Exhibit 4.1
EXECUTION COPY
SANITEC INTERNATIONAL S.A.
9% SENIOR NOTES DUE 2012
--------------------------
INDENTURE
DATED AS OF MAY 7, 2002
--------------------------
THE BANK OF NEW YORK
Trustee
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions....................................................1
Section 1.02 Other Definitions.............................................26
Section 1.03 Incorporation by Reference of Trust Indenture Act.............26
Section 1.04 Rules of Construction.........................................27
ARTICLE II
THE NOTES
Section 2.01 Form and Dating...............................................28
Section 2.02 Execution and Authentication..................................29
Section 2.03 Appointment of Agents.........................................29
Section 2.04 Holders to Be Treated as Owners; Payments of Interest.........30
Section 2.05 Paying Agents to Hold Money...................................30
Section 2.06 Holder Lists..................................................31
Section 2.07 Transfer and Exchange.........................................31
Section 2.08 Replacement Notes.............................................38
Section 2.09 Outstanding Notes.............................................39
Section 2.10 Treasury Notes................................................39
Section 2.11 Temporary Notes...............................................39
Section 2.12 Cancellation..................................................40
Section 2.13 Defaulted Interest............................................40
Section 2.14 Common Code and ISIN Numbers..................................40
Section 2.15 Deposit of Moneys.............................................40
Section 2.16 Trustee's Requirements Regarding Agents.......................41
Section 2.17 Fees, Duties And Taxes........................................41
Section 2.18 Covenant of Compliance........................................41
Section 2.19 Proof.........................................................42
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee............................................42
Section 3.02 Selection of Notes to Be Redeemed.............................42
Section 3.03 Notice of Redemption..........................................42
Section 3.04 Effect of Notice of Redemption................................43
Section 3.05 Deposit of Redemption Price...................................43
Section 3.06 Notes Redeemed in Part........................................44
Section 3.07 Optional Redemption...........................................44
Section 3.08 Mandatory Redemption..........................................44
Section 3.09 Redemption for Changes on Withholding Tax.....................45
ARTICLE IV
COVENANTS
Section 4.01 Payment of Notes..............................................45
Section 4.02 Maintenance of Office or Agency...............................46
Section 4.03 Reports.......................................................46
Section 4.04 Compliance Certificate........................................47
Section 4.05 Taxes.........................................................47
Section 4.06 Stay, Extension and Usury Laws................................47
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Section 4.07 Change of Control.............................................48
Section 4.08 Asset Sales...................................................50
Section 4.09 Restricted Payments...........................................53
Section 4.10 Incurrence of Indebtedness and Issuance of Preferred Shares...55
Section 4.11 Liens.........................................................58
Section 4.12 Dividend and Other Payment Restrictions Affecting
Subsidiaries..................................................58
Section 4.13 Transactions with Affiliates..................................59
Section 4.14 Designation of Restricted and Unrestricted Subsidiaries.......60
Section 4.15 Sale and Leaseback Transactions...............................61
Section 4.16 Limitation on Issuances and Sales of Equity Interests in
Restricted Subsidiaries.......................................61
Section 4.17 Limitations on Issuances of Guarantees of Indebtedness........62
Section 4.18 Amendments to Certain Loans...................................62
Section 4.19 Repayment of Certain Loans....................................62
Section 4.20 Business Activities...........................................62
Section 4.21 Advances to Restricted Subsidiaries...........................63
Section 4.22 Payments for Consent..........................................63
Section 4.23 Liquidation of Pool Acquisition Netherlands B.V...............63
Section 4.24 Additional Amounts............................................63
Section 4.25 General Additional Covenants..................................65
ARTICLE V
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of Assets......................66
Section 5.02 Successor Corporation Substituted.............................68
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.............................................68
Section 6.02 Acceleration..................................................69
Section 6.03 Other Remedies................................................70
Section 6.04 Waiver of Past Defaults.......................................70
Section 6.05 Control by Majority...........................................70
Section 6.06 Limitation on Suits...........................................70
Section 6.07 Rights of Holders of Notes to Receive Payment.................71
Section 6.08 Collection Suit by Trustee....................................71
Section 6.09 Trustee May File Proofs of Claim..............................71
Section 6.10 Priorities....................................................72
Section 6.11 Undertaking for Costs.........................................72
Section 6.12 Prescription..................................................72
Section 6.13 Investment by Trustee.........................................72
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.............................................73
Section 7.02 Rights of Trustee.............................................73
Section 7.03 Individual Rights of Trustee..................................77
Section 7.04 Reports by Trustee to Holders.................................78
Section 7.05 Remuneration and Indemnity....................................78
Section 7.06 Replacement of Trustee........................................79
Section 7.07 Successor Trustee by Xxxxxx, Etc..............................80
Section 7.08 Eligibility; Disqualification.................................80
Section 7.09 Preferential Collection of Claims Against the Issuer..........80
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Section 7.10 Separate and Co-Trustees......................................80
Section 7.11 Trustee's Powers to be Additional.............................81
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance......81
Section 8.02 Legal Defeasance and Discharge................................81
Section 8.03 Covenant Defeasance...........................................81
Section 8.04 Conditions to Legal or Covenant Defeasance....................82
Section 8.05 Deposited Money and Government Securities to be Held
in Trust......................................................83
Section 8.06 Repayment to Issuer...........................................83
Section 8.07 Reinstatement.................................................84
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes...........................84
Section 9.02 With Consent of Holders of Notes..............................85
Section 9.03 Compliance with Trust Indenture Act...........................86
Section 9.04 Revocation and Effect of Consents.............................86
Section 9.05 Notation on or Exchange of Notes..............................86
Section 9.06 Trustee to Sign Amendments, etc...............................86
ARTICLE X
COLLATERAL AND SECURITY
Section 10.01 Pledge Agreements.............................................87
Section 10.02 Recording and Opinions........................................87
Section 10.03 Release of Collateral.........................................88
Section 10.04 Certificates of the Issuer....................................88
Section 10.05 Certificates of the Trustee...................................89
Section 10.06 Actions Under the Pledge Agreements...........................89
Section 10.07 Receipt of Funds Under the Pledge Agreements..................89
Section 10.08 Termination of Security Interest..............................89
ARTICLE XI
satisfaction and discharge
Section 11.01 Satisfaction and Discharge....................................90
Section 11.02 Application of Trust Money....................................90
ARTICLE XII
MISCELLANEOUS
Section 12.01 Trust Indenture Act Deemed to Apply and Control...............91
Section 12.02 Notices.......................................................91
Section 12.03 Communication by Holders of Notes with Other Holders
of Notes......................................................92
Section 12.04 Certificate and Opinion as to Conditions Precedent............92
Section 12.05 Statements Required in Certificate or Opinion.................93
Section 12.06 Rules by Trustee and Agents...................................93
Section 12.07 No Personal Liability of Directors, Officers, Employees
and Stockholders..............................................93
Section 12.08 Judgment Currency.............................................93
Section 12.09 Governing Law.................................................94
Section 12.10 Submission to Jurisdiction; Appointment of Agent for
Service of Process............................................94
Section 12.11 No Adverse Interpretation of Other Agreements.................94
Section 12.12 Successors....................................................94
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Section 12.13 Severability..................................................94
Section 12.14 Counterpart Originals.........................................95
Section 12.15 Table of Contents, Headings, etc..............................95
Section 12.16 Contracts (Rights of Third Parties) Act 1999..................95
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
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This INDENTURE, dated as of May 7, 2002, by and between SANITEC
INTERNATIONAL S.A., a company organized under the laws of the Grand Duchy of
Luxembourg, and having its corporate seat in Luxembourg (the "ISSUER") and THE
BANK OF NEW YORK, a banking corporation organized under the laws of the State of
New York, as Trustee (the "TRUSTEE").
The Issuer and the Trustee agree as follows for the benefit of each other
and for the equal and pro rata benefit of the Holders of the 9% Senior Notes due
2012 (the "NOTES"):
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS.
"144A DEFINITIVE REGISTERED NOTE" means a definitive Note bearing the 144A
Legend.
"144A GLOBAL NOTE" means the Global Note bearing the 144A Legend that shall
be issued in a denomination equal to the outstanding principal amount of Notes
sold in reliance on Rule 144A.
"144A LEGEND" means the legend initially set forth on the 144A Notes in the
form set forth in Section 2.07(l)(i) hereof.
"144A NOTE" means a 144A Definitive Registered Note or a 144A Global Note,
as applicable.
"ACQUIRED DEBT" 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 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 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. No Person (other than the Issuer or any
Subsidiary of the Issuer) in whom a Receivables Subsidiary makes an Investment
in connection with a Qualified Receivables Transaction shall be deemed to be an
Affiliate of the Issuer or any of its Subsidiaries solely by reason of such
Investment. 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 shall
be deemed to be control. For purposes of this definition, the terms
"controlling," "controlled by" and "under common control with" have correlative
meanings.
"APPLICABLE PROCEDURES" means, with respect to any transfer, redemption or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of either Depositary that apply to such transfer or exchange.
"APPOINTEE" means any attorney, manager, agent, delegate, nominee,
custodian or other person appointed by the Trustee under these presents.
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"ASSET SALE" means:
(1) the sale, lease, conveyance or other disposition of any assets or
rights, other than sales of inventory in the ordinary course of
business consistent with past practices; PROVIDED that the sale,
conveyance or other disposition of all or substantially all of the
assets of the Issuer and its Restricted Subsidiaries taken as a whole
shall be governed by Section 4.07 and/or Article V of this Indenture
and not by Section 4.08; and
(2) the issuance of Equity Interests by any of the Issuer's Restricted
Subsidiaries or the sale of Equity Interests in any of its
Subsidiaries.
Notwithstanding the preceding, each of the following shall not be deemed to
be Asset Sales:
(1) any single transaction or series of related transactions that involves
assets having a fair market value of less than(euro)2,000,000;
(2) the transfer of assets in the ordinary course of business between or
among the Issuer and its Restricted Subsidiaries;
(3) an issuance of Equity Interests by a Restricted Subsidiary of the
Issuer to the Issuer or to another Restricted Subsidiary of the
Issuer;
(4) the sale or lease of equipment, inventory, accounts receivable or
other assets in the ordinary course of business or the factoring of
accounts receivable arising in the ordinary course of business
pursuant to arrangements customary in the industry;
(5) the sale or other disposition of Cash Equivalents;
(6) sales of accounts receivable and related assets of the type specified
in the definition of "Qualified Receivables Transaction" to a
Receivables Subsidiary for the fair market value thereof, including
cash in an amount at least equal to 75% of the book value thereof as
determined in accordance with Finnish GAAP, it being understood that,
for the purposes of this clause (6), notes received in exchange for
the transfer of accounts receivable and related assets shall be deemed
cash if the Receivables Subsidiary or other payor is required to repay
such notes as soon as practicable from available cash collections LESS
amounts required to be established as reserves pursuant to contractual
agreements with entities that are not Affiliates of the Issuer entered
into as part of a Qualified Receivables Transaction;
(7) transfers of accounts receivable and related assets of the type
specified in the definition of "Qualified Receivables Transaction" (or
a fractional undivided interest therein) by a Receivables Subsidiary
in a Qualified Receivables Transaction;
(8) a Restricted Payment or Permitted Investment that is permitted by
Section 4.09;
(9) the licensing of intellectual property in the ordinary course of
business;
(10) a Permitted Governmental Asset Swap; and
(11) sales or other dispositions of obsolete, worn out or otherwise
unsuitable assets or excess equipment in the ordinary course of
business.
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"ATTRIBUTABLE DEBT" 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 Finnish GAAP.
"BANKRUPTCY LAW" means: (i) any bankruptcy, insolvency or other similar
statute (including, without limitation, the Luxembourg Commercial Code and the
Luxembourg Law on Commercial Companies of 10th August 1915, as amended, and any
similar statute), regulation or provision of any jurisdiction in which the
Issuer is organized or conducting business; (ii) Title 11 of the U.S. Code or
any similar United States Federal, state or foreign law for the relief of
creditors; or (iii) any other law of any country or political subdivision
thereof or any other jurisdiction relating to bankruptcy, insolvency, winding
up, liquidation, administration or analogous proceeding, reorganisation or
relief of debtors to which the Issuer becomes subject as a result of a filing or
petition for relief by the Issuer or a filing by any creditor or other party in
interest; in each case, including any substitute or replacement as may become
law from time to time.
"BC FUNDS" means BC European Capital VI-1, BC European Capital VI-2, BC
European Capital VI-3, BC European Capital VI-4, BC European Capital VI-5, BC
European Capital VI-6, BC European Capital VI-7, BC European Capital VI-8, BC
European Capital VI-9, BC European Capital VI-10, BC European Capital VI-11, BC
European Capital VI-12, BC European Capital VI-14, BC European Capital V-1, BC
European Capital V-2, BC European Capital V-3, BC European Capital V-4, BC
European Capital V-5, BC European Capital V-6, and any BC European Capital VII
fund, in each case, organized under the laws of Guernsey, Channel Islands and
legally represented by CIE Management II Ltd.
"BENEFICIAL OWNER" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the US 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 US Exchange Act), such "person" shall be deemed to 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 upon the occurrence of a subsequent
condition. The terms "Beneficially Owns" and "Beneficially Owned" have a
corresponding meaning.
"BOARD OF DIRECTORS" means:
(1) with respect to a corporation or a company, the board of directors
(generally elected by shareholders to supervise or manage the affairs
of the company);
(2) with respect to a partnership, the general partner of the partnership,
or, as the case may be, the Board of Directors of the general partner
of the partnership; and
(3) with respect to any other Person, the board or committee of such
Person serving a similar function.
"BORROWING BASE" means, as of any date, an amount equal to:
(1) 80% of the face amount of all accounts receivable owned by the Issuer
and its Restricted Subsidiaries (other than accounts receivable owned
by a Receivables Subsidiary) as of the end of the most recent fiscal
quarter preceding such date that were not more than 90 days past due;
PLUS
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(2) 60% of the book value of all inventory owned by the Issuer and its
Restricted Subsidiaries as of the end of the most recent fiscal
quarter preceding such date; MINUS
(3) the aggregate amount of trade payables of the Issuer and its
Restricted Subsidiaries outstanding as of the end of the most recent
fiscal quarter preceding such date,
all calculated on a consolidated basis and in accordance with Finnish GAAP.
"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 in accordance with
Finnish GAAP.
"CASH EQUIVALENTS" means:
(1) cash issued by a country of Western Europe or by the United States of
America;
(2) direct obligations (or certificates representing an interest in such
obligations) of a country of Western Europe or of the United States of
America (including any agency or instrumentality thereof), as the case
may be, for the payment of which the full faith and credit of the
applicable Western European country or the United States of America,
as the case may be, is pledged and which are not callable or
redeemable at the issuer's option;
(3) time deposit accounts, certificates of deposit and money market
deposits with maturities of six months or less from the date of
acquisition issued by a bank or trust company which is organized under
the laws of a Western European state or of the United States of
America or any state thereof; PROVIDED that such bank or trust company
has capital, surplus and undivided profits aggregating in excess of
(euro)500,000,000 (or the foreign currency equivalent thereof as of
the date of such investment) and whose long-term debt is rated "A-" or
higher by Xxxxx'x Investors Service, Inc. or "A-1" (or higher) by
Standard and Poor's Ratings Group or the equivalent rating category or
another internationally recognized rating agency;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (2) and (3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation or a company (other than an
Affiliate of the Issuer) organized and in existence under the laws of
any Western European state or of the United States of America with a
rating as of the time the investment is made of "P-1" or higher
according to Xxxxx'x Investors Service, Inc. or "A-1" or higher
according to Standard & Poor's Ratings Group;
(6) securities with maturities of less than six months from the date of
acquisition issued or fully guaranteed by any Western European
country, or by any political subdivision or taxing authority thereof,
or by any state, commonwealth or territory of the United States of
America, or by any political subdivision or taxing authority thereof,
and rated at least
4
"A" or the equivalent thereof by both Xxxxx'x Investors Service, Inc.
and Standard & Poor's Rating Services; and
(7) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (6) of this
definition.
"CHANGE OF CONTROL" means the occurrence of any of the following:
(1) prior to the first Public Equity Offering, the Principals cease to be
the Beneficial Owner, directly or indirectly, of a majority in the
aggregate of the total voting power of the Voting Stock of any of the
Parent, GermanCo or the Issuer, whether as a result of issuance of
securities of the Parent, GermanCo or the Issuer, any merger,
amalgamation, consolidation, liquidation or dissolution of the Parent,
GermanCo or the Issuer, or any direct or indirect transfer of
securities by a Principal or otherwise;
(2) on and at any time after the first Public Equity Offering (a) any
Person, other than one or more Principals, is or becomes the
Beneficial Owner, directly or indirectly, of more than 35% of the
total voting power of the Voting Stock of such of the Parent, GermanCo
or the Issuer whose Share Capital was issued in the Public Equity
Offering and (b) that the Principals Beneficially Own, directly or
indirectly, in the aggregate a lesser percentage of the total voting
power of the Voting Stock of such company than such other Person and
do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board
of Directors of such company;
(3) after the first Public Equity Offering, individuals who on the Issue
Date constituted the Board of Directors of such of the Parent,
GermanCo or Issuer whose Share Capital was issued in the Public Equity
Offering elected by the holders of the Voting Stock (together with any
new members whose election or nomination by the such Board of
Directors was approved by a vote of 66 2/3% of the members of the such
Board of Directors then still in office who were either members of the
such Board of Directors on the Issue Date or whose election or
nomination for election was either previously so approved) cease for
any reason to constitute a majority of such company's Board of
Directors then in office;
(4) the merger, amalgamation or consolidation of the Issuer with or into
another Person or the merger or amalgamation of another Person with or
into the Issuer, or the sale of all or substantially all the assets of
the Issuer and its Restricted Subsidiaries taken as a whole to another
Person (other than, in all such cases, a Person that is controlled by
the Principals), other than a transaction following which (a) in the
case of a merger, amalgamation or consolidation transaction,
securities that represented 100% of the Voting Stock of the Issuer
immediately prior to such transaction (or other securities into which
such securities are converted as part of such merger, amalgamation or
consolidation transaction) constitute directly or indirectly at least
a majority of the voting power of the Voting Stock of the surviving
Person in such merger, amalgamation or consolidation transaction, and
(b) in the case of a sale of assets transaction, the transferee Person
becomes the obligor in respect of the Notes and a Restricted
Subsidiary of the transferor of such assets; or
(5) (a) except following a Public Equity Offering in which the Share
Capital of either GermanCo or the Issuer is issued in the Public
Equity Offering, the failure at any time of the Parent to directly own
100% of the Voting Stock of GermanCo (other than 6.7% of the Voting
Stock of GermanCo issued after the Issue Date to certain employees);
(b) except following a Public Equity Offering in which the Share
Capital of the Issuer is issued in the Public Equity Offering, the
failure at any time of GermanCo to directly own
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100% of the Voting Stock of the Issuer; and (c) except until the
liquidation and dissolution of Pool Acquisition Netherlands B.V. (in
liquidation), the failure at any time of the Issuer to directly own
100% of the Voting Stock of Sanitec.
"CLEARSTREAM BANKING" means Clearstream Banking, societe anonyme.
"COMMON DEPOSITARY" means The Bank of New York, London Branch.
"CONSOLIDATED COVERAGE RATIO" means with respect to any specified Person
for any period, the ratio of (1) the aggregate amount of EBITDA of such Person
for such period to (2) the Consolidated Interest Expense of such Person for such
period; PROVIDED, HOWEVER, that:
(A) if the specified Person or any of its Restricted Subsidiaries incurs,
assumes, Guarantees, repays, repurchases or redeems any Indebtedness
(other than ordinary working capital borrowings) or issues,
repurchases or redeems Preferred Shares subsequent to the commencement
of the period for which the Consolidated Coverage Ratio is being
calculated and on or prior to the date of determination for which the
calculation of the Consolidated Coverage Ratio is made, then the
Consolidated Coverage Ratio shall be calculated giving pro forma
effect to such incurrence, assumption, Guarantee, repayment,
repurchase or redemption of Indebtedness, or such issuance, repurchase
or redemption of Preferred Shares, and the use of the proceeds
therefrom as if the same had occurred at the beginning of the
applicable four-quarter reference period;
(B) if since the beginning of such period the specified Person or any
Restricted Subsidiary has made any Asset Sale, the EBITDA for such
period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the assets which are the subject of such
Asset Sale for such period, or increased by an amount equal to the
EBITDA (if negative) directly attributable thereto for such period,
and Consolidated Interest Expense for such period shall be reduced by
an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the specified Person or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise
discharged with respect to the specified Person and its continuing
Restricted Subsidiaries in connection with such Asset Sale for such
period (or, if the Share Capital of any Restricted Subsidiary is sold,
the Consolidated Interest Expense for such period directly
attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Issuer and its continuing Restricted Subsidiaries are no
longer liable for such Indebtedness after such sale), in either case
as if such Asset Sale had occurred on the first day of such period;
(C) if since the beginning of such period the specified Person or any
Restricted Subsidiary (by merger, amalgamation or otherwise) has made
an Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary) or any acquisition of assets,
including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, EBITDA and
Consolidated Interest Expense for such period shall be calculated
after giving pro forma effect thereto (including the incurrence of any
Indebtedness);. and
(D) if since the beginning of such period any other Person (that
subsequently became a Restricted Subsidiary or was merged with or into
the Issuer or any Restricted Subsidiary since the beginning of such
period) has made any Asset Sale or any Investment or acquisition of
assets requiring an adjustment pursuant to clauses (B) or (C) above if
made by the Issuer or a Restricted Subsidiary during such period,
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto
6
as if such Asset Sale, Investment or acquisition of assets occurred on
the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given
to an Investment or an acquisition of assets, the amount of income or earnings
relating thereto and the amount of Consolidated Interest Expense associated with
any Indebtedness incurred in connection therewith, the pro forma calculations
shall be determined in good faith by the chief financial officer, or, in the
absence of such an officer, by an officer of the Issuer with senior
responsibility for financial or accounting matters. If any Indebtedness bears a
floating rate of interest and is being given pro forma effect, the interest
expense on such Indebtedness shall be calculated as if the rate in effect on the
date of determination 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 date of determination in
excess of 12 months). For purposes of this definition, whenever pro forma effect
is to be given to any Indebtedness incurred pursuant to a revolving credit
facility, the amount outstanding on the date of such calculation shall be
computed based on (1) the average daily balance of such Indebtedness during such
four fiscal quarters or such shorter period for which such facility was
outstanding or (2) if such facility was created after the end of such four
fiscal quarters, the average daily balance of such Indebtedness during the
period from the date of creation of such facility to the date of such
calculation.
