a Book-Entry Interest through Euroclear Account No.________ or
Clearstream Banking Account No.________, in the:
(i) ~ U.S. Global Note (ISIN XS 0184985611), or
(ii) ~ International Global Note (ISIN XS 0184985538),
(b) ~ a 144A Definitive Registered Note; or
(c) ~ a International Definitive Registered Note; or
(d) ~ an Unrestricted Definitive Registered Note.
C-4
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
THE BANK OF NEW YORK
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Xxxxxxx
Attention: Corporate Trust Administration
SGL CARBON LUXEMBOURG S.A.
c/o SGL CARBON Aktiengesellschaft
Xxxxxxxxxxxxxxx 000
X-00000 Xxxxxxxxx
Xxxxxxx
Attention: Office of the General Counsel
Re: 8.5% Senior Notes due 2012 of SGL CARBON Luxembourg S.A.
Reference is hereby made to the Indenture, dated February 9, 2004 (the
"Indenture"), between SGL CARBON Luxembourg S.A., as issuer (the "Issuer"), the
Company (as defined therein) (the "Parent"), the Subsidiary Guarantors (each of
the Parent and each Subsidiary Guarantor, a "Guarantor") and The Bank of New
York, as trustee and as security agent. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of [e]____________ in such Note[s] or interests (the
"Exchange") to be held following such Exchange as specified below and in Annex
A hereto. In connection with the Exchange, the Owner hereby certifies that:
1. CHECK FOR ALL EXCHANGES (UNLESS THIS BOX IS CHECKED, YOU WILL NOT BE
PERMITTED TO COMPLETE THE EXCHANGE):
0 In connection with the Exchange of the Owner's Book-Entry
Interest in the Global Note or Restricted Definitive Registered Notes for
Definitive Registered Notes or a Book-Entry Interest in a Global Note with an
equal principal amount, the Owner hereby certifies that such Definitive
Registered Notes or such Book-Entry Interest is being acquired for the Owner's
own account without transfer.
[CHECK THOSE THAT ARE APPLICABLE (IF ANY)
2. EXCHANGE AFTER MARCH 20, 2004 OF BOOK-ENTRY INTERESTS IN INTERNATIONAL
GLOBAL NOTES OR INTERNATIONAL DEFINITIVE REGISTERED NOTES FOR UNRESTRICTED
DEFINITIVE REGISTERED NOTES OR FOR BOOK-ENTRY INTERESTS IN THE INTERNATIONAL
GLOBAL NOTE.
0 In connection with the Exchange, the Owner hereby certifies that
(i) it acquired its International Definitive Registered Notes or Book-Entry
Interest in the International Global Note in a transaction complying with Rule
903 or 904 under the Act and it is not an Affiliate of the Issuer or any
Guarantor and (ii) the Note(s) are being acquired in compliance with all
D-1
applicable securities laws of any other jurisdiction.
3. EXCHANGE OF BOOK-ENTRY INTERESTS IN U.S. GLOBAL NOTES OR 144A DEFINITIVE
REGISTERED NOTES FOR UNRESTRICTED DEFINITIVE REGISTERED NOTES OR FOR BOOK-ENTRY
INTERESTS IN INTERNATIONAL GLOBAL NOTE.
~ In connection with the Exchange (i) such Owner is not (and during
the three months preceding the Exchange was not) an Affiliate of the Issuer or
any Guarantor, (ii) at least two years have elapsed since the Owner (or any
previous transferor of such Book-Entry Interest that was not an Affiliate of
the Issuer) acquired the Notes to be exchanged from the Issuer or any Guarantor
or an Affiliate of the Issuer or any Guarantor, (iii) such Owner is permitted
under Rule 144(k) of the Act to sell all such Notes without registration under
the Act and (iv) the Note(s) are being acquired in compliance with all
applicable securities laws of any other jurisdiction.
If you are exchanging a Book-Entry Interest in a Global Note,
unless you checked either box 2 or 3 above, you will receive Definitive
Registered Notes that bear the same legends as those applicable to the Global
Notes in which you hold your Book-Entry Interests that are being exchanged. If
you are exchanging 144A Definitive Registered Notes, unless you checked either
box 2 or 3 above, you will receive a Book-Entry Interest in the U.S. Global
Note.