"CONSOLIDATED INDEBTEDNESS" means, with respect to any Person as of any
date of determination, the sum, without duplication, of (i) the total amount of
Indebtedness of such Person and its Restricted Subsidiaries, PLUS (ii) the total
amount of Indebtedness of any other Person, to the extent that such Indebtedness
has been Guaranteed by such Person or one or more of its Restricted
Subsidiaries, PLUS (iii) the aggregate liquidation value of all Disqualified
Shares of such Person and all Preferred Shares of Restricted Subsidiaries of
such Person, in each case, determined on a consolidated basis in accordance with
Finnish GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the sum of:
(1) the total interest expense of the Issuer and its consolidated
Restricted Subsidiaries plus, to the extent not otherwise included in
such interest expense (without duplication), and to the extent
incurred by the Issuer or its consolidated Restricted Subsidiaries:
(A) interest expense attributable to Capital Lease Obligations, the
interest expense attributable to leases constituting part of a
sale and leaseback transaction and the interest portion of rent
expense associated with Attributable Debt in respect of the
relevant lease giving rise thereto, determined as if such lease
were a capitalized lease in accordance with Finnish GAAP and the
interest component of any deferred payment obligations;
(B) amortization of debt discount but not debt issuance costs;
(C) non-cash interest expense (other than in respect of Subordinated
Shareholder Indebtedness);
(D) amortization of commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing;
(E) interest accruing on any Indebtedness of any other Person to the
extent such Indebtedness is Guaranteed by (or secured by the
assets of) the Issuer or any such Restricted Subsidiary;
7
(F) net costs associated with Hedging Obligations (excluding
amortization of fees paid at the time or entering into such
Hedging Obligations); PLUS
(2) the product of (a) all dividends, whether paid or accrued and whether
or not in cash, on any series of Preferred Shares of a Person or any
of its Restricted Subsidiaries payable to a Person other than the
Issuer or a Restricted Subsidiary, other than dividends on Equity
Interests payable solely in Equity Interests (other than Disqualified
Shares) of the Issuer or to the Issuer or a Restricted Subsidiary of
the Issuer, times (b) a fraction, the numerator of which is one and
the denominator of which is one minus then current combined national,
regional and local statutory tax rate of such Person, expressed as a
decimal, in each case, on a consolidated basis and in accordance with
Finnish GAAP; PLUS
(3) cash contributions to any employee stock ownership plan or other trust
for the benefit of employees to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person (other
than the Issuer and its Restricted Subsidiaries) in connection with
Indebtedness incurred by such plan or trust to purchase Share Capital
of the Issuer.
"CONSOLIDATED NET INCOME" means, for any period for any Person, the net
income (loss) of such Person and its consolidated Subsidiaries determined in
accordance with Finnish GAAP; provided, however, that there shall not be
included in determining such Consolidated Net Income:
(1) any net income (or loss) of any Person if such Person is not a
Restricted Subsidiary or if such Person is accounted for by the equity
method of accounting, except that subject to the limitations contained
in Clause (3), (4) and (5) below, the Issuer's equity in the net
income of any such Person for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash distributed
by such Person during such period to the Issuer or a Restricted
Subsidiary as a dividend or other distribution (subject, in the case
of a dividend or other distribution to a Restricted Subsidiary, to the
limitations contained in clause (2) below);
(2) any net income (or loss) of any Restricted Subsidiary if at the date
of determination the making of distributions or the payment of
dividends by such Restricted Subsidiary are not permitted without any
prior governmental approval (that has not been obtained) or, directly
or indirectly, by operation of the terms of its charter or other
organizational document or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to
that Restricted Subsidiary or its stockholders (other than pursuant to
the Credit Agreement or any Credit Facility permitted by subsections
(1) or (2) of the second paragraph of Section 4.10 except:
(A) subject to the limitations contained in Clause (3), (4) and (5)
below, the Issuer's equity in the net income of any such
Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash
distributed by such Restricted Subsidiary during such period to
the Issuer or a Restricted Subsidiary as a dividend or other
distribution (subject, in the case of a dividend to a Restricted
Subsidiary, to the limitation contained in this clause); and
(B) the Issuer's equity in a net loss of any such Restricted
Subsidiary for such period shall be included in determining such
Consolidated Net Income;
(3) any gain (but not loss), together with any related provision for taxes
on such gain (but not loss), realized upon (i) an Asset Sale or other
sale or other disposition of any assets of the
8
Issuer, its consolidated Restricted Subsidiaries or any other Person
(including pursuant to any sale and leaseback transaction) which is
not sold or otherwise disposed of in the ordinary course of business,
(ii) the sale or other disposition of any securities of any Person not
sold or otherwise disposed of in the ordinary course of business or
(iii) the extinguishment of any Indebtedness of any Person;
(4) any extraordinary gain (but not loss), together with any related
provision for taxes on such extraordinary gain (but not loss);
(5) the cumulative effect of a change in accounting principles,
(6) to the extent reflected in net income, the fees, expenses and other
costs incurred in the Transactions (as defined in the Issuer's
Offering Circular dated April 30, 2002);
(7) to the extent reflected in net income, the effect of any non-cash
items resulting from any amortization, write-up, write-down or
write-off of assets of the Issuer or any Restricted Subsidiary in
connection. with the Transactions or any future acquisition; and
(8) to the extent deducted in determining net income (loss) of the Issuer
and its consolidated Subsidiaries in accordance with Finnish GAAP,
amounts representing accruals of interest on the Subordinated
Shareholder Indebtedness shall be added back.
"CORPORATE TRUST OFFICE OF THE TRUSTEE" shall be at the address of the
Trustee specified in Section 12.02 hereof or such other address as to which the
Trustee may give notice to the Issuer.
"CREDIT AGREEMENT" means that certain Senior Multicurrency Term Loan and
Revolving Credit Facilities Agreement, dated as of April 26, 2001, by and among
Pool Acquisition Helsinki Oy, Pool Financing Helsinki Oy, Bayerische Hypo- und
Vereinsbank AG, as arranger and underwriter, Bayerische Hypo- und Vereinsbank
AG, London Branch, as fronting bank, and Bayerische Hypo- und Vereinsbank AG,
London Branch, as facility agent and security agent, among others, providing for
term loan and revolving credit borrowings, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, and in each case with the related documents thereto
(including the term loans and revolving loans thereunder, any guarantees and
security documents related thereto granted by any relevant Person), 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 refinance, in whole or in part, the
borrowings and commitments then outstanding or permitted to be outstanding under
such Credit Agreement or a successor credit agreement, whether by the same or
any other lender or group of lenders.
"CREDIT FACILITIES" means, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities or indentures
or trust deeds or note purchase agreements, providing for revolving credit
loans, term loans, receivables financing (other than Qualified Receivables
Transactions), letters of credit, bonds, notes or other corporate debt
instruments, in each case, as such facilities, indentures, debentures, deeds,
agreements or instruments are amended, restated, modified, renewed, refunded,
replaced or refinanced 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 any Note registered in the Register,
substantially in the form of which is attached as EXHIBIT B hereto.
9
"DEPOSITARY" means any of Euroclear, Clearstream Banking and their
respective nominees and successors, acting through itself or the Common
Depositary.
"DISQUALIFIED SHARES" means any Share Capital 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 Share Capital), 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 Share Capital, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Share Capital that would constitute Disqualified Shares
solely because the holders of the Share Capital have the right to require the
Issuer to repurchase such Share Capital upon the occurrence of a change of
control or an asset sale shall not constitute Disqualified Shares if the terms
of such Share Capital provide that the Issuer may not repurchase or redeem any
such Share Capital pursuant to such provisions unless such repurchase or
redemption complies with Section 4.09.
"EBITDA" means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period PLUS:
(1) the following to the extent deducted in calculating such Consolidated
Net Income:
(A) all income tax expense, and, in Germany, municipal trade tax,
solidarity surcharge tax and company tax, and, in the United
Kingdom, company tax (including unrelieved surplus advance
company tax) and, in each case, their equivalents in any relevant
jurisdiction or any other tax on income of the Issuer and its
consolidated Restricted Subsidiaries;
(B) Consolidated Interest Expense;
(C) depreciation expense and amortization expense of the Issuer and
its Restricted Subsidiaries;
(D) all other non-cash charges or costs of the Issuer and its
Restricted Subsidiaries reducing Consolidated Net Income
(excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any
future period) less all non-cash items increasing Consolidated
Net Income (excluding the reversal of any accrual or reserve
referred to in the preceding parenthetical);
(E) the sum of (i) any non-cash losses, costs, charges or expenses
attributable to the translation to Euro of non-Euro amounts in
preparing the financial statements of the Issuer less (ii) any
non-cash gains or income attributable to the translation to Euro
of non-Euro amounts in preparing the financial statements of the
Issuer (and if such sum is a negative number, it shall be
subtracted from Consolidated Net Income in order to determine
EBITDA); and
(F) an amount equal to any extraordinary loss plus any net loss
realized by such Person or any of its Subsidiaries in connection
with an Asset Sale or other sale or disposition, the sale or
other disposition of securities not sold in the ordinary course
of business or the extinguishment of any Indebtedness of any
Person;
(G) without duplication of any amount included elsewhere in this
definition of "EBITDA", the amount of any deduction from profit
(to the extent actually
10
deducted) for such period attributable to non-cash pension costs
recorded as interest under Finnish GAAP; and
(2) to the extent not included in Consolidated Net Income for the period
or any prior period, and without duplication of any amount included
elsewhere in this definition of "EBITDA" the proceeds of any claim
under any insurance policy to the extent this relates solely to
compensation for loss of profits and/or business interruption, in each
case for such period.
Notwithstanding the foregoing, paragraphs (B) through (F) of clause (1) and
clause (2) relating to amounts of a Restricted Subsidiary shall be added to
Consolidated Net Income to compute EBITDA only to the extent (and in the same
proportion) that the net income (loss) of such Restricted Subsidiary was
included in calculating Consolidated Net Income.
"EQUITY INTERESTS" means Share Capital and all warrants, options or other
rights to acquire Share Capital (but excluding any debt security that is
convertible into, or exchangeable for, Share Capital).
"EURO" or "(euro)" means the currency introduced at the start of the third
stage of the European economic and monetary union pursuant to the Treaty
establishing the European Community, as amended by the Treaty on European Union.
"EUROCLEAR" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
"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 NOTES" means the Notes registered under the US Securities Act in
exchange for the Notes issued in this offering pursuant to the terms of this
Indenture.
"EXISTING INDEBTEDNESS" means the aggregate principal amount of
Indebtedness of the Issuer and its Restricted Subsidiaries (other than
Indebtedness under the Credit Agreement and the Notes) in existence on the Issue
Date, until such amounts are repaid.
"FINNISH GAAP" means generally accepted accounting principles applicable in
Republic of Finland, as such principles are amended and modified from time to
time. All ratios and computations contained in this Indenture shall be
calculated in conformity with Finnish GAAP.
"GERMANCO" means Sanitec International AG, a company that will become the
direct parent company of the Issuer.
"GLOBAL NOTE(S)" means one or more registered global Notes, without
coupons, substantially in the form of EXHIBIT A attached hereto.
"GOVERNMENT SECURITIES" means direct obligations of, obligations fully
guaranteed by, or participations in pools consisting solely of obligations of or
obligations guaranteed by, any country of the European Union that uses the Euro
as its currency and participated in the third stage of the European economic and
monetary union for the payment of which guarantee of obligations the full faith
and credit of any country of the European Union that uses the Euro as its
currency and participated in the third stage of the European economic and
monetary union is pledged and which are not callable or redeemable at the option
of the issuer thereof.
11
"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.
"HEDGING OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person under interest rate swap agreements, interest rate
cap agreements, interest rate collar agreements, foreign currency exchange
agreements, commodity price protection agreements and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates, foreign currency exchange rates and commodity prices.
"HOLDER" means a Person in whose name a Note is registered in the Register.
"INDEBTEDNESS" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures, promissory notes, loan
agreements or similar instruments or letters of credit (other than
obligations with respect to letters of credit securing obligations
entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such drawing is reimbursed no later than the tenth
Business Day following payment on the letter of credit)(or
reimbursement agreements in respect thereof);
(3) in respect of bankers' acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of
any property, except any such balance that constitutes an accrued
expense or trade payable;
(6) representing any Hedging Obligations; or
(7) representing the maximum fixed repurchase price of Disqualified
Shares;
if and to the extent any of the preceding items (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with Finnish GAAP. 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.
Notwithstanding the foregoing, in connection with the purchase by the
Issuer or any Restricted Subsidiary of any business, the term "Indebtedness"
shall exclude post-closing payment adjustments to which the seller may become
entitled to the extent such payment is determined by a final closing balance
sheet or such payment depends on the performance of such business after the
closing; provided, however, that, at the time of closing, the amount of any such
payment is not determinable and, to the extent such payment thereafter becomes
fixed and determined, the amount is paid within 30 days thereafter.
12
The amount of any Indebtedness outstanding as of any date shall be:
(1) in the case of any Indebtedness issued with original issue discount,
the accreted value of the Indebtedness; and
(2) in the case of any other Indebtedness, the principal amount of the
Indebtedness, together with any interest on the Indebtedness that is
more than 30 days past due.
"INDENTURE" means this Indenture, as amended or supplemented from time to
time.
"INDIRECT PARTICIPANT" means a Person who holds a Book-Entry Interest in a
Global Note through a Participant.
"INITIAL NOTES" means the first (euro)260,000,000 aggregate principal
amount of Notes issued under this Indenture on the Issue Date.
"INTEREST PAYMENT DATE" means the stated maturity of an installment of
interest on the Notes.
"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), 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 Finnish GAAP. If the
Issuer or any Subsidiary of the Issuer sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Issuer such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Issuer, the Issuer shall be deemed to have made an Investment
on the date of any such sale or disposition equal to the fair market value of
the Issuer's Investments in such Subsidiary that were not sold or disposed of in
an amount determined as provided in the final paragraph of Section 4.09. The
acquisition by the Issuer or any Subsidiary of the Issuer of a Person that holds
an Investment in a third Person shall be deemed to be an Investment by the
Issuer or such Subsidiary in such third Person in an amount equal to the fair
market value of the Investments held by the acquired Person in such third Person
in an amount determined as provided in the final paragraph of Section 4.09.
"ISSUE DATE" means the date on which the Notes are first originally issued.
"ISSUER" means the party named as such in the preamble to this Indenture
and any and all successors thereto.
"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.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which banking
institutions in the City of London or at a place of payment are authorized by
law, regulation or executive order to remain closed. 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.
"LEVERAGE RATIO" means, as of any date of determination, the ratio of (a)
the Consolidated Indebtedness of the Issuer as of such date to (b) the EBITDA of
the Issuer for the four most recent full fiscal quarters ending immediately
prior to such date for which internal financial statements are available.
13
In addition, for purposes of calculating the Leverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its
Restricted Subsidiaries, including through mergers or consolidations
and including any related financing transactions, during the
four-quarter reference period or subsequent to such reference period
and on or prior to the date of determination shall be given pro forma
effect as if they had occurred on the first day of the four-quarter
reference period and EBITDA for such reference period shall be
calculated on a pro forma basis, but without giving effect to clause
(3) of the proviso set forth in the definition of Consolidated Net
Income;
(2) the EBITDA attributable to discontinued operations, as determined in
accordance with Finnish GAAP, and operations or businesses disposed of
prior to the date of determination, shall be excluded; and
(3) in the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, Guarantees, repays, repurchases or
redeems any Indebtedness (other than ordinary working capital
borrowings) or issues, repurchases or redeems Preferred Shares
subsequent to the commencement of four-quarter reference period and on
or prior to the determination date, then the Leverage Ratio shall be
calculated giving pro forma effect to such incurrence, assumption,
Guarantee, repayment, repurchase or redemption of Indebtedness, or
such issuance, repurchase or redemption of Preferred Shares, and the
use of the proceeds therefrom as if the same had occurred at the
beginning of the applicable four-quarter reference period.
"LIABILITY" means any loss, damage, cost, charge, claim, demand, expense,
judgment, action, proceeding or other liability whatsoever (including, without
limitation, in respect of taxes (other than withholding taxes and taxes on
overall net income), duties, levies, imposts and other like charges) and
including any value added tax or similar tax charged or chargeable in respect
thereof and legal fees and expenses on a full indemnity basis.
"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 any asset (except in connection with any Qualified Receivables
Transaction) and any filing of or agreement to give any financing statement
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"MATURITY DATE" means May 15, 2012.
"NET PROCEEDS" means (a) with respect to any Asset Sale, the aggregate cash
proceeds received by the Issuer or any of its Restricted Subsidiaries in respect
of such 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, title and recording expenses, 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 amounts required to be applied
to the repayment of Indebtedness (other than Indebtedness under the Credit
Agreement) secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any reserve for adjustment in respect of the sale price of
such asset or assets established in accordance with Finnish GAAP, or (b) with
respect to any issuance or sale of Share Capital, the proceeds of such issuance
or sale in the form of Cash Equivalents, including payments in respect of
deferred payment
14
obligations (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Issuer or
any Restricted Subsidiary), net of attorney's fees, accountants' fees,
underwriters or placements agents' fees, discounts or commissions and brokerage,
consultant and other fees incurred in connection with such issuance or sale and
net of taxes paid or payable as a result of such issuance or sale.
"NON-RECOURSE DEBT" means Indebtedness:
(1) as to which neither the Issuer 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 (other than the
Notes) of the Issuer 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
(except for any such right that would arise pursuant to Existing
Indebtedness or Credit Facilities including any refinancing in respect
thereof permitted by this Indenture); and
(3) as to which the lenders have been notified in writing that they shall
not have any recourse to the stock or assets of the Issuer or any of
its Restricted Subsidiaries.
"NOTES" has the meaning assigned to it in the preamble to this Indenture
and includes the Initial Notes, the Exchange Notes and the Additional Notes. The
Initial Notes, the Exchange Notes and the Additional Notes shall be treated as a
single class for all purposes under this Indenture.
"NOTES ON-LOAN" means that certain loan agreement, dated as of the Issue
Date, by and between the Issuer and Xxxxxxx, pursuant to which the proceeds of
the Notes are on-lent by the Issuer to Sanitec, as such loan agreement is
amended, modified, renewed, refunded, replaced or refinanced from time to time.
"NOTES SECURITY PLEDGE AGREEMENT" means that certain deed of pledge, dated
as of the Issue Date, by and between the Issuer and the Trustee, who shall act
as collateral agent for the Holders of the Notes, pursuant to which, among other
things, (1) the Share Capital of Sanitec are pledged on a second priority basis
and (2) the Notes On-Loan, the PIK On-Loan 2 and the Shareholder On-Loan 2 are
be pledged on a first priority basis, to secure the payment and performance when
due of the Obligations under this Indenture and the Notes.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER" means, with respect to any Person, the Chairman, the Deputy
Chairman, the Chief Executive Officer, the President, a Managing Director, the
Chief Operating Officer, the Chief Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the Secretary, any Vice-President or any
member of the Board of Directors which assumes such responsibilities
traditionally associated with any of the above of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the Issuer
by two Officers of such entity, one of whom must be the Chairman of the Board,
the principal executive officer, the principal
15
financial officer, the treasurer or the principal accounting officer of the
Issuer that meets the requirements of Section 12.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section 12.05 hereof.
The counsel may be an employee of or counsel to the Issuer or any Subsidiary of
the Issuer.
"PARALLEL DEBT" shall have the meaning assigned to such term in the Pool
Acquisition Pledge Agreement.
"PARENT" means Pool Acquisition S.A., a company organized under the laws of
Luxembourg and the direct parent company of GermanCo, which in turn is the
direct parent of the Issuer.
"PARTICIPANT" means a Person who has an account with Euroclear or
Clearstream Banking.
"PAYING AGENCY AGREEMENT" means a paying agency agreement, dated the Issue
Date, among the Issuer, Trustee, the Principal Paying Agent, the Registrar and
the Paying Agents, as amended and/or supplemented from time to time.
"PERMITTED BUSINESS" means any business in which the Issuer or any of its
Restricted Subsidiaries were engaged in as of the Issue Date and any business
related, ancillary or complimentary to any such business in which the Issuer or
any of its Restricted Subsidiaries was engaged in as of the Issue Date.
"PERMITTED GOVERNMENTAL ASSET SWAP" means the concurrent exchange of assets
between any of the Issuer's Restricted Subsidiaries and a municipality or other
local or national government or a Person wholly-owned by a municipality or other
local or national government if: (1) the assets acquired in the exchange
constitute, or may be used in, a Permitted Business; (2) the Issuer or the
Restricted Subsidiary, as the case may be, receives assets at the time of the
exchange at least equal to the fair market value of the assets transferred in
the exchange; (3) the fair market value of the assets received in the exchange
and transferred in the exchange is determined in good faith by the Issuer's
Board of Directors and evidenced by a resolution of the Issuer's Board of
Directors set forth in an Officers' Certificate delivered to the Trustee; and
(4) if the assets received in the exchange consist of securities of a Person,
such Person would as a result of the exchange become a Wholly-Owned Restricted
Subsidiary of the Issuer.
"PERMITTED INVESTMENTS" means:
(1) any Investment in the Issuer or in any Restricted Subsidiary of the
Issuer;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Issuer or any Restricted Subsidiary of the
Issuer in a Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Issuer; 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 Issuer or a Restricted Subsidiary of the Issuer;
(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 4.08;
16
(5) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Shares) of the Issuer;
(6) receivables owing to the Issuer or any Restricted Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; PROVIDED,
HOWEVER, that such trade terms may include such concessionary trade
terms as the Issuer or any such Restricted Subsidiary deems reasonable
under the circumstances;
(7) any Investments received in compromise of obligations of such persons
incurred in the ordinary course of trade creditors or customers that
were incurred in the ordinary course of business, including pursuant
to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer;
(8) Hedging Obligations otherwise permitted to be incurred pursuant to
Section 4.10;
(9) the acquisition by a Receivables Subsidiary in connection with a
Qualified Receivables Transaction of Equity Interests of a trust or
other Person established by such Receivables Subsidiary to effect such
Qualified Receivables Transaction; and any other Investment by the
Issuer or a Restricted Subsidiary of the Issuer in a Receivables
Subsidiary or any Investment by a Receivables Subsidiary in any other
Person in connection with a Qualified Receivables Transaction,
PROVIDED that such other Investment is in the form of a note or other
instrument that the Receivables Subsidiary or other Person is required
to repay as soon as practicable from available cash collections less
amounts required to be established as reserves pursuant to contractual
agreements with entities that are not Affiliates of the Issuer entered
into as part of a Qualified Receivables Transaction;
(10) the acquisition of shares in Keramag Keramische Werke AG, Sanitec Kolo
Sp. Z.o.o., Sanitec International S.A., Polyroc S.A., Koralle
International GmbH, Allia S.A., Omnium de Distribution Sanitaires
Sp.Zo.o, Murena S.A. or Sphinx Gustavsberg Wroclaw Sp.z.o.o. not owned
by the Issuer or any Restricted Subsidiary for a price that does not
exceed the fair market value of such shares, as determined in good
faith by the Issuer's Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee; and
(11) other Investments in any Person having an aggregate fair market value
(measured on the date each such Investment was made), when taken
together with all other Investments made pursuant to this clause (in
each case measured on the date each such Investment was made and
without giving effect to subsequent changes in value), not to exceed
(euro)25,000,000.
"PERMITTED LIENS" means:
(1) Liens securing Indebtedness under the Credit Agreement and
Indebtedness under any Credit Facility incurred pursuant to clauses
(1) or (2) of the second paragraph of Section 4.10;
(2) Liens in favor of the Issuer;
(3) Liens on property of a Person existing at the time such Person is
merged with or into or consolidated with the Issuer or any Restricted
Subsidiary of the Issuer; PROVIDED that such Liens were in existence
prior to the contemplation of such merger or consolidation and do
17
not extend to any assets other than those of the Person merged into or
consolidated with the Issuer or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of the property
by the Issuer or any Restricted Subsidiary of the Issuer, PROVIDED
that such Liens were in existence prior to the contemplation of such
acquisition;
(5) Liens to secure Indebtedness (including Capital Lease Obligations)
permitted by clause (5) of the second paragraph of Section 4.10
covering only the assets acquired with such Indebtedness;
(6) Liens existing on the Issue Date (including the extension, re-issuance
or renewal of such Liens in connection with Permitted Refinancing
Indebtedness);
(7) Liens on assets of Unrestricted Subsidiaries that secure Non-Recourse
Debt of Unrestricted Subsidiaries; and
(8) Liens on assets of the Issuer or a Receivables Subsidiary incurred in
connection with a Qualified Receivables Transaction
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the Issuer
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Issuer 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
extended, refinanced, renewed, replaced, defeased or refunded (plus
all accrued interest on the Indebtedness) and the amount of all
expenses and 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 extended, refinanced, renewed,
replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes
or to any of the PIK On-Loan 2 and the Shareholder On-Loan 2, such
Permitted Refinancing Indebtedness has a final maturity date later
than the final maturity date of, and is subordinated in right of
payment to, the Notes or the PIK On-Loan 2 and the Shareholder On-Loan
2, as the case may be, on terms at least as favorable to the Holders
as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded;
and
(4) such Indebtedness is incurred either by the Issuer or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or governmental or other entity.
18
"PIK LOAN" means that certain (euro)60,000,000 PIK Loan Agreement, dated
December 20, 2001, by and between Pool Sub-Financing Helsinki Oy and Bayerische
Hypo- und Vereinsbank AG, the obligations of which have been assumed by the
Parent, as such loan agreement is amended, modified, renewed, refunded, replaced
or refinanced from time to time.
"PIK ON-LOAN 1" means that certain loan agreement, by and between the
Parent and the Issuer, pursuant to which the proceeds of the PIK Loan are
on-lent from the Parent to the Issuer, as such loan agreement is amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"PIK ON-LOAN 2" means that certain loan agreement, by and between the
Issuer and Sanitec, pursuant to which the proceeds of the PIK On-Loan 1 are
on-lent from the Issuer to Sanitec, as such loan agreement is amended, modified,
renewed, refunded, replaced or refinanced from time to time.
"PIK ON-LOAN 1 AND SHAREHOLDER ON-LOAN 1 SUBORDINATION AGREEMENT" means
that certain Intercompany On-Loans Subordination Agreement, to be dated as of
the Issue Date, by and between the Issuer, the Parent and the Trustee.
"PLEDGE AGREEMENTS" means the Notes Security Pledge Agreement and the Pool
Acquisition Pledge Agreement.
"PLEDGED COLLATERAL" means the property pledged under the Pool Acquisition
Pledge Agreement (until such property is released) and the Notes Security Pledge
Agreement to secure the payment and performance when due of the Obligations
under this Indenture and the Notes, including but not limited to (1) the Share
Capital of Pool Acquisition Netherlands B.V. (in liquidation), (2) the Share
Capital of Sanitec and (3) the Notes On-Loan, the PIK On-Loan 2 and the
Shareholder On-Loan 2.
"POOL ACQUISITION PLEDGE AGREEMENT" means that certain Deed of Pledge of
Registered Shares in a Private Limited Liability Company, dated as of the Issue
Date, by and among the Issuer, Pool Acquisition Netherlands B.V. (in
liquidation) and the Trustee, who will act as collateral agent for the holders
of the notes, pursuant to which, among other things, the Share Capital of Pool
Acquisition Netherlands B.V. (in liquidation) will be pledged on a first
priority basis to secure the payment and performance when due of the Obligations
under this Indenture and the Notes. The pledge under this agreement will be
released when the Share Capital of Sanitec is pledged under the Notes Security
Pledge Agreement.
"PREFERRED SHARES" of any Person means any Equity Interests of such Person
that have any rights which are preferential to the rights of any other Equity
Interests of such Person with respect to dividends or redemptions or upon
liquidation.
"PRINCIPALS" means the BC Funds, Teabar Capital Corporation, South Light
Investment Pte Limited and Capital d'Amerique CDPQ.
"PUBLIC EQUITY OFFERING" means a bona fide underwritten primary public
offering of the Share Capital of the Parent, GermanCo or the Issuer, as the case
may be, from which the Issuer receives at least (euro)100,000,000 in Net
Proceeds, and following which the issued and outstanding Share Capital of the
Parent, GermanCo or the Issuer, as the case may be, either:
(1) is listed on a nationally recognized stock exchange or automated
quotation system in the United States or in a member state of the
European Union; or
(2) has been distributed by means of an effective registration under the
US Securities Act;
19
AND PROVIDED FURTHER, that in the case of a public offering by the Parent or
GermanCo, the Net Proceeds of such offering shall have been loaned to the Issuer
as Subordinated Shareholder Indebtedness or contributed to the Issuer as an
equity contribution in exchange solely for Share Capital (other than
Disqualified Shares) of the Issuer.
"QUALIFIED RECEIVABLES TRANSACTION" means any transaction or series of
transactions entered into by the Issuer or any of its Restricted Subsidiaries
pursuant to which the Issuer or any of its Restricted Subsidiaries sells,
conveys or otherwise transfers to (i) a Receivables Subsidiary (in the case of a
transfer by the Issuer or any of its Restricted Subsidiaries), and (ii) any
other Person (in the case of a transfer by a Receivables Subsidiary), or grants
a security interest in, any accounts receivable (whether now existing or arising
in the future) of the Issuer or any of its Restricted Subsidiaries, and any
assets related thereto including, without limitation, all collateral securing
such accounts receivable, all contracts and all guarantees or other obligations
in respect of such accounts receivable, proceeds of such accounts receivable and
other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable and related assets.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"RECEIVABLES SUBSIDIARY" means a Restricted Subsidiary of the Issuer which
engages in no activities other than in connection with the financing of accounts
receivable and which is designated by the Board of Directors of the Issuer (as
provided below) as a Receivables Subsidiary (a) no portion of the Indebtedness
or any other Obligations (contingent or otherwise) of which (i) is guaranteed by
the Issuer or any Restricted Subsidiary of the Issuer (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to representations, warranties, covenants and indemnities entered into
in the ordinary course of business in connection with a Qualified Receivables
Transaction), (ii) is recourse to or obligates the Issuer or any Restricted
Subsidiary (other than such Receivables Subsidiary) of the Issuer in any way
other than pursuant to representations, warranties, covenants and indemnities
entered into in the ordinary course of business in connection with a Qualified
Receivables Transaction, or (iii) subjects any property or asset of the Issuer
or any Restricted Subsidiary of the Issuer (other than such Receivables
Subsidiary and other than accounts receivable and related assets as provided in
the definition of "Qualified Receivables Transaction"), directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to
representations, warranties, covenants and indemnities entered into in the
ordinary course of business in connection with a Qualified Receivables
Transaction, (b) with which neither the Issuer nor any Restricted Subsidiary
(other than such Receivables Subsidiary) of the Issuer has any material
contract, agreement, arrangement or understanding other than on terms no less
favorable to the Issuer or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Issuer, other
than fees payable in the ordinary course of business in connection with
servicing accounts receivable, and (c) with which neither the Issuer nor any
Restricted Subsidiary (other than such Receivables Subsidiary) of the Issuer has
any obligation to maintain or preserve such Restricted Subsidiary's financial
condition or cause such Restricted Subsidiary to achieve certain levels of
operating results. Any such designation by the Board of Directors of the Issuer
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the resolution of the Board of Directors of the Issuer giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"REDEMPTION DATE" means, when used with respect to any Note to be redeemed
pursuant to this Indenture, the date fixed for such redemption.
"REGISTRATION RIGHTS AGREEMENT" means the registration rights agreement
entered into among the Issuer and certain initial purchasers with respect to the
Initial Notes.
20
"REGULATION S DEFINITIVE REGISTERED NOTE" means a definitive registered
Note bearing the Regulation S Legend.
"REGULATION S LEGEND" means the legend initially set forth on the
Regulation S Notes in the form set forth in Section 2.07(l)(ii) hereof.
"REGULATION S GLOBAL NOTE" means the Global Note bearing the Regulation S
Legend that shall 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.
"REGULATION S NOTE" means a Regulation S Definitive Registered Note or a
Regulation S Global Note, as applicable.
"REGULATION S" means Regulation S promulgated under the US Securities Act.
"RESTRICTED DEFINITIVE REGISTERED NOTE" means a Definitive Registered Note
bearing either the 144A Legend or the Regulation S Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED SUBSIDIARY" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
"RULE 144" means Rule 144 promulgated under the US Securities Act.
"RULE 144A" means Rule 144A promulgated under the US Securities Act.
"RULE 903" means Rule 903 promulgated under the US Securities Act.
"RULE 904" means Rule 904 promulgated under the US Securities Act.
"SANITEC" means Sanitec Oy, a company organized under the laws of Finland
and, following the transfer of shares of Sanitec to the Issuer, a Wholly-Owned
Restricted Subsidiary of the Issuer.
"SEC" means the US Securities and Exchange Commission.
"SHARE CAPITAL" means:
(1) in the case of a corporation or a company, any and all shares,
interest, participations, or other equivalent (however designated and
whether or not voting) of share capital or 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 share capital or corporate stock;
(3) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited); 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.
21
"SHAREHOLDER LOAN" means that certain loan agreement, by and between
certain shareholders and the Parent, pursuant to which certain amounts are lent
from such shareholders to the Parent, as such loan agreement is amended,
modified, renewed, refunded, replaced or refinanced from time to time.
"SHAREHOLDER ON-LOAN 1" means that certain loan agreement, by and between
the Parent and the Issuer, pursuant to which the proceeds of the Shareholder
Loan are on-lent from the Parent to the Issuer, as such loan agreement is
amended, modified, renewed, refunded, replaced or refinanced from time to time.
"SHAREHOLDER ON-LOAN 2" means that certain loan agreement, by and between
the Issuer and Sanitec, pursuant to which the proceeds of the Shareholder
On-Loan 1 are on-lent from the Issuer to Sanitec, as such loan agreement is
amended, modified, renewed, refunded, replaced or refinanced from time to time.
"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 US Securities Act, as such regulation is in effect on the date
hereof.
"SPECIAL INTEREST" means additional interest on the Notes payable under the
Registration Rights Agreement.
"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 original documentation
governing such Indebtedness, and shall 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.
"SUBORDINATED SHAREHOLDER INDEBTEDNESS" means subordinated Indebtedness of
the Issuer issued to the Parent, GermanCo or to any Principal that:
(1) by its terms or pursuant to the terms of any subordination agreement
to which it is subject:
(A) does not (including upon the happening of any event) mature and
is not (including upon the happening of any event) mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder, in whole or in part,
and does not include any provision requiring repurchase by the
Issuer or any Restricted Subsidiary (including upon the happening
of any event) prior to the date on which the Notes mature;
(B) does not (including upon the happening of any event) require or
provide for the payment, in cash or otherwise, of interest or any
other amounts prior to its final Stated Maturity (PROVIDED that
interest may accrete while such subordinated Indebtedness is
outstanding and accreted interest may become due upon
acceleration of maturity as permitted by clause (C) below and any
interest may be satisfied at any time by the issue to the holders
thereof of additional Subordinated Shareholder Indebtedness);
(C) does not provide (including upon the happening of any event) for
the acceleration of its maturity (other than following the
winding up or bankruptcy of the Issuer, but only if the maturity
of the Notes has been accelerated) or the exercise of remedies
prior to the date on which the Notes mature and are repaid;
22
(D) is not secured by a Lien on any assets of the Issuer or any
Restricted Subsidiary and is not Guaranteed by any Subsidiary;
(E) does not (including upon the happening of any event) restrict the
payment of amounts due in respect of the Notes or compliance by
the Issuer with its Obligations under the Notes and this
Indenture;
(F) does not (including upon the happening of an event) constitute
Voting Stock; and
(G) is not (including upon the happening of any event) mandatorily
convertible or exchangeable, or convertible or exchangeable at
the option of the holder, in whole or in part, prior to the date
on which the Notes mature other than into or for Share Capital
(other than Disqualified Shares); and
(2) is contractually subordinated (pursuant to an agreement with the
Trustee) and junior in right of payment to the prior payment in full
in cash of all Obligations (including principal, interest, premium (if
any) and Additional Amounts (if any)) of the Issuer under the Notes
and this Indenture pursuant to the PIK On-Loan 1 and Shareholder
On-Loan 1 Subordination Agreement or an agreement which is
substantially identical thereto or more favourable to the Holders of
Notes, and, in any event, such that:
(A) the Issuer shall make no payment in respect of such subordinated
Indebtedness (whether in cash, securities or otherwise, except as
permitted by clause (1)(B) above) and may not acquire such
subordinated Indebtedness except as permitted by this Indenture
until the prior payment in full in cash of all obligations in
respect of the Notes and this Indenture;
(B) upon any total or partial liquidation, dissolution or winding up
of the Issuer or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Issuer or its
property, the Holders of the Notes shall be entitled to receive
payment in full in cash of the Obligations under the Notes and
this Indenture, including Additional Amounts, if any, before the
holders of such subordinated Indebtedness shall be entitled to
receive any payment in respect of such subordinated Indebtedness;
(C) such subordinated Indebtedness may not be amended such that it
would cease to qualify as Subordinated Shareholder Indebtedness
until a date that is after the prior payment in full in cash of
all Obligations in respect of the Notes and this Indenture;
(D) the holders of such subordinated Indebtedness shall assign any
rights to vote, including by way of proxy, in a bankruptcy,
insolvency or similar proceeding to the Trustee to the extent
necessary to give effect to the priority and subordination
provisions described in this definition; and
(E) the holders of such subordinated Indebtedness shall agree that,
in the event any payment on such subordinated Indebtedness is
received by such holder in contravention of the terms of this
Indenture and any applicable subordination agreement, then such
payment shall be held in trust for the benefit of, and shall be
paid over or delivered to, the Trustee, on behalf of the Holders
of the Notes;
23
PROVIDED, HOWEVER, that any event or circumstance that results in such
subordinated Indebtedness ceasing to qualify as Subordinated Shareholder
Indebtedness shall (i) constitute an incurrence of such Indebtedness by the
Issuer and (ii) reduce the sum described in the second clause (3) of Section
4.09 by an amount equal to the principal amount of such Indebtedness, and any
and all Restricted Payments made since the date of the original issuance of such
Subordinated Shareholder Indebtedness shall constitute new Restricted Payments
that must satisfy Section 4.09 at a time on or after the date of the original
issuance of such Subordinated Shareholder Indebtedness after giving effect to
the reduction referred to above in clause (ii) of this sentence.
"SUBSIDIARY" means, with respect to any specified Person:
(1) any corporation, company, association or other business entity of
which more than 50% of the total voting power of shares of Share
Capital entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or Trustees of the
corporation, company, 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).
"TAX" means any tax, duty, xxxx, impost, assessment or other governmental
charge (including penalties, interest and other liabilities related thereto).
"TAXING AUTHORITY" means any government or political sub-division or
territory or possession of any government or any authority or agency therein or
thereof having power to Tax.
"TIA" means the U.S. Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the Issue Date.
"TRUSTEE" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"TRUSTEE ACTS" means the English Trustee Act of 1925 and the English
Trustee Act of 2000.
"UNRESTRICTED DEFINITIVE REGISTERED NOTE" means one or more Definitive
Registered Notes that do not bear and are not required to bear either the 144A
Legend or the Regulation S Legend.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary of the Issuer (other than
Sanitec) that is designated by the Issuer's Board of Directors as an
Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent
that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or understanding
with the Issuer or any Restricted Subsidiary of the Issuer unless the
terms of any such agreement, contract, arrangement or understanding
are no less favourable to the Issuer or such Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates of the Issuer;
24
(3) is a Person with respect to which neither the Issuer 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;
(4) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Issuer or any of its Restricted
Subsidiaries; and
(5) has at least one director on its Board of Directors that is not a
director or executive officer of the Issuer or any of its Restricted
Subsidiaries and has at least one executive officer that is not a
director or executive officer of the Issuer or any of its Restricted
Subsidiaries.
Any designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the preceding
conditions and was permitted by Section 4.09. If, at any time, any Unrestricted
Subsidiary would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for the
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred by a Restricted Subsidiary of the Issuer as of such date
and, if such Indebtedness is not permitted to be incurred as of such date under
Section 4.10, the Issuer shall be in default of such covenant. The Board of
Directors of the Issuer may at any time designate any Unrestricted Subsidiary to
be a Restricted Subsidiary; PROVIDED that such designation shall be deemed to be
an incurrence of Indebtedness by a Restricted Subsidiary of the Issuer of any
outstanding Indebtedness of such Unrestricted Subsidiary and such designation
shall only be permitted if (1) such Indebtedness is permitted under Section
4.10, calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (2) no Default or Event of
Default would be in existence following such designation.
As of the Issue Date, the following companies are designated as
Unrestricted Subsidiaries: Sphinx Technical Ceramics B.V., Pool Financing
Helsinki Oy and Pool Sub-Financing Helsinki Oy.
"US EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"US SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"VOTING STOCK" of any Person as of any date means the Share Capital 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 shall elapse between such date and
the making of such payment; by
(2) then outstanding principal amount of such Indebtedness.
25
"WESTERN EUROPE" means Austria, Belgium, Denmark, Finland, France, Germany,
Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden,
Switzerland and the United Kingdom.
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" of any specified Person means a
Restricted Subsidiary of such Person all of the outstanding Share Capital or
other ownership interests of which (other than directors' qualifying shares)
shall 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
TERM SECTION
---- -------
"ADDITIONAL AMOUNTS".................................................. 4.24
"ADDITIONAL NOTES".................................................... 2.01
"AFFILIATE TRANSACTION"............................................... 4.13
"ASSET SALE OFFER".................................................... 4.08
"ASSET SALE OFFER PERIOD"............................................. 4.08
"ASSET SALE PURCHASE DATE"............................................ 4.08
"AUTHENTICATION ORDER"................................................ 2.02
"AUTHORIZED AGENT".................................................... 12.10
"CALCULATION DATE".................................................... 1.01
"CHANGE OF CONTROL OFFER.............................................. 4.07
"CHANGE OF CONTROL OFFER PERIOD"...................................... 4.07
"CHANGE OF CONTROL PURCHASE DATE"..................................... 4.07
"COVENANT DEFEASANCE"................................................. 8.03
"EVENT OF DEFAULT".................................................... 6.01
"EXCESS PROCEEDS"..................................................... 4.08
"EXCLUDED TAX"........................................................ 4.24
"INCUR"............................................................... 4.10
"JUDGMENT CURRENCY"................................................... 12.08
"LEGAL DEFEASANCE".................................................... 8.02
"LUXEMBOURG PAYING AGENT"............................................. 2.03
"NEW YORK PAYING AGENT"............................................... 2.03
"OFFER AMOUNT"........................................................ 4.08
"PRINCIPAL PAYING AGENT".............................................. 2.03
"PAYING AGENT"........................................................ 2.03
"PAYMENT DEFAULT"..................................................... 6.01
"PERMITTED DEBT"...................................................... 4.10
"REGISTER"............................................................ 2.03
"REGISTRAR"........................................................... 2.03
"REGULAR RECORD DATE" ................................................ 2.04
"RELEVANT TAXING JURISDICTION"........................................ 4.24
"RESTRICTED PAYMENTS"................................................. 4.09
"SPOT RATE OF EXCHANGE"............................................... 12.08
"SURVIVING ENTITY".................................................... 5.01
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:
26
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER" means a Holder of a Note;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Issuer, and any successor obligor upon the
Notes.