D-2
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer and each Guarantor.
[Insert Name of Owner]
By:________________________________________
Name:
Title:
Dated: _______________________________________
D-3
ANNEX A TO CERTIFICATE OF EXCHANGE
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a), (b) OR (c)]
(a) ~ a Book-Entry Interest held through Euroclear Account No.________ or
Clearstream Banking Account No.________, in the:
(i) ~ U.S. Global Note (ISIN XS 0184985611), or
(ii) ~ International Global Note (ISIN XS 0184985538), or
(b) ~ a 144A Definitive Registered Note; or
(c) ~ a International Definitive Registered Note.
2. After the Exchange the Owner will hold:
[CHECK ONE]
(a) ~ a Book-Entry Interest through Euroclear Account No.________ or
Clearstream Banking Account No.________, in the:
(i) ~ U.S. Global Note (ISIN XS 0184985611), or
(ii) ~ International Global Note (ISIN XS 0184985538),
(b) ~ a 144A Definitive Registered Note; or
(c) ~ a International Definitive Registered Note; or
(d) ~ an Unrestricted Definitive Registered Note.
D-4
EXHIBIT E
[FORM OF NOTATION OF GUARANTEE]
For value received, each Guarantor (which term includes any successor Person
under the Indenture) has, jointly and severally, unconditionally guaranteed, to
the extent set forth in the Indenture and subject to the provisions in the
Indenture dated as of February 9, 2004 (the "Indenture") among SGL CARBON
Luxembourg S.A., (the "Issuer"), the Guarantors party thereto and The Bank of
New York, as trustee (the "Trustee") and as security agent, (a) the due and
punctual payment of the principal of, premium, if any, and interest on, the
Notes, whether at maturity, by acceleration, redemption or otherwise, the due
and punctual payment of interest on overdue principal of and interest on the
Notes, if any, if lawful, and the due and punctual performance of all other
obligations of the Issuer to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article
11 of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Guarantee. Each Holder of a Note, by accepting the same,
(a) agrees to and shall be bound by such provisions (b) authorizes and directs
the Trustee, on behalf of such Holder, to take such action as may be necessary
or appropriate to effectuate the subordination as provided in the Indenture and
(c) appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided, however, that the Indebtedness evidenced by this Guarantee shall
cease to be so subordinated and subject in right of payment upon any defeasance
of this Note in accordance with the provisions of the Indenture.
Capitalized terms used but not defined herein have the meanings given to them
in the Indenture.
[NAME OF GUARANTOR(S)]
By:________________________________________
Name:
Title:
E-1
EXHIBIT F
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 20__, among __________________ (the "Guaranteeing
Subsidiary"), SGL CARBON Luxembourg S.A., a soci{e'}t{e'} anonyme incorporated
under the laws of the Grand Duchy of Luxembourg (the "Issuer"), the Company,
the other Guarantors (as defined in the Indenture referred to herein) and The
Bank of New York, as trustee under the Indenture referred to below (the
"Trustee") and as security agent thereunder.
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the Trustee an
indenture (the "Indenture"), dated as of February 9, 2004 providing for the
issuance of 8.5% Senior Notes due 2012 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Issuer's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized
to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the
conditions set forth in the Guarantee and in the Indenture including but
not limited to Article 11 thereof. Such guarantee may include
limitations to the extent a similar guarantee is also made to holders of
Senior Indebtedness and such guarantee includes such limitations.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the
Issuer or any Guaranteeing Subsidiary under the Notes, any Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each
Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive
liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
F-1
5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
6. COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
8. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by the Guaranteeing
Subsidiary and the Issuer.
F-2
EXHIBIT F
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture
to be duly executed and attested, all as of the date first above written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By: _______________________________
Name:
Title:
[COMPANY]
By: _______________________________
Name:
Title:
[EXISTING GUARANTORS]
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _______________________________
Authorized Signatory
THE BANK OF NEW YORK,
as Security Agent
By: _______________________________
Authorized Signatory
F-3
EXHIBIT G
ORIGINAL INTERCREDITOR AGREEMENT
(Attached)
G-1
EXHIBIT H
SECURITY TRUST AGREEMENT
(Attached)
H-1