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:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it
in accordance with Finnish GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural include the
singular;
(e) provisions apply to successive events and transactions;
(f) references to sections of or rules under the US Securities Act shall be
deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time;
(g) whenever in this Indenture there is referenced, in any context, the
payment of principal, premium or interest, or any other amount under or with
respect to any Note, that reference shall be deemed to include the payment of
Additional Amounts and Special Interest to the extent that Additional Amounts or
Special Interest are, were or would be payable in respect thereof;
(h) all references in this Indenture to any action, remedy or method of
proceeding for the enforcement of the rights of creditors shall be deemed to
include, in respect of any jurisdiction other than England, references to such
action, remedy or method of proceeding for the enforcement of the rights of
creditors available or appropriate in such jurisdiction as shall most nearly
approximate to such action, remedy or method of proceeding described or referred
to in this Indenture;
(i) all references in this Indenture to taking proceedings against the
Issuer shall be deemed to include references to proving in the winding up of the
Issuer;
(j) unless the context otherwise requires words or expressions used in this
Indenture shall bear the same meanings as in the Companies Act 1985 of Great
Britain.
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ARTICLE II
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 144A Global Note, duly executed by the Issuer,
and authenticated by the Principal Paying Agent as hereinafter provided. Notes
offered and sold in reliance on Regulation S shall be issued initially in the
form of the Regulation S Global Note, duly executed by the Issuer and
authenticated by the Principal Paying Agent 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 Principal Paying Agent to reflect exchanges, repurchases, redemptions and
transfers of interests therein, in accordance with the terms of this Indenture.
Ownership of interests in the Global Notes shall be limited to Participants
and Indirect Participants. Book-Entry Interests in the Global Notes shall be
shown on, and transfers thereof shall 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 2.07(a) hereof, the Global Notes may be
transferred, in whole and not in part, only to a nominee or a successor of a
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, the Trustee or any Agent from giving effect to any
written certification, proxy or other authorisation 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 beneficial interest in any Global Note.
(d) RESPONSIBILITIES OF PRINCIPAL PAYING AGENT. As set forth in the Paying
Agency Agreement, the Principal Paying Agent shall be responsible for, inter
alia:
(i) paying sums due on the Global Notes;
(ii) authenticating the Notes; and
(iii) arranging on behalf of and at the expense of the Issuer for
notices to be communicated to Holders in accordance with the terms of this
Indenture.
(e) ADDITIONAL NOTES. Subject to the restrictions contained in Section 4.10
hereof, from time to time after the Issue Date the Issuer may issue additional
notes ("ADDITIONAL NOTES") under this Indenture. Any Additional Notes issued as
provided for herein will be treated as a single class and as part of the same
series as the Initial Notes for all purposes under this Indenture.
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SECTION 2.02 EXECUTION AND AUTHENTICATION
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.
If any of the Officers 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.
A Note shall not be valid until an authorised signatory of the Principal
Paying Agent manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Principal Paying Agent shall authenticate Notes on the Issue Date in an
aggregate principal amount of (euro)260,000,000, upon receipt of an Issuer
Request signed by an Officer of the Issuer directing the Principal Paying Agent
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 Principal Paying Agent shall authenticate
Additional Notes upon receipt of an Authentication Order relating thereto.
The Principal Paying Agent 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
Principal Paying Agent may do so. Each reference in this Indenture to
authentication by the Principal Paying Agent includes authentication by such
agent. Such authenticating agent shall have the same rights as the Principal
Paying Agent in any dealings hereunder with the Issuer or with any of the
Issuer's Affiliates.
SECTION 2.03 APPOINTMENT OF AGENTS
The Issuer shall maintain (i) an office or agency in the City of London,
England where Definitive Registered Notes may be presented for registration of
transfer or for exchange; (ii) an office or agency in the City of London,
England where Notes may be presented for payment; (iii) an office or agency in
the Borough of Manhattan, the City of New York, State of New York where Notes
may be presented for payment; (iv) when and for so long as the Notes are listed
on the Luxembourg Stock Exchange, an office or agency in Luxembourg where
Definitive Registered Notes may be presented for transfer or for exchange and
for payment thereof; (v) an office or agency where notices and demands to or
upon the Issuer in respect of the Notes and this Indenture may be served; and
(vi) 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 shall be made. The office or agency referred to in clause (i)
above shall be referred to as the "REGISTRAR," the office or agency referred to
in clause (ii) above shall be referred to as the "PRINCIPAL PAYING AGENT," the
office or agency referred to in clause (iii), shall be referred to as the "NEW
YORK PAYING AGENT," the office or agency referred to in clause (iv) shall be
referred to as the "LUXEMBOURG PAYING AGENT," and each office or agency referred
to in clauses (i), (ii) and (iii) above shall be referred to as a "PAYING
AGENT." In addition, if the conclusions of the ECOFIN Council meeting of 26-27
November 2000, are implemented, the Issuer shall maintain a Paying Agent in a
member state of the European Union that will not be obliged to withhold or
deduct tax pursuant to any European Union Directive on the taxation of savings
implementing such conclusions or any law implementing or complying with, or
introduced to confirm to, such directive.
If the Issuer makes any change in the Paying Agents or the Registrar, the
Issuer will give notice to the Principal Paying Agent, upon receipt of which the
Principal Paying Agent (at the expense of the Issuer) will publish a notice of a
change of Paying Agent or Registrar in a newspaper having a general circulation
in Luxembourg (which is expected to be the LUXEMBOURGER WORT). For the avoidance
of doubt, upon the issuance of Definitive Registered Notes, Holders shall be
able to receive principal and interest on the Notes and shall be able to
transfer Definitive Registered Notes at the Luxembourg office of such
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paying and transfer agent, subject to the right of the Issuer to mail payments
in accordance with the terms of this Indenture.
Claims against the Issuer for the payment of principal, or Additional
Amounts, if any, on the Notes shall be prescribed ten years after the applicable
due date for payment thereof. Claims against the Issuer for the payment of
interest on the Notes shall be prescribed five years after the applicable due
date for payment of interest.
The Registrar shall keep a register (the "REGISTER") of the Holders of the
Notes and of the transfer and exchange of Notes and a copy of such Register
shall be kept at the registered office of the Issuer.
Pursuant to the Paying Agency Agreement, the Issuer shall initially appoint
(a) The Bank of New York at Xxx Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx X00 0XX as the
Principal Paying Agent and Registrar, (b) The Bank of New York at 000 Xxxxxxx
Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, XX 00000 as the New York Paying Agent and (c)
The Bank of New York (Luxembourg) S.A. as the Luxembourg Paying Agent and
Registrar.
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 or any of its Affiliates act as Paying Agent.
The Issuer shall notify the Trustee of the name and address of any Agent
appointed after the Issue Date.
SECTION 2.04 HOLDERS TO BE TREATED AS OWNERS; PAYMENTS OF INTEREST
(a) The Issuer, the Paying Agents, the Registrar, the Trustee and any agent
of the Issuer, any Paying Agent, the Registrar or the Trustee may deem and treat
the Holder of a Note as the absolute owner of such Note, free of any equity,
set-off or counterclaim on the part of the Issuer against the original or any
intermediate Holder of such Note (whether or not such Note shall be overdue and
notwithstanding any notion or other writing thereon or any notice or previous
loss or theft 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
nor any agent of the Issuer, any Paying Agent, the Registrar 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.
(b) A Holder of a Note at the close of business on any Regular Record Date
with respect to any Interest Payment Date shall be entitled to receive the
interest payable on such Interest Payment Date notwithstanding any transfer or
exchange of such Note subsequent to the Regular Record Date and prior to such
Interest Payment Date, except if and to the extent the Issuer shall default in
the payment of the interest due on such Interest Payment Date, in which case
such defaulted interest shall be paid in accordance with Section 2.13. The term
"REGULAR RECORD DATE" as used with respect to any Interest Payment Date for the
Notes shall mean the date specified as such in the Notes.
SECTION 2.05 PAYING AGENTS TO HOLD MONEY
Each Paying Agent shall hold in the name of and on behalf of the Holders or
the Trustee all money received by the Paying Agent for the payment of principal,
premium, interest or Additional Amounts 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
30
other obligor on the Notes) in making any such payment. Money so held 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 Trustee may 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 2.06 HOLDER 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 Paying
Agent at least seven Business Days before each 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 2.07 TRANSFER AND EXCHANGE
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES.
(i) The Global Notes cannot be transferred to any Person other than to
another nominee of a Depositary or to a successor clearing agency or its
nominee approved by the Issuer and the Trustee.
(ii) All Global Notes shall be exchanged by the Issuer for Definitive
Registered Notes (A) if each Depositary notifies the Issuer that it is
unwilling or unable to act as a clearing system in respect of the Notes and
a successor clearing system is not appointed by the Issuer within 120 days;
(B) if either Depositary so requests following an Event of Default; or (C)
in whole, but not in part, at any time if the Issuer in its sole discretion
determines that the Global Notes should be exchanged for Definitive
Registered Notes; or (D) if the owner of a Book-Entry Interest requests
such exchange in writing delivered through either Depositary. Upon the
occurrence of any of the preceding events, Definitive Registered Notes
shall be issued in the name or names and issued in any approved
denominations, as the Depositary shall instruct the Issuer based on the
instructions received by the Depositary from the holders of Book-Entry
Interests.
(iii) Global Notes may also be exchanged or replaced, in whole or in
part, as provided in Section 2.08 and Section 2.11. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note
or any portion thereof, pursuant to Section 2.08 or Section 2.11 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 2.07(a).
(b) GENERAL PROVISIONS APPLICABLE TO TRANSFERS AND EXCHANGES OF THE NOTES.
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 2.07(b), as well as one or more of the
other following subparagraphs of this Section 2.07, as applicable.
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: (i) 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
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amount equal to the Book-Entry Interest to be transferred or exchanged; (ii) 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 (iii) instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase.
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: (i) 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; (ii) a written order
from a Participant or an Indirect 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 (ii) 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.
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 authorised 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.
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 systems.
(c) TRANSFER OF BOOK-ENTRY INTERESTS IN A REGULATION S GLOBAL NOTE TO
BOOK-ENTRY INTERESTS IN A 144A GLOBAL NOTE. A Book-Entry Interest in the
Regulation S Global Note may be transferred to a Person who takes delivery
thereof in the form of a Book-Entry Interest in the 144A Global Note if the
transfer complies with the requirements of Section 2.07(b) above, such transfer
takes place after June 17, 2002 and the Principal Paying Agent receives a
certificate to the effect set forth in EXHIBIT C hereto, including the
certifications in item (1) thereof.
Upon the receipt of such certificate and the orders and instructions
required by Section 2.07(b), the Principal Paying Agent shall (i) instruct the
Common Depositary to deliver, or cause to be delivered, the Global Notes to the
Principal Paying Agent for endorsement and upon receipt thereof, decrease
SCHEDULE A to the Regulation S Global Note and increase SCHEDULE A to the 144A
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.
(d) TRANSFER OF BOOK-ENTRY INTERESTS IN A 144A GLOBAL NOTE TO BOOK-ENTRY
INTERESTS IN A REGULATION S GLOBAL NOTE. A Book-Entry Interest in the 144A
Global Note may be transferred to a Person who takes delivery thereof in the
form of a Book-Entry Interest in the Regulation S Global Note only if the
transfer complies with the requirements of Section 2.07(b) above, such transfer
takes place after June 17, 2002, 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) thereof.
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Upon receipt of such certificates and the orders and instructions required
by Section 2.07(b), the Principal Paying Agent shall (i) instruct the Common
Depositary to deliver, or cause to be delivered, the Global Notes to the
Principal Paying Agent for endorsement and, upon receipt thereof, increase
SCHEDULE A to the Regulation S Global Note and decrease SCHEDULE A to the 144A
Global Note, in each case, 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. To the extent permitted by the Depositary, 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 2.07(b) above and:
(i) in the case of a transfer on or before June 17, 2002 by a holder
of a Book-Entry Interest in a Regulation S Global Note, 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;
(ii) in the case of a transfer after June 17, 2002 by a holder of a
Book-Entry Interest in a Regulation S Global Note, the transfer complies
with Section 2.07(b);
(iii) in the case of a transfer by a holder of a Book-Entry Interest
in a 144A 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;
(iv) in the case of a transfer by a holder of a Book-Entry Interest in
a 144A 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
(v) in the case of a transfer by a holder of a Book-Entry Interest in
a 144A 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.
Upon receipt of such certificates and the orders and instructions required
by Section 2.07(b), the Principal Paying Agent shall (i) instruct the Common
Depositary to deliver, or cause to be delivered, the relevant Global Note to the
Principal Paying 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 2.07(e)(i)(A) or Section 2.07(e)(iii) to have the 144A
Legend and, in the case of a transfer under Section 2.07(e)(i)(B) or Section
2.07(e)(iv), 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 Principal Paying Agent
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.
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(f) TRANSFER OF DEFINITIVE REGISTERED NOTES TO BOOK-ENTRY INTERESTS IN
GLOBAL NOTES. To the extent permitted by the Depositary, 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 June 17, 2002 and:
(i) in the case of a transfer by a holder of a Regulation S Definitive
Registered Note to a person who takes delivery thereof in the form of a
Book-Entry Interest in the Regulation S Global Note, the Registrar shall
have received a certificate to the effect set forth in EXHIBIT C hereto,
including the certifications in item (2) thereof;
(ii) 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
(iii) in the case of a transfer by a holder of a 144A Definitive
Registered Notes in reliance on Regulation S or Rule 144 under the US
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.
Upon satisfaction of the foregoing conditions, the Registrar shall (i)
deliver the Definitive Registered Notes to the Registrar for cancellation
pursuant to Section 2.12 hereof; (ii) record such transfer on the Register;
(iii) instruct the Common Depositary to deliver (A) in the case of a transfer
pursuant to Section 2.07(f)(i) or Section 2.07(f)(iii) above, the applicable
Regulation S Global Note and (B) in the case of a transfer pursuant to Section
2.07(f)(ii), the applicable 144A 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 RESTRICTED
DEFINITIVE REGISTERED NOTES. A holder of a Book-Entry Interest in a Global Note
may exchange such Book-Entry Interest for a Restricted Definitive Registered
Note if the exchange or transfer complies with the requirements of Section
2.07(b) above and the Principal Paying Agent receives the following:
(i) if the holder of such Book-Entry Interest in a Global Note
proposes to exchange such Book-Entry Interest for a Regulation S Definitive
Registered Note, a certificate from such holder in the form of EXHIBIT D
hereto, including the certifications in items 2(a) and 2(b) thereof;
(ii) if the holder of such Book-Entry Interest in a Global Note
proposes to exchange such Book-Entry Interest for a 144A Definitive
Registered Note, a certificate from such holder in the form of EXHIBIT D
hereto including the certifications in item 2(a) thereof.
Upon receipt of such certificates and the orders and instructions required
by Section 2.07(b), the Principal Paying Agent shall (i) instruct the Common
Depositary to deliver, or cause to be delivered, the relevant Global Note to the
Principal Paying 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 in exchange for a Book-Entry
Interest in a Global Note pursuant to this Section 2.07(g) to bear the
appropriate legend required by item 2(b) of Exhibit D hereto.
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The Issuer shall issue and, upon receipt of an Authentication Order from
the Issuer in accordance with Section 2.02 hereof, the Principal Paying Agent
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 BOOK-ENTRY INTERESTS IN GLOBAL NOTES FOR UNRESTRICTED
DEFINITIVE REGISTERED NOTES. To the extent permitted by the Depositary, a holder
of a Book-Entry Interest in a Global Note may exchange such Book-Entry Interest
for an Unrestricted Definitive Registered Note only if the Principal Paying
Agent receives the following:
(i) if the holder of such Book-Entry Interest in a 144A 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 item 1(a) thereof; or
(ii) if the holder of such Book-Entry Interest in a Regulation 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 item 1(b)
thereof.
Upon receipt of such certificates and the orders and instructions required
by Section 2.07(b), the Principal Paying Agent shall (i) instruct the Common
Depositary to deliver, or cause to be delivered, the relevant Global Note to the
Principal Paying 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 transfer.
The Issuer shall issue and, upon receipt of an Authentication Order from
the Issuer in accordance with Section 2.02 hereof, the Principal Paying Agent
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. Any Definitive Registered Note issued in exchange for a Book-Entry
Interest pursuant to this Section 2.07(h) shall not bear the 144A Legend or the
Regulation S Legend.
(i) EXCHANGES OF DEFINITIVE REGISTERED NOTES FOR BOOK-ENTRY INTERESTS IN
GLOBAL NOTES. Any Holder of a Restricted Definitive Registered Note may exchange
such Note for a Book-Entry Interest in a Global Note if such exchange complies
with Section 2.07(b) above, such exchange takes place after June 17, 2002 and
the Registrar receives the following documentation:
(i) if the Holder of a 144A Definitive Registered Note proposes to
exchange such Note for a Book-Entry Interest in a 144A Global Note, a
certificate from such Holder in the form of EXHIBIT D hereto, including the
certifications in item 2(a) thereof;
(ii) if the Holder of a 144A Definitive Registered Note proposes to
exchange such Note for a Book-Entry Interest in a Regulation S Global Note,
a certificate from such Holder in the form of EXHIBIT D hereto, including
the certifications in item 1(a) thereof;
(iii) if the Holder of a Regulation S Definitive Registered Notes
proposes to exchange such Notes for a Book-Entry Interest in a Regulation S
Global Note, a certificate from such Holder in the form of EXHIBIT D
hereto, including the certifications in item 2(a) AND (b) thereof;
35
(iv) if the Holder of an Unrestricted Definitive Registered Note
proposes to exchange such Note for a Book-Entry Interest in a Regulation S
Global Note, a certificate from such Holder in the form of EXHIBIT D
hereto, including the certifications in item 2(a) thereof;
Upon satisfaction of the foregoing conditions, the Registrar shall (i)
cancel such Note pursuant to Section 2.12 hereof; (ii) record such exchange on
the Register; (iii) instruct the holder of the Note to deliver in the case of an
exchange pursuant to Section 2.07(i)(i), the 144A Global Note, and (B) in the
case of an exchange pursuant to Section 2.07(i)(ii), (iii) or (iv), the
Regulation S 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.
(j) TRANSFER OF RESTRICTED DEFINITIVE REGISTERED NOTES FOR DEFINITIVE
REGISTERED NOTES. Any Holder of a Restricted 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 2.07(b) above
and the Registrar receives the following additional documentation:
(i) in the case of a transfer on or before June 17, 2002 by a Holder
of a Regulation S Definitive Registered Note, the Registrar shall have
received a certificate to the effect set forth in EXHIBIT C hereto,
including the certifications in item (2) thereof;
(ii) in the case of a transfer after June 17, 2002 by a Holder of a
Regulation S Definitive Registered Note, the transfer complies with Section
2.07(b);
(iii) 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;
(iv) 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
(v) 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 2.12 hereof and complete and deliver to the Issuer
(i) in the case of a transfer pursuant to Section 2.07(j)(i)(A) or Section
2.07(j)(iii), a 144A Definitive Registered Note; (ii) in the case of a transfer
pursuant to Section 2.07(j)(ii) or Section 2.07(j)(iv), a Regulation S
Definitive Registered Note; and (iii) in the case of a transfer pursuant to
Section 2.07(j)(v), an Unrestricted Definitive Registered Note. The Issuer shall
execute and the Principal Paying Agent shall authenticate and deliver such
Definitive Registered Note to such Person(s) as the Holder of the surrendered
Definitive Registered Note shall designate.
(k) 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 2.07(b) above.
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(l) LEGENDS
(i) 144A LEGEND. The following legend shall appear on the face of all
144A Notes issued under this Indenture, unless the Issuer determines
otherwise in compliance with applicable law:
"THIS 9% SENIOR NOTE DUE 2012 AND ANY INTEREST HEREIN HAVE NOT BEEN AND
SHALL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "U.S. SECURITIES ACT"), AND ANY OFFER, SALE, PLEDGE OR OTHER
TRANSFER THEREOF MUST BE MADE ONLY (I) (A) TO A PERSON WHOM THE PURCHASER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE U.S. SECURITIES ACT ("RULE 144A") IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE U.S. SECURITIES ACT
("REGULATION S"), (C) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
U.S. SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), OR (D)
TO SANITEC INTERNATIONAL S.A. OR ANY SUBSIDIARY THEREOF; AND (II) 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 SHALL
DELIVER TO EACH PURCHASER OF THIS NOTE OR BOOK-ENTRY INTERESTS FROM IT A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND."
(ii) REGULATION S LEGEND. The following legend shall appear on the
face of all Regulation S Notes issued under this Indenture, unless the
Issuer determines otherwise in compliance with applicable law:
"THIS 9% SENIOR NOTE DUE 2012 AND ANY INTEREST HEREIN HAVE NOT BEEN AND
SHALL NOT BE REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE "U.S. SECURITIES ACT"), AND, ON OR PRIOR TO JUNE 17, 2002, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (I) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
U.S. SECURITIES ACT ("REGULATION S"), OR TO SANITEC INTERNATIONAL S.A. OR
ANY SUBSIDIARY THEREOF; AND (II) IN COMPLIANCE WITH ALL APPLICABLE LAWS OF
ANY OTHER JURISDICTION. AFTER JUNE 17, 2002, THIS NOTE AND ANY INTEREST
HEREIN MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE U.S. SECURITIES ACT
AND ALL APPLICABLE LAWS OF ANY OTHER JURISDICTION.
EACH PURCHASER OF THIS NOTE OR ANY INTEREST HEREIN AGREES THAT IT SHALL
DELIVER TO EACH PURCHASER OF THIS NOTE OR BOOK-ENTRY INTERESTS HEREIN A
NOTICE SUBSTANTIALLY TO THE EFFECT THEREOF."
(iii) 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
THE BENEFICIAL OWNERS HEREOF, AND IS NOT
37
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
2.07(A) OF THE INDENTURE; AND (II) THIS GLOBAL NOTE MAY BE DELIVERED IN
ACCORDANCE WITH SECTION 2.07(M) OF THE INDENTURE TO THE REGISTRAR FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE."
(m) 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 2.12 hereof.
(n) GENERAL PROVISIONS RELATING TO REGISTRATION OF TRANSFERS AND EXCHANGES.
To permit registration of transfers and exchanges, the Issuer shall execute and
the Principal Paying Agent shall authenticate Global Notes and Definitive
Registered Notes upon the Issuer's order.
(i) 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 2.11, 4.07,
4.08 and 9.05 hereof).
(ii) 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, evidencing
the same debt and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Registered Notes surrendered upon such
registration of transfer or exchange.
(iii) The Issuer shall not be required to register the transfer of or,
to exchange, Definitive Registered Notes during (A) 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; (B) 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; or (C)
which the Holder has tendered (and not withdrawn) for repurchase in
connection with a Change of Control Offer or an Asset Sale Offer.
(iv) The Principal Paying Agent shall authenticate Global Notes and
Definitive Registered Notes in accordance with the provisions of Section
2.02 hereof.
SECTION 2.08 REPLACEMENT NOTES
If a mutilated Note is surrendered to a Paying Agent or the Registrar, or
if the Holder of a Note claims that the Note has been lost, destroyed or
wrongfully taken, the Issuer shall issue and the Principal Paying Agent 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 or
the Registrar, 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 or the Registrar, an indemnity bond shall be posted,
sufficient in the judgement of each to protect the Issuer, the Paying Agent and
the Registrar 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 and the
Registrar may charge the Issuer for their expenses in replacing such Note. Every
replacement Note shall constitute an additional obligation of the Issuer and the
Registrar. If, after the delivery of such replacement Note, a bona fide
purchaser of the original Note
38
in lieu of which such replacement Note was issued presents for payment or
registration such original Note, the Issuer 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 therefor to the extent of any loss, damage,
cost or expense incurred by the Issuer, any Agent and any authenticating agent
in connection therewith.
SECTION 2.09 OUTSTANDING NOTES
The Notes outstanding at any time are all Notes that have been
authenticated by the Principal Paying Agent 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 Registrar hereunder; (iv) Notes in respect of which the Issuer
has been fully discharged for the payment of principal, premium, interest and
Additional Amounts; and (v) those Notes described in this Section 2.09 as not
outstanding. Subject to Section 2.10 hereof, a Note does not cease to be
outstanding because the Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08 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 2.10 TREASURY NOTES
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, request, waiver or consent, in the
exercise of any discretion, power or authority (whether contained in this
Indenture or vested by operation of law) which the Trustee is required,
expressly or impliedly, to exercise in or by reference to the interests of the
Holders or any of them and in the Trustee determining whether any event,
circumstance, matter or timing is in its opinion, materially prejudicial or
adverse to the interests of the Holders or any of them, Notes owned by the
Issuer, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Parent, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, request, waiver or
consent, only Notes that the Trustee knows or believes are so owned shall be so
disregarded.
SECTION 2.11 TEMPORARY NOTES
Until definitive Notes are prepared and ready for delivery, the Issuer may
prepare, and the Principal Paying Agent 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 Principal Paying
Agent 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.
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SECTION 2.12 CANCELLATION
The Issuer at any time may deliver Notes to the Registrar for cancellation.
Each Paying Agent shall forward to 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 Registrar for cancellation under the circumstances set forth in
Section 2.07(m). 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 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 Registrar for cancellation.
SECTION 2.13 DEFAULTED INTEREST
If the Issuer defaults on a payment of interest on the Notes, it shall pay
the defaulted interest, PLUS (to the extent permitted by law) any interest
payable on the defaulted interest, in accordance with the terms hereof, to the
Persons who are Holders of Notes, if any, on a subsequent special record date,
which date shall be at least ten Business Days prior to the payment date and
shall notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on the Notes and the date of such proposed payment. The Issuer shall
fix such special record date and payment date in a manner satisfactory to the
Trustee. At least 15 days before such special record date, the Issuer shall, in
accordance with Section 12.02, mail by first-class mail to the Common
Depositary, each Depositary and, if any Definitive Registered Notes are
outstanding, each Holder, a notice that states the special record date, the
payment date and the amount of defaulted interest and interest payable on such
defaulted interest, if any, to be paid.
SECTION 2.14 COMMON CODE AND ISIN NUMBERS
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 numbers 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 numbers 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 shall promptly notify
the Trustee and each Agent of any change in the Common Code and/or ISIN numbers.
SECTION 2.15 DEPOSIT OF MONEYS
The Issuer hereby covenants with the Trustee that it shall, prior to 10:00
am (London time) on each 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, deposit with the Principal Paying Agent or in the circumstances
described in Section 2.16, the Trustee, in immediately available funds money (in
Euros) sufficient to make cash payments, if any, due in respect of the Notes on
such Interest Payment Date, Maturity Date, or Business Day, as the case may be.
Subject to receipt of such funds by such time by the Principal Paying Agent, the
Principal Paying Agent and each Paying Agent shall remit such payment in a
timely manner to the Holders on such 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.
The Trustee will hold the benefit of this covenant on trust for the Holders
and itself in accordance with this Indenture.
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SECTION 2.16 TRUSTEE'S REQUIREMENTS REGARDING AGENTS
At any time after a Default or an Event of Default shall have occurred and
shall be continuing or the Notes shall otherwise have become due and repayable
or the Trustee shall have received any money which it proposes to pay under
Section 6.10 to the Holders, the Trustee may:
(a) by notice in writing to the Issuer, the Principal Paying Agent, the
other Paying Agents and the Registrar require the Principal Paying Agent, the
other Paying Agents and the Registrar pursuant to the Paying Agency Agreement:
(i) to act thereafter as Principal Paying Agent, Paying Agents and
Registrar respectively of the Trustee in relation to payments to be made by
or on behalf of the Trustee under the provisions of this Indenture MUTATIS
MUTANDIS on the terms provided in the Paying Agency Agreement (save that
the Trustee's Liability under any provisions thereof for the
indemnification, remuneration and payment of out-of-pocket expenses of the
Paying Agents and the Registrar shall be limited to the amounts for the
time being held by the Trustee on the trusts of this Indenture relating to
the relative Notes and available for such purpose) and thereafter to hold
all Notes and all sums, documents and records held by them in respect of
Notes on behalf of the Trustee; or
(ii) to deliver up all Notes and all sums, documents and records held
by them in respect of Notes to the Trustee or as the Trustee shall direct
in such notice provided that such notice shall be deemed not to apply to
any documents or records which the relative Paying Agent or the Registrar
is obliged not to release by any law or regulation and provided that there
shall at all times be a registrar so long as any Notes are outstanding;
and/or
(b) by notice in writing to the Issuer require it to make all subsequent
payments in respect of the Notes to or to the order of the Trustee and not to
the Principal Paying Agent; with effect from the issue of any such notice to the
Issuer.
SECTION 2.17 FEES, DUTIES AND TAXES
The Issuer will pay any stamp, issue, registration, documentary and other
fees, duties and taxes, including interest and penalties, payable (i) in the
United Kingdom, Belgium, Finland, the Netherlands or Luxembourg on or in
connection with (a) the execution and delivery of this Indenture and the Pledge
Agreements and (b) the constitution and original issue of any Notes and (ii) in
any jurisdiction on or in connection with any action taken by or on behalf of
the Trustee or (where permitted under these presents so to do) any Holder to
enforce this Indenture, the Notes Security Pledge Agreement or the Pool
Acquisition Pledge Agreement. If the Trustee (or any Holder where permitted
under this Indenture so to do) shall take any proceedings against the Issuer in
any other jurisdiction and if for the purpose of any such proceedings this
Indenture or any Note is taken into any such jurisdiction and any stamp duties
or other duties or taxes become payable thereon in any such jurisdiction, the
Issuer will pay (or reimburse the person making payment of) such stamp duties or
other duties or taxes (including penalties). The obligations in this Section
2.17 shall survive the termination, defeasance or discharge of this Indenture.
SECTION 2.18 COVENANT OF COMPLIANCE
The Trustee shall be entitled to enforce the obligations of the Issuer
under the Notes as if the same were set out and contained in this Indenture,
which shall be read and construed as one document with the Notes. The Trustee
shall hold the benefit of this covenant upon trust for itself and the Holders
according to its and their respective interests. The Issuer and the Trustee
hereby agree that the Issuer and
41
the Trustee shall have the benefit of, be bound by and comply with all the
provisions of the Paying Agency Agreement.
SECTION 2.19 PROOF
Proof that as regards any specified Note the Issuer has defaulted in paying
any amount due in respect of such Note shall (unless the contrary be proved) be
sufficient evidence that the same default has been made as regards all other
Notes in respect of which the relevant amount is due and payable.
ARTICLE III
REDEMPTION
SECTION 3.01 NOTICES TO TRUSTEE
If the Issuer elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 or 3.09 hereof, it shall furnish to the Trustee, at
least 30 days but not more than 60 days before a Redemption Date, an Officers'
Certificate setting forth (i) the clause of this Indenture pursuant to which the
redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of
Notes to be redeemed (iv) the redemption price, and (v) in the case of
redemption under Section 3.09, a statement that the conditions precedent to such
redemption have been satisfied.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time, the Trustee
shall select the Notes to be redeemed among the Holders of the Notes in
compliance with the requirements of the principal securities exchange, if any,
on which the Notes are listed or, if the Notes are not so listed, on a PRO RATA
basis, by lot or in accordance with any other method the Trustee considers fair
and appropriate. In the event of partial redemption by lot, the particular Notes
to be redeemed shall be selected, unless otherwise provided herein, not less
than 30 nor more than 60 days prior to the Redemption Date by the Trustee from
the outstanding Notes not previously called for redemption. In the event of a
redemption of Global Notes, the Notes to be selected for redemption will be
determined in accordance with Applicable Procedures.
The Trustee shall promptly notify the Issuer in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of (euro)1,000 or whole multiples of
(euro)1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of (euro)1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03 NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a Redemption Date, the
Issuer shall provide notice of such redemption (and, following such notice,
shall publish the results of such redemption) to the Trustee and to the Holders
in accordance with Section 12.02.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the redemption price;
42
(c) the Common Code and/or ISIN number(s), if any;
(d) in the case of Definitive Registered Notes, if any such 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 shall be
issued upon cancellation of the original Note or with respect to a Global Note a
notation shall be made on Schedule A thereof to reduce the principal amount of
such Global Note to an amount equal to the unredeemed portion of the Global Note
surrendered;
(e) the name and address of the Paying Agent to which the Notes are to be
surrendered for redemption;
(f) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price and accrued interest and Additional
Amounts, if any;
(g) 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;
(h) the paragraph of the Notes and/or Section of this Indenture pursuant to
which the Notes called for redemption are being redeemed;
(i) that no representation is made as to the correctness or accuracy of the
Common Code and/or ISIN number, if any, listed in such notice or printed on the
Notes; and
(j) at the Issuer's request and expense, the Principal Paying Agent shall
give the notice of redemption in the Issuer's name; PROVIDED, HOWEVER, that the
Issuer shall have delivered to the Principal Paying Agent, at least 45 days
prior to the Redemption Date, and Officer's Certificate requesting that the
Principal Paying Agent 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 given 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. On
or after a Redemption Date, interest shall cease to accrue on Notes or portions
of them called for redemption unless payment of the total amount due is not made
to the Principal Paying Agent in accordance with Section 2.15, in which case
interest will continue to accrue as provided in Section 3.05.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
On or prior to the Redemption Date, the Issuer shall deposit with the
Principal Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Notes to be redeemed on that date, subject always to the
provisions of Section 2.16. The Principal Paying Agent shall promptly return to
the Issuer any money deposited with the Principal Paying Agent by the Issuer in
excess of the amounts necessary to pay the redemption price of, and accrued
interest on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding paragraph, on
and after the Redemption Date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related 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 shall not be
43
so paid upon surrender for redemption because of the failure of the Issuer to
comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the Redemption 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 IN PART
Upon surrender of a Definitive Registered Note that is redeemed in part,
the Issuer shall execute and the Principal Paying Agent shall authenticate for
the Holder a new Definitive Registered Note equal in principal amount to the
unredeemed portion of the Definitive Registered Note surrendered; PROVIDED that
each such Definitive Registered Note shall be in a principal amount of
(euro)1,000 or an integral multiple thereof. Upon surrender of a Global Note
that is redeemed in part, the Principal Paying Agent shall make a notation on
SCHEDULE A thereof to reduce the principal amount of such Global Note to an
amount equal to the unredeemed portion of the Global Note surrendered, PROVIDED
that each such Global Note shall be in a principal amount of (euro)1,000 or an
integral multiple thereof.
SECTION 3.07 OPTIONAL REDEMPTION
(a) Except as set forth in clause (b) of this Section 3.07, the Issuer
shall not have the option to redeem the Notes pursuant to this Section 3.07
prior to May 15, 2005. On or after May 15, 2005, the Issuer shall have the
option to redeem the Notes, in whole or in part, at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest and Special Interest and Additional Amounts, if any, to the
applicable Redemption Date, if redeemed during the twelve-month period beginning
on May 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2005............................. 109.00%
2006............................. 106.75%
2007............................. 104.50%
2008............................. 103.00%
2009............................. 101.50%
2010 and thereafter.............. 100.00%
(b) Notwithstanding the provisions of clause (a) of this Section 3.07, at
any time prior to May 15, 2005, the Issuer may on one or more occasions redeem
up to 35% of the aggregate principal amount of Notes issued under this Indenture
at a redemption price of 109% of the principal amount, plus accrued and unpaid
interest and Special Interest, if any, to the Redemption Date, with the net cash
proceeds of one or more Public Equity Offerings; PROVIDED that: (1) at least 65%
of the aggregate principal amount of Notes issued under this Indenture remains
outstanding immediately after the occurrence of such redemption (excluding Notes
held by the Issuer and its Subsidiaries); and (2) the redemption occurs within
60 days of the date of the closing of such Public Equity Offering.
(c) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 MANDATORY REDEMPTION
The Issuer shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
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SECTION 3.09 REDEMPTION FOR CHANGES ON WITHHOLDING TAX
The Issuer may, at its option, redeem all (but not less than all) of the
Notes then outstanding, in each case at 100% of the principal amount thereof,
plus accrued and unpaid interest and Special Interest to the Redemption Date, if
the Issuer has become, or would become, obligated to pay, on the next Interest
Payment Date, any Additional Amounts as a result of change in law (including any
regulations promulgated thereunder) or in the interpretation or administration
thereof, if such change is announced and becomes effective on or after the Issue
Date. Notice of any such redemption must be given within 60 days of the earlier
of the announcement and the effectiveness of any such change.
Any redemption pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.05 hereof.
ARTICLE IV
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Issuer shall pay or cause to be paid the principal of, premium, if any,
and interest and Special Interest and Additional Amounts, if any, on the Notes
on the dates and in the manner provided in the Notes and in this Indenture. The
Trustee will hold the benefit of this covenant in trust for the Holders and
itself in accordance with this Indenture. Principal, premium, if any, and
interest and Special Interest and Additional Amounts, if any, shall be
considered paid on the date due if the Principal Paying Agent, if other than the
Issuer or a Subsidiary thereof, holds 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 and Special Interest and Additional
Amounts, if any, then due.
The Issuer shall 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 shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Amounts and Special Interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
The Trustee shall hold the benefit of the Parallel Debt and the pledges
constituted by the Pool Acquisition Pledge Agreement on trust for itself and the
Holders in accordance with their respective interests under this Indenture. To
the extent that the Issuer makes a payment of all or any part of the Parallel
Debt to The Bank of New York pursuant to the terms and conditions of the Pool
Acquisition Pledge Agreement, such payment shall be deemed to be a payment by
the Issuer to the Trustee (as Trustee for the Holders) of the Issuer's
Obligations under the Notes and this Indenture and the Trustee shall hold such
payments on trust for itself and the Holders in accordance with their respective
interests under this Indenture. As soon as practicable after The Bank of New
York receives a payment of all or any part of the Parallel Debt, it shall
(subject to the provisions of Section 2.16 hereof) remit such payment to the
Principal Paying Agent (having, where applicable, deducted any amount required
to be applied pursuant to Article 2 of the Pool Acquisition Pledge Agreement
and/or Section 6.10 hereof). As soon as practicable after the Principal Paying
Agent receives a payment from The Bank of New York in respect of the Parallel
Debt, it shall remit such amounts to the Holders pursuant to the terms of the
Paying Agent Agreement. Each and all payments of the Parallel Debt by the Issuer
shall be deemed payments of the Issuer's Obligations under the Notes and this
Indenture on the Business Day such payments are made by the Issuer to The Bank
of New York pursuant to the terms of the Pool Acquisition Pledge Agreement.
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SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY
The Issuer shall maintain the offices and agencies specified in Section
2.03 hereof. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency.
The Issuer may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; PROVIDED, HOWEVER,
that no such designation or rescission shall in any manner relieve the Issuer of
its obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Pursuant to Section 2.03 hereof and the Paying Agency Agreement, the Issuer
has appointed The Bank of New York as Principal Paying Agent, the New York
Paying Agent and Registrar and has appointed The Bank of New York (Luxembourg)
S.A. as the Luxembourg Paying Agent and Registrar.
SECTION 4.03 REPORTS
The Issuer shall furnish to the Holders and the Trustee and make available
to potential investors:
(1) with respect to the fiscal year ending December 31, 2002, (A) within
120 days after the end of such fiscal year, financial statements
substantially identical to that which would be required to be included
in the Annual Report on Form 20-F by a foreign private issuer subject
to the US Exchange Act except that the Issuer shall not be required to
include any reconciliation of line items to United States generally
accepted accounting principles; and (B) within 180 days after the end
of the Issuer's fiscal year, information substantially identical to
that which would be required to be included in such Annual Report on
Form 20-F by such a foreign private issuer;
(2) with respect to the fiscal year ending December 31, 2003 and each
fiscal year thereafter, within 120 days after the end of the Issuer's
fiscal year, information substantially identical to that which would
be required to be included in such Annual Report on Form 20-F by such
a foreign private issuer;
(3) within 60 days after the end of each of the first three fiscal
quarters in each fiscal year of the Issuer, all quarterly financial
statements that would be required by Form 10-Q (in Finnish GAAP) if
the Issuer were required to prepare and file such form; PROVIDED, that
the Issuer may provide such information within 90 days after the end
of the fiscal quarter ended March 31, 2002; and
(4) within the time periods applicable to each item set forth in Form 8-K
and in accordance with the general instructions thereto, all
information that would be required by Form 8-K if the Issuer were
required to prepare and file such form.
If the Issuer has designated any of its Subsidiaries as an Unrestricted
Subsidiary and if any Unrestricted Subsidiary is a Significant Subsidiary or all
of the Unrestricted Subsidiaries, taken together, would constitute a Significant
Subsidiary (and if such Unrestricted Subsidiary or Subsidiaries are not
accounted for as discontinued operations), then the annual and quarterly
information required by the first two paragraphs of this covenant shall 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
46
Issuer and its Restricted Subsidiaries separate and apart from the financial
condition and results of operations of such Unrestricted Subsidiary or group of
Unrestricted Subsidiaries.
The Trustee is provided with the information described above and the other
Officers' Certificates, fairness opinions and resolutions of the Board of
Directors described under this Article IV and Article V for reference purposes
only and is under no duty to examine such information to ensure compliance with
the provisions of this Indenture or to ascertain the correctness or otherwise of
the information or the statements contained therein or in such certificates,
opinions or resolutions. The Trustee is entitled to assume such compliance and
correctness unless it is informed otherwise.
In addition, so long as the Notes remain outstanding and during any period
during which the Issuer is not subject to Section 13 or 15(d) of the US Exchange
Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Issuer shall furnish to
the Holders and to prospective investors, upon their requests, the information
required to be delivered pursuant to Rule 144A(d)(4) under the US Securities
Act.
SECTION 4.04 COMPLIANCE CERTIFICATE
(a) The Issuer shall deliver to the Trustee, within 90 days after the end
of each fiscal year (without the need for any request by the Trustee) and at any
other time (within 14 days of a request therefor by the Trustee), an Officers'
Certificate stating that a review of the activities of such entity and its
Subsidiaries during the preceding fiscal year or, as the case may be, during the
12-month period ending on the date of such request, has been made under the
supervision of the signing Officers with a view to determining whether the
Issuer has kept, observed, performed and fulfilled its obligations under this
Indenture and the Pledge Agreements, and further stating, as to each such
Officer signing such Officers' Certificate, that to the best of his or her
knowledge the Issuer has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and in the Pledge Agreements and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture and the Pledge Agreements (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what action the Issuer 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 or Special Interest or
Additional Amounts, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Issuer is taking or
proposes to take with respect thereto.
(b) The Issuer shall, so long as any of the Notes are outstanding, 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 Issuer is taking or proposes to take with respect
thereto.
SECTION 4.05 TAXES
The Issuer shall pay, and shall cause each of its Restricted 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 materially prejudicial in any
material respect to the interests of the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS
The Issuer covenants (to the extent that it may lawfully do so) that it
shall 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 in force, that may affect the covenants or
the performance of this Indenture and the Pledge Agreements; and the Issuer (to
the extent that it may
47
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein and in the Pledge Agreements granted
to the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07 CHANGE OF CONTROL
If a Change of Control occurs, the Issuer shall, within 10 days following
the occurrence of such Change of Control, commence an offer (a "CHANGE OF
CONTROL OFFER") to repurchase all of the Notes for cash equal to 101% of the
aggregate principal amount of Notes repurchased, plus accrued and unpaid
interest and Special Interest and Additional Amounts, if any, on the Notes
repurchased, to the date of purchase.
The Change of Control Offer shall remain open for a period of 30 days
following its commencement and no longer, except to the extent that a longer
period is required by applicable law (the "CHANGE OF CONTROL OFFER PERIOD"). No
later than five Business Days after the termination of the Change of Control
Offer Period (the "CHANGE OF CONTROL PURCHASE DATE"), the Issuer shall purchase
all Notes validly tendered in the Change of Control Offer. If and for so long as
the Notes are listed on the Luxembourg Stock Exchange and the rules of that
exchange so require, the Issuer shall publish notices relating to the Change of
Control Offer in a leading newspaper of general circulation in Luxembourg (which
is expected to be the LUXEMBURGER WORT).
If the Change of Control Purchase Date is on or after the Regular Record
Date and on or before the related Interest Payment Date, any accrued and unpaid
interest and Special Interest and Additional Amounts, if any, shall be paid to
the Person in whose name a Note is registered at the close of business on such
Regular Record Date, and no additional interest, Special Interest, Additional
Amounts or such other amounts shall be payable to Holders who tender Notes
pursuant to the Change of Control Offer.
Upon the commencement of a Change of Control Offer, the Issuer shall give
notice thereof to the Trustee and to each of the Holders in accordance with
Section 12.02. The Issuer shall also provide timely notice to, and shall
cooperate in all respects with, Clearstream Banking and Euroclear, and any
successor Depositaries, to enable them to provide notice of the Change of
Control Offer to all Participants and Indirect Participants who hold Notes
within such systems and to allow such Participants and Indirect Participants to
tender their Notes in such offer. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Change of Control Offer. The Change of Control Offer shall be made to all
Holders. The notice, which shall govern the terms of the Change of Control
Offer, shall:
(a) state that the Change of Control Offer is being made pursuant to this
Section 4.07 hereof and the length of time the Change of Control Offer shall
remain open;
(b) describe the transaction or transactions that constitute the Change of
Control and shall describe the circumstances and relevant facts regarding the
Change of Control (including information with respect to pro forma historical
income, cash flow and capitalization, in each case after giving effect to such
Change of Control);
(c) state the purchase price and the Change of Control Purchase Date;
(d) state that any Note not tendered or accepted for payment shall continue
to accrue interest;
48
(e) state that, unless the Issuer defaults in making such payment, any Note
accepted for payment pursuant to the Change of Control Offer shall cease to
accrete or accrue interest after the Change of Control Purchase Date;
(f) that Holders electing to have a Note purchased pursuant to a Change of
Control Offer may elect to have Notes purchased in integral multiples of
(euro)1,000 only;
(g) that Holders electing to have a Note purchased pursuant to any Change
of Control Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note 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 during the
Change of Control Offer Period;
(h) that Holders shall 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
Xxxxxx is withdrawing his election to have such Note purchased;
On or before the Change of Control Purchase Date, the Issuer shall, to the
extent lawful, accept for payment, all Notes or portions thereof tendered
pursuant to the Change of Control Offer and shall deliver to the Trustee 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 4.07.
Upon receipt from the Issuer of the purchase price for the Notes accepted for
payment, the Principal Paying Agent shall promptly (but in any case not later
than five days after the Change of Control 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 in the case
of Definitive Registered Notes the Issuer shall promptly issue a new Note, and
the Principal Paying Agent, upon written request from the Issuer shall
authenticate and mail or deliver 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 Principal Paying Agent to
the Holder thereof. The Issuer shall publicly announce the results of the Change
of Control Offer on the Change of Control Purchase Date.
The Issuer will comply with any applicable securities laws and regulations
in connection with each repurchase of Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with this Section 4.07, the Issuer will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations under this Section 4.07 by virtue of such conflict.
Notwithstanding the foregoing provisions of this Section 4.07, the Issuer
will not be required to make a Change of Control Offer upon a Change of Control
if 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 Section 4.07
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.
49
SECTION 4.08 ASSET SALES
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(1) the Issuer or the Restricted Subsidiary, as the case may be, receives
consideration (including non-cash 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;
(2) the fair market value is determined in good faith by the Issuer's
Board of Directors and evidenced by a resolution of the Issuer's Board
of Directors set forth in an Officers' Certificate delivered to the
Trustee; and
(3) at least 75% of the consideration received in the Asset Sale by the
Issuer or such Restricted Subsidiary is in the form of Cash
Equivalents. For purposes of this provision, each of the following
shall be deemed to be Cash Equivalents:
(a) any liabilities, as shown on the Issuer or such Restricted
Subsidiary's most recent consolidated balance sheet, of the Issuer or any
Restricted Subsidiary (other than contingent liabilities and liabilities
that are by their terms subordinated to the Notes) that are assumed by the
transferee of any such assets pursuant to a customary novation agreement
that releases the Issuer or such Restricted Subsidiary from further
liability; and
(b) any securities, Notes or other obligations received by the Issuer
or any such Restricted Subsidiary from such transferee that are
contemporaneously, subject to ordinary settlement periods, converted by the
Issuer or such Restricted Subsidiary into cash, to the extent of the cash
received in that conversion.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale,
the Issuer or the Restricted Subsidiary, as the case may be, may apply those Net
Proceeds:
(1) to repay Indebtedness under the Credit Agreement; PROVIDED that if
such Indebtedness repaid is revolving credit Indebtedness, the
commitment with respect thereto is correspondingly reduced;
(2) to acquire all or substantially all of the assets of, or the Voting
Stock of, another Permitted Business that, upon consummation of such
acquisitions, becomes a Restricted Subsidiary;
(3) to make a capital expenditure;
(4) to acquire property, plant or equipment that are used in a Permitted
Business; or
(5) to acquire shares in Keramag Keramische Werke AG, Sanitec Kolo Sp.
Z.o.o., Sanitec International S.A., Polyroc S.A., Koralle
International GmbH, Allia S.A., Omnium de Distribution Sanitaires
Sp.Zo.o, Murena S.A. or Sphinx Gustavsberg Wroclaw Sp.z.o.o. not owned
by the Issuer or any Restricted Subsidiary for a price that does not
exceed the fair market value of such shares, as determined in good
faith by the Issuer's Board of Directors and set forth in an Officers'
Certificate delivered to the Trustee.
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Pending the final application of any Net Proceeds, the Issuer may
temporarily reduce revolving credit borrowings or otherwise invest the Net
Proceeds in any manner that is not prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraph shall constitute "EXCESS PROCEEDS". When the
aggregate amount of Excess Proceeds exceeds (euro)15,000,000, the Issuer shall
make an offer (an "ASSET SALE OFFER") 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 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 shall be equal to 100%
of principal amount plus accrued and unpaid interest and Special Interest and
Additional Amounts, if any, to the date of purchase, and shall be payable in
cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer,
the Issuer 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 shall allocate the Excess Proceeds among
the Notes and such other PARI PASSU Indebtedness on a pro rata basis and the
Trustee will select the Notes to be purchased on a pro rata basis. Upon
completion of each Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
The Asset Sale Offer shall remain open for a period of 30 days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the "ASSET SALE OFFER PERIOD"). No later than five
Business Days after the termination of the Asset Sale Offer Period (the "ASSET
SALE PURCHASE DATE"), the Issuer shall purchase the principal amount of Notes
required to be purchased pursuant to this Section 4.08 hereof (the "OFFER
AMOUNT") or, if less than the Offer Amount has been tendered, all Notes tendered
in response to the Asset Sale Offer.
If and for so long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of that exchange so require, the Issuer shall publish notices
relating to the Asset Sale Offer in a leading newspaper of general circulation
in Luxembourg (which is expected to be the LUXEMBURGER WORT).
If the Asset Sale Purchase Date is on or after the Regular Record Date and
on or before the related Interest Payment Date, any accrued and unpaid interest
and Special Interest and Additional Amounts, if any, shall be paid to the Person
in whose name a Note is registered at the close of business on such Regular
Record Date, and no additional interest, Special Interest, Additional Amounts or
such other amounts shall be payable to Holders who tender Notes pursuant to the
Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuer shall give notice
thereof to the Trustee and to each of the Holders in accordance with Section
12.02. The Issuer shall also provide timely notice to, and shall cooperate in
all respects with, Clearstream Banking and Euroclear, and any successor
Depositaries, to enable them to provide notice of the Asset Sale Offer to all
Participants and Indirect Participants who hold Notes within such systems and to
allow such Participants and Indirect Participants to tender their Notes in such
offer. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.08
hereof and the length of time the Asset Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Asset Sale Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to
accrue interest;
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(d) that, unless the Issuer defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or
accrue interest after the Asset Sale Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may elect to have Notes purchased in integral multiples of
(euro)1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any Asset
Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note 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 during the
Asset Sale Offer Period;
(g) that Holders shall 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 Asset Sale 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 Xxxxxx is withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders
exceeds the Offer Amount, the Issuer shall select the Notes to be purchased on a
PRO RATA basis (with such adjustments as may be deemed appropriate by the Issuer
so that only Notes in denominations of (euro)1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall 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 Asset Sale Purchase Date, the Issuer shall, 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 shall deliver to the Trustee 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 4.08. Upon receipt from the Issuer of the
purchase price for the Notes accepted for payment, the Principal Paying Agent
shall promptly (but in any case not later than five days after the Asset Sale
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 in the case of Definitive Registered Notes the Issuer shall
promptly issue a new Note, and the Principal Paying Agent, upon written request
from the Issuer shall authenticate and mail or deliver 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 Principal Paying Agent to the Holder thereof. The Issuer shall publicly
announce the results of the Asset Sale Offer on the Asset Sale Purchase Date.
The Issuer will comply with any applicable securities laws and regulations
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 this Section 4.08, the Issuer will comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under this Section 4.08 by virtue of such conflict.
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SECTION 4.09 RESTRICTED PAYMENTS
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly (all such payments and other actions set
forth in the immediately following clauses (1) through (4) being collectively
referred to as "RESTRICTED PAYMENTS"):
(1) declare or pay any dividend or make any other payment or distribution
on account of the Issuer or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any payment in connection
with any merger or consolidation involving the Issuer or any of its
Restricted Subsidiaries) or to the direct or indirect holders of the
Issuer 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 Shares) of the Issuer or
to the Issuer or a Restricted Subsidiary of the Issuer);
(2) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation
involving the Issuer) any Equity Interests of the Issuer or any direct
or indirect parent of the Issuer;
(3) make any payment on or with respect to, or purchase, redeem, defease
or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes; or
(4) make any Restricted Investment;
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; and
(2) the Issuer would have been permitted to incur at least (euro)1.00 of
additional Indebtedness (other than Permitted Debt) pursuant to the
Consolidated Coverage Ratio test set forth in the first paragraph of
Section 4.10; and
(3) such Restricted Payment, together with the aggregate amount of all
other Restricted Payments made by the Issuer and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments
permitted by clauses (2), (3), (4) and (5) of the next succeeding
paragraph), is less than the sum, without duplication, of:
(a) 50% of the Consolidated Net Income of the Issuer for the period
(taken as one accounting period) from the beginning of the first fiscal
quarter commencing after the Issue Date to the end of the Issuer'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 Issuer
since the Issue Date as a contribution to its Share Capital (other than
Disqualified Shares) or from the issue or sale of Equity Interests of the
Issuer (other than Disqualified Shares) or from the issue or sale of
Subordinated Shareholder Indebtedness of the Issuer or from the issue or
sale of convertible or exchangeable Disqualified Shares or convertible or
exchangeable debt securities of the Issuer that have been converted into or
exchanged for such Equity Interests (other than Equity Interests (or
Disqualified Shares or debt securities) sold to a Subsidiary of the
Issuer), PLUS
53
(c) to the extent that any Restricted Investment that was made after
the Issue Date is sold for cash or otherwise liquidated or repaid for cash,
the lesser of (i) the cash return of capital with respect to such
Restricted Investment (less the cost of disposition, if any) and (ii) the
initial amount of such Restricted Investment, PLUS
(d) 50% of any cash dividends received after the Issue Date from an
Unrestricted Subsidiary by the Issuer or a Wholly-Owned Restricted
Subsidiary, or with respect to such dividends received by a Restricted
Subsidiary that is not a Wholly-Owned Restricted Subsidiary, a percentage
of such dividends equal the percentage of the Share Capital of such
Restricted Subsidiary Beneficially Owned by the Issuer divided by two, in
each case to the extent that such dividends were not otherwise included in
Consolidated Net Income of the Issuer for such period, PLUS
(e) to the extent that any Unrestricted Subsidiary of the Issuer is
redesignated as a Restricted Subsidiary after the Issue Date, the lesser of
(i) the fair market value of the Issuer's Investment in such Subsidiary as
of the date of such redesignation or (ii) such fair market value as of the
date on which such Subsidiary was originally designated as an Unrestricted
Subsidiary plus the amount of any subsequent Investments of the Issuer in
such Subsidiary prior to such redesignation.
So long as no Event of Default has occurred and is continuing or would be
caused thereby, the preceding provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration of the dividend, if at the date of declaration the
dividend payment would have complied with the provisions of this
Indenture;
(2) the purchase, redemption, repurchase, retirement, defeasance or other
acquisition of any subordinated Indebtedness of the Issuer or of any
Subordinated Shareholder Indebtedness of the Issuer or of any Equity
Interests of the Issuer in exchange for Equity Interests (other than
Disqualified Shares) of the Issuer, or out of the net cash proceeds of
(a) the substantially concurrent sale (other than to a Subsidiary of
the Issuer) of, Equity Interests (other than Disqualified Shares) of
the Issuer, (b) the substantially current cash contribution to its
Share Capital (other than Disqualified Shares), or (c) the issue or
sale of Subordinated Shareholder Indebtedness;
(3) the purchase, redemption, repurchase, retirement, defeasance or other
acquisition of subordinated Indebtedness of the Issuer with the net
cash proceeds from an incurrence of Permitted Refinancing
Indebtedness;
(4) the payment of any dividend by a Restricted Subsidiary of the Issuer
to the holders of its Equity Interests on a pro rata basis or on
another basis if so required by applicable law;
(5) the payment or loan to the Parent or GermanCo, if at the time of such
payment the Parent or GermanCo, as the case may be, is the parent
company of the Issuer, of amounts required to (i) pay audit fees and
expenses incurred by Parent or GermanCo attributable to the business
of the Issuer and its Restricted Subsidiaries; (ii) make payments with
respect to customary salary, bonus and other benefits payable to
directors, officers and employees of the Parent or GermanCo, to the
extent that such salaries, bonuses and other payments are actually
paid and are attributable to the ownership or operation of the Issuer
and its Restricted Subsidiaries; (iii) pay other expenses incurred to
maintain the corporate existence of the Parent and GermanCo to the
extent that such corporate existence is
54
necessary for the continued operation of the Issuer and its Restricted
Subsidiaries; PROVIDED that the aggregate amount paid under subclauses
(i), (ii) and (iii) of this clause (5) shall not exceed
(euro)3,500,000 in any fiscal year except to the extent that the
Issuer's Board of Directors, pursuant to a resolution set forth in an
Officers' Certificate delivered to the Trustee, determines and
certifies to the Trustee that additional amounts are necessary to be
paid under subclauses (i), (ii) and (iii) of this clause (5); and (iv)
pay any federal, state or local Taxes to the extent that such Taxes
are directly attributable to the ownership or operation of the Issuer
and its Restricted Subsidiaries;
(6) the repurchase, redemption or other acquisition or retirement for
value of any Equity Interests of the Issuer or any Subsidiary of the
Issuer held by any member of management pursuant to any management
equity subscription agreement, stock option agreement or similar
agreement; PROVIDED that the aggregate price paid for all such
repurchased, redeemed, acquired or retired Equity Interests may not
exceed (euro)5,000,000 in any fiscal year period;
(7) the repayment of all or, from time to time, any part of the PIK
On-Loan 1 if the proceeds of such repayment are used to repay or
redeem the PIK Loan and if, after repayment of the PIK On-Loan 1 and
after giving effect thereto, the Issuer's Leverage Ratio is less than
4.0 to 1; and
(8) following a Public Equity Offering, any dividend on the ordinary
shares of the Issuer or any payment to GermanCo or the Parent in
respect of any dividend on the ordinary shares of GermanCo or the
Parent, as the case may be, that were issued in the Public Equity
Offering; provided, that (i) at the time of the declaration of the
payment of any such dividend, no Default or Event of Default shall
have occurred and be continuing (or result therefrom) and (ii) the
aggregate amounts of all such dividends under this clause shall not
exceed in any fiscal year 6% of the aggregate Net Proceeds received by
the Issuer from all of its Public Equity Offerings (or contributed to
the Issuer as Share Capital (other than as Disqualified Shares) or
loaned to the Issuer as Subordinated Shareholder Indebtedness if the
Public Equity Offering was made by the Parent or by GermanCo).
The amount of all Restricted Payments (other than cash) shall 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 Issuer or such 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 shall be
determined by the Issuer's Board of Directors whose resolution with respect
thereto shall be delivered to the Trustee. The determination of the Issuer's
Board of Directors must be based upon an opinion or appraisal issued by an
accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds (euro)5,000,000. Not later than the date of making any
Restricted Payment, the Issuer shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.09 were
computed, together with a copy of any fairness opinion or appraisal required by
this Indenture.
SECTION 4.10 INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED SHARES
The Issuer shall not, and shall not permit any of its 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 Debt), and the
Issuer shall not issue any Disqualified Shares and shall not permit any of its
Subsidiaries to issue any Preferred Shares; PROVIDED, HOWEVER, that the Issuer
may incur Indebtedness (including Acquired Debt) or issue Disqualified Shares
and the Issuer's Restricted Subsidiaries may incur Indebtedness or issue
55
Preferred Shares, if the Consolidated Coverage Ratio for the Issuer'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 Shares is issued would have been
at least 2.0 to 1, 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 Disqualified Shares had been issued, as the case may be, at
the beginning of such four-quarter period.
The first paragraph of this covenant shall not prohibit the incurrence of
any of the following items of Indebtedness (collectively, "PERMITTED DEBT"):
(1) the incurrence by the Issuer and any of its Restricted Subsidiaries of
term Indebtedness under Credit Facilities in an aggregate principal
amount at any one time outstanding under this clause (1) not to exceed
(euro)505,000,000 LESS the aggregate amount of all repayments,
optional or mandatory, of the principal of any term Indebtedness under
a Credit Facility (other than repayments that are concurrently
reborrowed) that have been made by the Issuer or any of its Restricted
Subsidiaries since the Issue Date;
(2) the incurrence by the Issuer and any of its Restricted Subsidiaries of
revolving credit Indebtedness and letters of credit under Credit
Facilities in an aggregate principal amount at any one time
outstanding under this clause (2)(with letters of credit being deemed
to have a principal amount equal to the maximum potential liability of
the Issuer and its Restricted Subsidiaries thereunder) not to exceed
the greater of (w) (euro)50,000,000 or (x) the amount of the Borrowing
Base as of the date of such incurrence; PROVIDED, that the aggregate
principal amount of all Indebtedness incurred pursuant to this clause
(2) shall be reduced by the aggregate amount of all commitment
reductions with respect to any revolving credit borrowings under a
Credit Facility that have been made by the Issuer or any of its
Restricted Subsidiaries since the Issue Date;
(3) the incurrence by the Issuer and its Restricted Subsidiaries of the
Existing Indebtedness;
(4) the incurrence by the Issuer of Indebtedness represented by the Notes
to be issued on the Issue Date and the Exchange Notes to be issued
pursuant to the Registration Rights Agreement;
(5) the incurrence by the Issuer 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 construction or improvement of property, plant or equipment used in
the business of the Issuer or such Restricted Subsidiary, in an
aggregate principal amount not to exceed (euro)25,000,000 at any time
outstanding;
(6) the incurrence by the Issuer or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net
proceeds of which are used to refund, refinance or replace
Indebtedness (other than intercompany Indebtedness) that was permitted
by this Indenture to be incurred under clauses (3), (4), (6) or (15)
of this paragraph;
(7) the incurrence by the Issuer or any of its Restricted Subsidiaries of
intercompany Indebtedness between or among the Issuer and any of its
Restricted Subsidiaries; PROVIDED, HOWEVER, that:
56
(a) if the Issuer is the obligor on such Indebtedness, such
Indebtedness must be unsecured and expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Notes; and
(b) (i) any subsequent issuance or transfer of Equity Interests that
results in any such Indebtedness being held by a Person other than the
Issuer or a Restricted Subsidiary of the Issuer and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not either the Issuer
or a Wholly-Owned Restricted Subsidiary of the Issuer; shall be deemed, in
each case, to constitute an incurrence of such Indebtedness by the Issuer
or such Restricted Subsidiary, as the case may be, that was not permitted
by this clause (7);
(8) the guarantee by the Issuer or any of its Restricted Subsidiaries of
Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer
that was permitted to be incurred by another provision of this
covenant;
(9) the incurrence by Unrestricted Subsidiaries of Non-Recourse Debt;
PROVIDED, HOWEVER, that if any such Indebtedness ceases to be
Non-Recourse Debt of an Unrestricted Subsidiary, such event shall be
deemed to constitute an incurrence of Indebtedness not permitted by
this covenant;
(10) the incurrence by a Receivables Subsidiary of Indebtedness in a
Qualified Receivables Transaction that is without recourse to the
Issuer or to any other Restricted Subsidiary of the Issuer or their
assets (other than such Receivables Subsidiary and its assets and, as
to the Issuer or any Restricted Subsidiary of the Issuer, other than
pursuant to representations, warranties, covenants and indemnities
customary for such transactions) and is not guaranteed by any such
Person;
(11) Indebtedness arising from the honoring by a bank or other financial
institution of a cheque, draft or similar instrument drawn against
insufficient funds or insufficient credit lines or facilities in the
ordinary course of business; PROVIDED, HOWEVER, that such Indebtedness
is extinguished within five Business Days of its incurrence;
(12) obligations in respect of performance, bid and surety bonds and
completion guarantees provided by or on behalf of the Issuer or any
Restricted Subsidiary in the ordinary course of business;
(13) any Hedging Obligations of the Issuer or any of its Restricted
Subsidiaries entered into in the ordinary course of business to hedge
or mitigate risks to which the Issuer or any of its Restricted
Subsidiaries is exposed in the conduct of its business or the
management of its liabilities and not for speculative purposes;
(14) the incurrence by the Issuer of Subordinated Shareholder Indebtedness;
and
(15) the incurrence by the Issuer or any of its Restricted Subsidiaries of
additional Indebtedness in an aggregate principal amount (or accreted
value, as applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause, not to exceed
(euro)50,000,000.
The Issuer shall not incur any Indebtedness (including Permitted Debt) 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,
57
HOWEVER, that no Indebtedness of the Issuer shall be deemed to be contractually
subordinated in right of payment to any other Indebtedness of the Issuer solely
by virtue of being unsecured.
For purposes of determining compliance with this Section 4.10, in the event
that an item of proposed Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described in clauses (1) through (15) above, or is
entitled to be incurred pursuant to the first paragraph of this covenant, the
Issuer shall be permitted to classify such item of Indebtedness on the date of
its incurrence in any manner that complies with this covenant. Indebtedness
under Credit Facilities outstanding on the Issue Date shall be deemed to have
been incurred on such date in reliance on clauses (1) and (2) of the second
paragraph of this Section 4.10.
SECTION 4.11 LIENS
The Issuer shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or suffer to exist any Lien in
respect of the incurrence of Indebtedness of any kind on any asset now owned or
hereafter acquired, except Permitted Liens.
SECTION 4.12 DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES
The Issuer shall not, and shall 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 Share Capital to
the Issuer 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 Issuer or any of its Restricted
Subsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted
Subsidiaries; or
(3) transfer any of its properties or assets to the Issuer or any of its
Restricted Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances or
restrictions existing under or by reason of:
(1) agreements governing Existing Indebtedness and Credit Facilities as in
effect on the Issue Date and any amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings of those agreements, PROVIDED that the
amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are no more
restrictive, taken as a whole, with respect to such dividend and other
payment restrictions than those contained in those agreements on the
Issue Date;
(2) this Indenture and the Notes;
(3) applicable law;
(4) any instrument governing Indebtedness or Share Capital of a Person
acquired by the Issuer or any of its Restricted Subsidiaries as in
effect at the time of such acquisition (except to the extent such
Indebtedness or Share Capital 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,
58
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) customary non-assignment provisions in leases entered into in the
ordinary course of business and consistent with past practices;
(6) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on that property of the
nature described in clause (3) of the preceding paragraph;
(7) any agreement for the sale or other disposition of a Restricted
Subsidiary or any assets of the Issuer or Restricted Subsidiary that
restricts distributions by that Restricted Subsidiary or such assets
pending sale or other disposition;
(8) Permitted Refinancing Indebtedness, PROVIDED that the restrictions
contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens securing Indebtedness otherwise permitted to be incurred under
the provisions of Section 4.11 that limit the right of the debtor to
dispose of the assets subject to such Liens;
(10) provisions with respect to the disposition or distribution of assets
or property in joint venture agreements, assets sale agreements, stock
sale agreements and other similar agreements entered into in the
ordinary course of business;
(11) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of
business;
(12) Indebtedness or other contractual requirements of a Receivables
Subsidiary in connection with a Qualified Receivables Transaction,
PROVIDED that such restrictions apply only to such Receivables
Subsidiary; and
(13) encumbrances or restrictions required by any governmental, local or
regulatory authority having jurisdiction over the Issuer or any
Restricted Subsidiary or any of their businesses in connection with
any development made or other assistance provided to the Issuer or any
Restricted Subsidiary by such governmental authority.
SECTION 4.13 TRANSACTIONS WITH AFFILIATES
The Issuer shall not, and shall 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 (each, an "AFFILIATE TRANSACTION"), unless:
(1) the Affiliate Transaction is on terms that are no less favorable to
the Issuer or the relevant Restricted Subsidiary than those that would
have been obtained in a comparable transaction by the Issuer or such
Restricted Subsidiary with an unrelated Person; and
59
(2) the Issuer delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
(euro)5,000,000, a resolution of the Issuer's Board of Directors 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 Issuer's Board
of Directors; and
(b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of
(euro)15,000,000, an opinion as to the fairness to the Issuer of such
Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of international
prominence.
The following items shall not be deemed to be Affiliate Transactions and,
therefore, shall not be subject to the provisions of the prior paragraph:
(1) any employment agreements entered into, or any stock options, loans or
advances made to employees, by the Issuer or any of its Restricted
Subsidiaries in the ordinary course of business and consistent with
the past practice of the Issuer or such Restricted Subsidiary;
(2) transactions between or among the Issuer and/or its Restricted
Subsidiaries;
(3) transactions between a Receivables Subsidiary and any Person in which
the Receivables Subsidiary has an Investment;
(4) transactions with a Person that is an Affiliate of the Issuer solely
because the Issuer owns an Equity Interest in, or controls, such
Person;
(5) payment of reasonable directors fees to Persons who are not otherwise
Affiliates of the Issuer;
(6) sales of Equity Interests (other than Disqualified Shares) to
Affiliates of the Issuer; and
(7) Restricted Payments that are permitted by Section 4.09.
SECTION 4.14 DESIGNATION OF RESTRICTED AND UNRESTRICTED SUBSIDIARIES
The Board of Directors of the Issuer may designate any Restricted
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default or an Event of Default, PROVIDED that in no event shall the business
currently operated by Sanitec be transferred to or held by an Unrestricted
Subsidiary. If a Restricted Subsidiary is designated as an Unrestricted
Subsidiary, the aggregate fair market value of all outstanding Investments owned
by the Issuer and its Restricted Subsidiaries in the Subsidiary properly
designated shall be deemed to be an Investment made as of the time of the
designation and shall reduce the amount available for Restricted Payments under
the first paragraph of Section 4.09 or Permitted Investments, as determined by
the Issuer. That designation shall 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 Issuer's Board of Directors may
redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the
redesignation would not cause a Default or an Event of Default.
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SECTION 4.15 SALE AND LEASEBACK TRANSACTIONS
The Issuer shall not, and shall not permit any of its Subsidiaries to,
enter into any sale and leaseback transaction; PROVIDED that the Issuer or any
Restricted Subsidiary may enter into a sale and leaseback transaction if:
(1) the Issuer or that Restricted Subsidiary, as the case may be, could
have (a) incurred Indebtedness in an amount equal to the Attributable
Debt relating to such sale and leaseback transaction under Section
4.10 and (b) incurred a Lien to secure such Indebtedness pursuant to
Section 4.11;
(2) 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 Issuer's Board of Directors 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
(3) the transfer of assets in that sale and leaseback transaction is
permitted by, and the Issuer applies the proceeds of such transaction
in compliance with, Section 4.08.
SECTION 4.16 LIMITATION ON ISSUANCES AND SALES OF EQUITY INTERESTS IN RESTRICTED
SUBSIDIARIES
The Issuer shall not, and shall not permit any of its Restricted
Subsidiaries to, transfer, convey, sell, lease or otherwise dispose of any
Equity Interests in any Restricted Subsidiary of the Issuer to any Person (other
than the Issuer or a Restricted Subsidiary of the Issuer), unless:
(1) immediately after giving effect to such transfer, conveyance, sale,
lease or other disposition, (a) neither the Issuer nor any of its
Restricted Subsidiaries owns any Equity Interests of such Restricted
Subsidiary; or (b) such Restricted Subsidiary would no longer
constitute a Restricted Subsidiary and the aggregate fair market value
of all outstanding Investments owned by the Issuer and its Restricted
Subsidiaries in such Person remaining after giving effect thereto
shall be deemed to be an Investment, and such Investment must be able
to be made, and must in fact be made, under Section 4.09 and such
Investment shall reduce the amount available for Restricted Payments
under the first paragraph of such covenant; and
(2) the cash Net Proceeds from such transfer, conveyance, sale, lease or
other disposition are applied in accordance with Section 4.08.
Notwithstanding the foregoing, Koralle International GmbH and holders of
its Share Capital may in one or a series of transactions issue or transfer its
Share Capital to Persons other than to the Issuer or its Restricted
Subsidiaries; PROVIDED that at all times during such series of transactions it
remains a Restricted Subsidiary of the Issuer; AND PROVIDED FURTHER that at the
conclusion of such series of transactions the percentage of its outstanding
Share Capital not owned by the Issuer or its Restricted Subsidiaries does not
exceed 6%.
In addition, the Issuer shall not permit any Restricted Subsidiary of the
Issuer to issue any of its Equity Interests (other than, if necessary, Share
Capital constituting directors' qualifying shares) to any Person other than to
the Issuer or a Restricted Subsidiary of the Issuer.
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SECTION 4.17 LIMITATIONS ON ISSUANCES OF GUARANTEES OF INDEBTEDNESS
The Issuer shall not permit any of its Restricted Subsidiaries, directly or
indirectly, to Guarantee or pledge any assets to secure the payment of any other
Indebtedness of the Issuer unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture providing for a Guarantee of the
payment of the Notes by such Restricted Subsidiary, which Guarantee shall be
senior to or PARI PASSU with such Restricted Subsidiary's Guarantee of or pledge
to secure such other Indebtedness.
SECTION 4.18 AMENDMENTS TO CERTAIN LOANS
Without the consent of the Holders of at least 75% in aggregate principal
amount of the Notes then outstanding, the Issuer shall not, and shall not permit
any Affiliate to, amend, modify, supplement, waive or alter the PIK On-Loan 1,
the Shareholder On-Loan 1, any Subordinated Shareholder Indebtedness or the PIK
On-Loan 1 and Shareholder On-Loan 1 Subordination Agreement in any way to:
(1) increase the rate of or change the time for payment of cash interest
on the PIK On-Loan 1, the Shareholder On-Loan 1 or any Subordinated
Shareholder Indebtedness;
(2) increase the principal of, advance the final maturity date of, or
shorten the Weighted Average Life to Maturity of, amounts outstanding
under the PIK On-Loan 1, the Shareholder On-Loan 1 or any Subordinated
Shareholder Indebtedness; or
(3) amend any provisions of the PIK On-Loan 1, the Shareholder On-Loan 1,
any Subordinated Shareholder Indebtedness or the PIK On-Loan 1 and
Shareholder On-Loan 1 Subordination Agreement in any manner adverse to
the interests of the Holders.
Without the consent of the Holders of at least 75% in aggregate principal
amount of the Notes then outstanding, the Issuer shall not, and shall not permit
a Restricted Subsidiary to, amend, modify, supplement, waive or alter any PIK
On-Loan 2 and the Shareholder On-Loan 2 or the Notes On-Loan in any way to:
(1) decrease the rate of or change the time for payment of interest on the
PIK On-Loan 2 and the Shareholder On-Loan 2 or the Notes On-Loan;
(2) decrease the principal of, delay the final maturity date of, or
lengthen the Weighed Average Life to Maturity of, the PIK On-Loan 2
and the Shareholder On-Loan 2 or the Notes On-Loan; or
(3) amend any provisions of the PIK On-Loan 2 and the Shareholder On-Loan
2 or the Notes On-Loan in any manner adverse to the interests of the
Holders.
SECTION 4.19 REPAYMENT OF CERTAIN LOANS
Except as may be permitted by Section 4.09, neither the Issuer nor any
Restricted Subsidiary shall at any time make any payments with respect to the
PIK On-Loan 1 or the Shareholder On-Loan 1 or any Subordinated Shareholder
Indebtedness.
SECTION 4.20 BUSINESS ACTIVITIES
The Issuer shall not, and shall not permit any Restricted Subsidiary to,
engage in any business other than Permitted Businesses, except to such extent as
would not be material to the Issuer and its Restricted Subsidiaries taken as a
whole.
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SECTION 4.21 ADVANCES TO RESTRICTED SUBSIDIARIES
All advances to Restricted Subsidiaries (other than the Notes On-Loan) made
by the Issuer after the Issue Date shall be made under the PIK On-Loan 2 and the
Shareholder On-Loan 2.
SECTION 4.22 PAYMENTS FOR CONSENT
The Issuer shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, pay or cause to be paid any consideration to or for the
benefit of any Holder 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 4.23 LIQUIDATION OF POOL ACQUISITION NETHERLANDS B.V.
All of the Share Capital of Sanitec and all other assets of Pool
Acquisition Netherlands B.V. (in liquidation) shall be transferred to the Issuer
on or prior to December 31, 2002, whether through completion of the dissolution
and liquidation of Pool Acquisition Netherlands B.V. (in liquidation) or
otherwise. Upon such transfer, the Issuer shall cause all notifications required
by the Notes Security Pledge Agreement to be made and to take all actions
necessary to provide that the pledge of the Share Capital of Sanitec under such
pledge agreement for the benefit of the Trustee and the Holders of the Notes is
duly and validly perfected as a second priority pledge. Prior to such transfer,
the Issuer shall pledge the Share Capital of Pool Acquisition Netherlands B.V.
(in liquidation) under the Pool Acquisition Pledge Agreement to secure the
payment and performance when due of the Issuer's Obligations under this
Indenture and the Notes. The Trustee shall terminate the Pool Acquisition Pledge
Agreement upon perfection of the pledge of the Share Capital of Sanitec pursuant
to the Notes Security Pledge Agreement.
SECTION 4.24 ADDITIONAL AMOUNTS
All payments made under, or with respect to, the Notes shall be made free
and clear 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 Taxing
Authority within Luxembourg or within any other jurisdiction in which the Issuer
or any Surviving Entity is organized or resident for tax purposes or any
political subdivision thereof or any Taxing Authority therein (each, a "RELEVANT
TAXING JURISDICTION"), unless the Issuer or any Surviving Entity is required to
withhold or deduct Taxes by law or by the interpretation or administration
thereof.
If the Issuer or any Surviving Entity is required to withhold or deduct any
amount for, or on account of, Taxes imposed by a Relevant Taxing Jurisdiction,
from any payment made under or with respect to the Notes, the Issuer or the
Surviving Entity shall pay such additional amounts ("ADDITIONAL AMOUNTS") as may
be necessary so that the net amount received by each Holder (including
Additional Amounts) after such withholding or deduction shall equal the amount
the Holder would have received if such Taxes had not been withheld or deducted;
PROVIDED, HOWEVER, that no Additional Amounts shall be payable with respect to:
(1) any Tax that would not have been imposed, payable or due but for the
existence of any connection between the Holder (or the beneficial
owner of, or person ultimately entitled to obtain an interest in, such
Notes) and the Relevant Taxing Jurisdiction (including being a citizen
or resident or national of, or carrying on a business or maintaining a
permanent establishment in, or being physically present in, the
Relevant Taxing Jurisdiction) other
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than the mere holding of the Notes or enforcement of rights thereunder
or the receipt of payments in respect thereof;
(2) any Tax that would not have been imposed, payable or due but for the
failure to satisfy any certification, identification or other
reporting requirements whether imposed by statute, treaty, regulation
or administrative practice; provided, however, that the Issuer or any
Surviving Entity has delivered a request to the Holder to comply with
such requirements reasonably prior to the date by which such
compliance is required giving each Holder reasonably sufficient time
to satisfy those requirements;
(3) any Tax that would not have been imposed, payable or due if the
presentation of Notes (where presentation is required) for payment had
occurred within 30 days after the date such payment was due and
payable or was duly provided for, whichever is later; provided,
however, that the Issuer or the Surviving Entity has delivered to each
Holder a notice to present Notes for payment within such 30-day
period;
(4) a withholding or deduction imposed on a payment to an individual that
is required to be made pursuant to any European Union Directive on the
taxation of savings implementing the proposal for such a directive
presented by the European Commission on July 18, 2001, or any law
implementing or complying with, or introduced in order to conform to,
such directive;
(5) any Tax presented for payment by or on behalf of a Holder 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;
(6) any estate, inheritance, gift, sale transfer, personal property or
similar tax, assessment or governmental charge; or
(7) any combination of items (1) through (6) (each, and "EXCLUDED TAX").
If the Issuer or any Surviving Entity shall be obligated to pay Additional
Amounts with respect to any payment under or with respect to the Notes, the
Issuer or the Surviving Entity shall deliver to the Trustee as 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 Surviving Entity shall notify the Trustee promptly thereafter) an
Officers' Certificate stating the fact that Additional Amounts shall be payable
and the amount so payable. The Officers' Certificate must also set forth any
other information necessary to enable the Paying Agent to pay Additional Amounts
to Holders on the relevant payment date. Upon request, the Issuer or the
Surviving Entity shall provide the Trustee with documentation reasonably
satisfactory to the Trustee evidencing the payment of Additional Amounts.
The Issuer or any Surviving Entity shall make all required withholdings and
deductions and shall remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law. The Issuer or the Surviving Entity
shall use their reasonable efforts to obtain certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld from each Taxing
Authority. The Issuer or the Surviving Entity shall furnish to the Holders,
within 30 days after the date the payment of any Taxes so deducted or withheld
is due pursuant to applicable law, certified copies of tax receipts evidencing
payment by the Issuer or the Surviving Entity, or if, notwithstanding the
Issuer's or the Surviving Entity's efforts to obtain receipts, receipts are not
obtained, other evidence of payments by the Issuer or the Surviving Entity.
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The Issuer or any Surviving Entity shall pay any stamp, transfer, court or
documentary taxes, or any other excise or property taxes, charges or similar
levies or Taxes which arise from the initial execution, delivery or registration
of the Notes, the initial resale thereof by the initial purchasers on the Issue
Date and the enforcement of the Notes and the security therefor following the
occurrence of any Event of Default with respect to the Notes.
The Issuer or any Surviving Entity shall indemnify and hold harmless each
Holder of Notes and upon written request reimburse each such Holder for the
amount, other than any Excluded Tax and excluding any payment of Additional
Amounts by the Issuer or the Surviving Entity, of:
(1) any Taxes imposed by a Relevant Taxing Jurisdiction and paid by such
Holder as a result of payments made under or with respect to the
Notes;
(2) any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto; and
(3) any Taxes imposed by a Relevant Taxing Jurisdiction with respect to
any reimbursement under clause (1) and (2) of this paragraph, but
excluding any Taxes imposed by the Relevant Taxing Jurisdiction on
such Xxxxxx's net income.
SECTION 4.25 GENERAL ADDITIONAL COVENANTS
So long as any of the Notes remains outstanding (or, in the case of
paragraph (8), in relation to Paying Agents only, so long as any of the Notes
remains liable to prescription) the Issuer covenants with the Trustee that it
shall:
(1) give or procure to be given to the Trustee such opinions,
certificates, reports, information and evidence as it shall properly
require and in such form as it shall properly require (including
without limitation the procurement by the Issuer of all such Officers'
Certificates called for by the Trustee pursuant to Section 7.02) for
the purpose of the discharge or exercise of the duties, trusts,
powers, authorities and discretions vested in it under this Indenture
or by operation of law;
(2) at all times keep and procure its Subsidiaries to keep proper books of
account and, following the occurrence of a Default or an Event of
Default or if the Trustee has reasonable grounds to believe that a
Default or an Event of Default has occurred or is about to occur,
allow and procure its Subsidiaries to allow the Trustee and any person
appointed by the Trustee to whom the Issuer or the relevant Subsidiary
(as the case may be) shall have no reasonable objection free access to
such books of account at all reasonable times during normal business
hours upon reasonable notice being given;
(3) at all times execute and do all such further documents, acts and
things as may be necessary at any time or times in the opinion of the
Trustee to carry out the Trustee's obligations under this Indenture;
(4) use its reasonable endeavours to procure the Principal Paying Agent to
notify the Trustee forthwith in the event that it does not, on or
before the due date for any payment in respect of the Notes or any of
them, receive unconditionally pursuant to the Paying Agency Agreement
payment of the full amount in the requisite currency of the moneys
payable on such due date on all such Notes; PROVIDED, HOWEVER, if the
Principal Paying Agent and the Trustee are the same entity, then no
such notices shall be required;
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(5) in the event of the unconditional payment to the Principal Paying
Agent or the Trustee of any sum due in respect of the Notes or any of
them being made after the due date for payment thereof forthwith give
or cause the Principal Paying Agent to give notice (at the expense of
the Issuer) to the relevant Holders that such payment has been made;
(6) use all reasonable endeavours to maintain the listing of the Notes on
the Luxembourg Stock Exchange or, if it is unable to do so having used
all reasonable endeavours, use all reasonable endeavours to obtain and
maintain a quotation or listing of the Notes on such other stock
exchange or exchanges or securities market or markets as the Issuer
may (with the prior written approval of the Trustee (which approval
shall not be unreasonably withheld)) decide and shall also upon
obtaining a quotation or listing of the Notes on such other stock
exchange or exchanges or securities market or markets enter into a
supplemental indenture to effect such consequential amendments to this
Indenture as shall be requisite to comply with the requirements of any
such stock exchange or securities market;
(7) obtain the prior written approval of the Trustee to, and promptly give
to the Trustee two copies of, the form of every notice given to the
Holders (such approval, unless so expressed, not to constitute
approval for the purposes of Section 21 of the Financial Services and
Markets Act 2000 of the United Kingdom of a communication within the
meaning of Section 21 of such act; and
(8) comply with and perform all its obligations under the Paying Agency
Agreement and use its reasonable endeavours to procure that the Paying
Agents and the Registrar comply with and perform all their respective
obligations thereunder and not make any amendment or modification to
the Paying Agency Agreement without the prior written approval of the
Trustee (which approval shall not be unreasonably withheld).
ARTICLE V
SUCCESSORS
SECTION 5.01 MERGER, CONSOLIDATION, OR SALE OF ASSETS
The Issuer may not, directly or indirectly:
(a) consolidate or merge with or into another Person (whether or not the
Issuer is the surviving company); or
(b) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Issuer and its Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person; unless:
(i) either:
(A) the Issuer is the surviving company; or
(B) the Person formed by or surviving any such consolidation or
merger (if other than the Issuer) or to which such sale, assignment,
transfer, conveyance or other disposition has been made is a company
organized or existing under the laws of any
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member state of the European Union, the United States, any state of
the United States or the District of Columbia (the "SURVIVING
ENTITY");
(ii) immediately following such transaction, the Surviving Entity (if
other than the Issuer) assumes all the obligations of the Issuer under the
Notes, this Indenture, the Registration Rights Agreement and the Pledge
Agreements pursuant to agreements reasonably satisfactory to the Trustee;
(iii) if the Surviving Entity is the Issuer, the Issuer shall have
delivered a written instrument in form satisfactory to the Trustee
confirming its obligations under the Notes and this Indenture;
(iv) immediately following such transaction, the Issuer or the
Surviving Entity should have delivered to the Trustee:
(A) an opinion of United States counsel to the effect that the
Holders shall not recognize income, gain or loss for US federal income
tax purposes as a result of such transaction and shall be subject to
US federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such transaction had not
occurred; and
(B) an opinion of counsel admitted to practice in the
jurisdiction of organization of the Surviving Entity to the effect
that the Holders shall not recognize income, gain or loss for income
tax purposes in the jurisdiction of organization as a result of such
transaction and shall be subject to income tax in such jurisdiction on
the same amounts, in the same manner and at the same times as would
have been the case if such transaction had not occurred;
(v) immediately following such transaction, no Default or Event of
Default exists; and
(vi) immediately following such transaction, the Issuer or the
Surviving Entity, as the case may be, shall, on the date of such
transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least(euro)1.00 of additional
Indebtedness pursuant to the Consolidated Coverage Ratio test set forth in
the first paragraph of Section 4.10; PROVIDED, HOWEVER, that this clause
shall not be applicable to (A) the merger of a Restricted Subsidiary with
or into the Issuer, where the Issuer is the surviving company, or to the
transfer of all or substantially all of the assets of a Restricted
Subsidiary to the Issuer or (B) the merger of the Issuer with or into an
Affiliate of the Issuer for the sole purpose of reincorporating the Issuer
in another jurisdiction if, as a result of and giving effect to such
reincorporation merger, the consolidated net worth of the surviving company
is no less than the consolidated net worth of the Issuer immediately prior
to the merger.
In addition, the Issuer may not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
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SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of the assets of the
Issuer in accordance with Section 5.01 hereof, the successor company formed by
such consolidation or into or with which the Issuer 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, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Issuer" shall refer instead to
the successor company of such entity), and may exercise every right and power of
the Issuer under this Indenture with the same effect as if such successor Person
had been named as the Issuer herein; PROVIDED, HOWEVER, that the predecessor
shall not be relieved from the obligation to pay the principal of and interest
and Special Interest and Additional Amounts, if any, on the Notes except in the
case of a sale, assignment, transfer, conveyance or other disposition of all of
the Issuer's assets that meets the requirements of Section 5.01 hereof.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
An "EVENT OF DEFAULT" occurs if:
(a) the Issuer defaults for 30 days in the payment when due of interest on,
or Additional Amounts or Special Interest, if any, with respect to, the Notes;
(b) the Issuer defaults in the payment when due of principal of or premium,
if any, on the Notes when the same becomes due and payable at maturity, upon
redemption (including in connection with an offer to purchase) or otherwise;
(c) the Issuer or any of its Subsidiaries fails to comply with Sections
4.07, 4.08, 4.18, 4.19 or Article V;
(d) the Issuer or any of its Subsidiaries fail to observe or perform any
other covenant, representation, warranty or other agreement in this Indenture or
the Notes or the Notes Security Pledge Agreement for 30 days after notice to the
Issuer by the Trustee or the Holders of at least 25% in principal amount of the
Notes (including Additional Notes, if any) then outstanding voting as a single
class to comply with certain other agreements of this Indenture or the Notes or
the Notes Security Pledge Agreement;
(e) the Issuer or any of its Restricted Subsidiaries defaults 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 or any of its Restricted Subsidiaries (or the payment of which is
guaranteed by the Issuer or any of its Restricted Subsidiaries) whether such
Indebtedness or guarantee now exists, or is created after the Issue Date, if
that default: (i) 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 (ii) results in the acceleration of such Indebtedness prior to its
Stated 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 Default or the maturity of which has been
so accelerated, aggregates (euro)15,000,000 or more;
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(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Issuer or any
of its Restricted Subsidiaries and such judgment or judgments remain
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days, PROVIDED that the aggregate of all such undischarged
judgments exceeds (euro)15,000,000;
(g) the Issuer repudiates any of its obligations under any of the Pledge
Agreement or any court of competent jurisdiction determines that any provision
of any of the Pledge Agreements is unenforceable against the Issuer for any
reason; or
(h) (i) the Issuer or any Restricted Subsidiary that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
be a Significant Subsidiary, becomes insolvent or ceases or suspends generally
payment of its debts or announces an intention to do so or is (or is deemed for
the purposes of any law applicable to it to be) unable to pay its debts as they
fall due, (ii) an administrator or liquidator of the Issuer or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would be a Significant Subsidiary, or the
whole or any substantial part of the undertaking, assets and revenues of the
Issuer or any Restricted Subsidiary that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would be a Significant
Subsidiary, is appointed (or application for any such appointment is made),
(iii) the Issuer or any Restricted Subsidiary that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would be a
Significant Subsidiary, enters into negotiations with its creditors generally
with a view to a readjustment or rescheduling of its indebtedness or makes a
general assignment or an arrangement or composition with or for the benefit of
its creditors or declares a moratorium in respect of any of its indebtedness or
any guarantee of any indebtedness given by it, (iv) the Issuer or any Restricted
Subsidiary that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would be a Significant Subsidiary, ceases or
threatens to cease to carry on all or any substantial part of its business, (v)
an order is made or an effective resolution is passed for the winding up,
liquidation, dissolution or for the protection from creditors of the Issuer or
any Restricted Subsidiary that is a Significant Subsidiary or any group of
Restricted Subsidiaries that, taken together, would be a Significant Subsidiary
or (vi) any event occurs which under the laws of any relevant jurisdiction has
an analogous effect to any of the events referred to in (i) to (and including)
(vi) above, or (vii) any lender or creditor commences the enforcement under or
pursuant to any pledge, assignment or collateral agreement of, or other security
interest in, the Share Capital of Sanitec or of any Subsidiary of the Issuer,
given in respect of the Credit Agreement or any other Credit Facility.
SECTION 6.02 ACCELERATION
If any Event of Default (other than an Event of Default specified in clause
(h) of Section 6.01 hereof) with respect to the Issuer or any Restricted
Subsidiary occurs and is continuing, the Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes by notice in writing to the
Issuer may declare all the Notes to be due and payable immediately. Upon any
such declaration, the Notes shall become due and payable immediately.
Notwithstanding the foregoing, if an Event of Default specified in clause (h) of
Section 6.01 hereof occurs with respect to the Issuer or any Restricted
Subsidiary, all outstanding Notes shall be due and payable immediately without
further action or notice. 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.
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SECTION 6.03 OTHER REMEDIES
The Trustee may, at any time at its discretion and without further notice,
take such proceedings against the Issuer as it may think fit to enforce the
payment of principal of, or premium, if any, or accrued interest, Special
Interest and Additional Amounts, if any, on, the Notes, but it shall not be
bound to take any such proceedings or other action under or pursuant to this
Indenture (including declaring the notes to be immediately due and payable
following an Event of Default or exercising any remedy under the Pledge
Agreements with respect to the collateral securing the Notes), unless (i) it
shall have been so directed by the Holders of at least a majority of the
principal amount of the Notes then outstanding and (ii) it shall have been
indemnified and/or secured to its satisfaction.
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
The Holders of a majority in aggregate principal amount of the Notes for
the time being outstanding by written notice to the Trustee may waive an
existing Default or Event of Default under this Indenture and its consequences.
The Issuer shall deliver to the Trustee an Officers' Certificate stating that
the requisite percentage of Holders have consented to such waiver and attaching
copies of such consents.
Notwithstanding the above, no such waiver by the Holders shall be effective
in relation to a Default in the payment of principal of or interest on any Note
as specified in clauses (a) and (b) of Section 6.01 or a Default in respect of
any term or provision of this Indenture that may not be amended or modified
without the consent of each Holder affected as provided in Section 9.02.
The above paragraphs of this Section 6.04 shall be in lieu of
ss.316(a)(1)(B) of the TIA and such ss.316(a)(1)(B) of the TIA is hereby
expressly excluded from this Indenture and the Notes, as permitted by the TIA.
Upon any such waiver by the Holders, such Default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred
for every purpose of this Indenture and the Notes, but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereon.
SECTION 6.05 CONTROL BY MAJORITY
Holders of a majority in 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, subject always to the provisions of Section 6.03 above. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture or the Pledge Agreements that the Trustee reasonably determines may be
materially prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal Liability.
SECTION 6.06 LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this Indenture or
the Notes only if:
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(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then outstanding
Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity and/or security satisfactory to the Trustee
against any Liability;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity and/or security; and
(e) during such 60-day period the Holders of a majority in principal amount
of the then outstanding Notes do not give the Trustee a direction inconsistent
with the request.
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, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
and Special Interest and Additional Amounts, if any, on the Note, on or after
the respective due dates expressed in the Note (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.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(a) or (b) 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 for the whole amount of principal
of, premium, if any, and interest and Special Interest and Additional Amounts,
if any, remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such other amounts as shall be sufficient to
cover the costs and expenses of collection, including the 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 as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the 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 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 or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to
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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
All moneys received by the Trustee under this Indenture and the Pledge
Agreements (including any moneys which represent principal, premium or interest
in respect of Notes which have become void and including as a result of
enforcement of any of the Pledge Agreements) shall be held by the Trustee upon
trust to apply them (subject to Section 6.13 hereof):
FIRST: in payment or satisfaction of all amounts then due and unpaid
under Section 7.05 hereof to the Trustee (including remunerations, expenses
and disbursements of, and all other liabilities incurred by, the Trustee,
its counsel and any Appointee in connection with this Indenture or any
Pledge Agreement;
SECOND: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium, if any, and interest and Special Interest and
Additional Amounts, if any, PARI PASSU and rateably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest and Special Interest and
Additional Amounts, if any, 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.
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 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 principal amount
of the then outstanding Notes.
SECTION 6.12 PRESCRIPTION
Claims against the Issuer for the payment of principal of, or premium,
interest, Special Interest or Additional Amounts, if any, on, the Notes will
become void unless presentation for payment is made (where required by the
provisions of this Indenture) within a period of ten years, in the case of
principal, premium or Additional Amounts, if any, or five years, in the case of
interest or Special Interest, from the applicable original payment date
therefor.
SECTION 6.13 INVESTMENT BY TRUSTEE
(a) If the amount of the moneys at any time available for the payment of
principal, premium, if any, interest, Special Interest and Additional Amounts,
if any, in respect of the Notes under Section 6.10 shall be less than 10% of the
principal amount of the Notes then outstanding, the Trustee may at its
discretion invest such moneys in Cash Equivalents. The Trustee at its discretion
may vary such
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investments and may accumulate such investments and the resulting income until
the accumulations, together with any other funds for the time being under the
control of the Trustee and available for such purpose, amount to at least 10% of
the principal amount of the Notes then outstanding and then such accumulations
and funds shall be applied under Section 6.10.
(b) Any moneys which under the trusts of this Indenture ought to or may be
invested in Cash Equivalents. If that bank or institution is the Trustee or a
subsidiary, holding or associated company of the Trustee, it need only account
for an amount of interest equal to the amount of interest which would, at then
current rates, be payable by it on such a deposit to an independent customer.
The Trustee may at any time vary any such investments for or into other
investments or convert any moneys so deposited into any other currency and shall
not be responsible for any loss resulting from any such investments or deposits,
whether due to depreciation in value, fluctuations in exchange rates or
otherwise.
(c) The Issuer shall not be liable for any investments made by the Trustee
pursuant to this Section 6.13.
ARTICLE VII
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs (subject always to overriding provisions of English law requiring
the Trustee to use a higher degree of care and skill at all times).
(b) Nothing in this Indenture shall in any case in which the Trustee has
failed to show the degree of care and diligence required of it as trustee having
regard to the provisions of this Indenture conferring on it any trusts, powers,
authorities or discretions exempt the Trustee from or indemnify it against any
Liability for breach of trust, its own negligent action, its own negligent
failure to act or its own willful misconduct.
(c) Every provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of this Section 7.01 and to the provisions
of the TIA.
(d) The Trustee shall be under no obligation to exercise any of the
discretions, authorities, rights or powers vested in it by this Indenture or the
Pledge Agreements at the request or direction of any of the Holders pursuant to
this Indenture unless such Holders shall have offered to the Trustee an
indemnity and/or security satisfactory to it against the losses, costs, charges,
expenses and other liabilities which might be incurred by it in compliance with
such request or direction.
SECTION 7.02 RIGHTS OF TRUSTEE
Where there are any inconsistencies between the Trustee Acts and the
provisions of this Indenture the provisions of this Indenture shall, to the
extent allowed by law, prevail and, in the case of any such inconsistency with
the Trustee Act 2000, the provisions of this Indenture shall constitute a
restriction or exclusion for the purposes of that Act. The duty of care
contained in Section 1 of the Trustee Act 2000 shall not apply to this
Indenture. The Trustee shall have all the powers conferred upon trustees by the
Trustee Acts and by way of supplement thereto it is expressly declared as
follows:
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(a) The Trustee may rely on 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 or if the Trustee
wishes to be satisfied as to any fact or matter, it may require an Officers'
Certificate and/or an Opinion of Counsel. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on any such
Officers' Certificate or Opinion of Counsel or any Board Resolution or fairness
opinion provided pursuant to this Indenture and shall not be bound to call for
any further evidence.
(c) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorised or within its rights or
powers provided that the Trustee's conduct does not constitute bad faith, wilful
misconduct or negligence.
(d) The Trustee shall not be charged with knowledge of any Default or Event
of Default under any of Sections 6.01(c) to 6.01(h) (both inclusive) hereof, of
the identity of any Subsidiary or Restricted Subsidiary or Significant
Subsidiary or of the existence of any Change of Control or Asset Sale unless
either (i) an officer of the Trustee assigned to its Corporate Trustee
Administration Department shall have actual knowledge thereof, or (ii) the
Trustee shall have received notice thereof in accordance with Section 12.02
hereof from the Issuer or any Holder.
(e) 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
therein, upon certificates or opinions conforming to the requirements of this
Indenture but the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture.
(f) The Trustee shall not be liable for any error of judgment made in good
faith.
(g) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any Liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers, if it
believes that repayment of such funds or adequate indemnity against such risk or
Liability is not reasonably assured to it.
(h) The Trustee shall not be liable for interest on any money received by
it.
(i) The Trustee may in relation to this Indenture act on the advice or
opinion of or any information obtained from (whether or not addressed to the
Trustee) any lawyer, valuer, accountant, surveyor, banker, broker, auctioneer or
other expert whether obtained by the Issuer, the Trustee or otherwise and shall
not be responsible for any Liability occasioned by so acting.
(j) Any such advice, opinion or information may be sent or obtained by
letter, telex, telegram, facsimile transmission or cable and the Trustee shall
not be liable for acting in good faith on any advice, opinion or information
purporting to be conveyed by any such letter, telex, telegram, facsimile
transmission or cable although the same shall contain some error or shall not be
authentic.
(k) The Trustee may call for and shall be at liberty to accept as
sufficient evidence of any fact or matter or the expediency of any transaction
or thing an Officers' Certificate and the Trustee shall not be bound in any such
case to call for further evidence or be responsible for any Liability that may
be occasioned by it or any other person acting on such certificate.
(l) The Trustee shall be at liberty to hold this Indenture or the Pledge
Agreements and any other documents relating thereto or to the Pledge Agreements
or to deposit them in any part of the world
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with any banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of lawyers
considered by the Trustee to be of good repute and the Trustee shall not be
responsible for or required to insure against any Liability incurred in
connection with any such holding or deposit and may pay all sums required to be
paid on account of or in respect of any such deposit.
(m) The Trustee shall not be responsible for the receipt or application of
the proceeds of the issue of any of the Notes by the Issuer, the exchange of any
Global Note for another Global Note or Definitive Registered Notes or the
delivery of any Global Note or Definitive Registered Note to the person(s)
entitled to it or them.
(n) The Trustee shall not be bound to give notice to any person of the
execution of any documents comprised or referred to in this Indenture or to take
any steps to ascertain whether any Default or any Event of Default has happened
and, until it shall have actual knowledge or express notice pursuant to this
Indenture to the contrary, the Trustee shall be entitled to assume that no
Default or Event of Default has happened and that the Issuer is observing and
performing all its obligations under this Indenture.
(o) Save as expressly otherwise provided in this Indenture, the Trustee
shall have absolute and uncontrolled discretion as to the exercise or
non-exercise of its trusts, powers, authorities and discretions under this
Indenture (the exercise or non-exercise of which as between the Trustee and the
Holders shall be conclusive and binding on the Holders) and shall not be
responsible for any Liability which may result from their exercise or
non-exercise.
(p) The Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any Note purporting to be such and
subsequently found to be forged or not authentic.
(q) Any consent or approval given by the Trustee for the purposes of this
Indenture may be given on such terms and subject to such conditions (if any) as
the Trustee thinks fit and notwithstanding anything to the contrary in this
Indenture may be given retrospectively.
(r) The Trustee shall not (unless and to the extent ordered so to do by a
court of competent jurisdiction) be required to disclose to any Holder any
information (including, without limitation, information of a confidential,
financial or price sensitive nature) made available to the Trustee by the Issuer
or any other person in connection with this Indenture and no Holder shall be
entitled to take any action to obtain from the Trustee any such information.
(s) Where it is necessary or desirable for any purpose in connection with
this Indenture to convert any sum from one currency to another it shall (unless
otherwise provided by these presents or required by law) be converted at such
rate or rates, in accordance with such method and as at such date for the
determination of such rate of exchange, as may be agreed by the Trustee in
consultation with the Issuer as relevant and any rate, method and date so agreed
shall be binding on the Issuer and the Holders.
(t) The Trustee as between itself and the Holders may determine all
questions and doubts arising in relation to any of the provisions of this
Indenture. Every such determination, whether or not relating in whole or in part
to the acts or proceedings of the Trustee, shall be conclusive and shall bind
the Trustee and the Holders.
(u) In connection with the exercise by it of any of its trusts, powers,
authorities and discretions under this Indenture (including, without limitation,
any modification, waiver, authorisation, determination or substitution), the
Trustee shall have regard to the general interests of the Holders as a class but
shall not have regard to any interests arising from circumstances particular to
individual Holders
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(whatever their number) and, in particular but without limitation, shall not
have regard to the consequences of the exercise of its trusts, powers,
authorities and discretions for individual Holders (whatever their number)
resulting from their being for any purpose domiciled or resident in, or
otherwise connected with, or subject to the jurisdiction of, any particular
territory or any political sub-division thereof and the Trustee shall not be
entitled to require, nor shall any Holder be entitled to claim, from the Issuer,
the Trustee or any other person any indemnification or payment in respect of any
tax consequence of any such exercise upon individual Holders.
(v) Any trustee of this Indenture being a lawyer, accountant, broker or
other person engaged in any profession or business shall be entitled to charge
and be paid all usual professional and other charges for business transacted and
acts done by him or his firm in connection with the trusts of this Indenture and
also his reasonable charges in addition to disbursements for all other work and
business done and all time spent by him or his firm in connection with matters
arising in connection with these presents.
(w) The Trustee may whenever it thinks fit (after consultation with the
Issuer) delegate by power of attorney or otherwise to any person or persons or
fluctuating body of persons (whether being a joint trustee of these presents or
not) all or any of its trusts, powers, authorities and discretions under this
Indenture. Such delegation may be made upon such terms (including power to
sub-delegate) and subject to such conditions and regulations as the Trustee may
in the interests of the Holders think fit. Provided that the Trustee has
exercised reasonable care in the selection of such delegate the Trustee shall
not be under any obligation to supervise the proceedings or acts of any such
delegate or sub-delegate or be in any way responsible for any Liability incurred
by reason of any misconduct or default on the part of any such delegate or
sub-delegate. The Trustee shall within a reasonable time after any such
delegation or any renewal, extension or termination thereof give notice thereof
to the Issuer.
(x) The Trustee may in the conduct of the trusts of this Indenture and/or
in relation to any action to be taken under the Pledge Agreements instead of
acting personally employ and pay an agent (whether being a lawyer or other
professional person) to transact or conduct, or concur in transacting or
conducting, any business and to do, or concur in doing, all acts required to be
done in connection with this Indenture (including the receipt and payment of
money). Provided that the Trustee has exercised reasonable care in the selection
of such agent the Trustee shall not be in any way responsible for any Liability
incurred by reason of any misconduct or default on the part of any such agent or
be bound to supervise the proceedings or acts of any such agent.
(y) The Trustee shall not be responsible for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity, performance,
enforceability or admissibility in evidence of this Indenture or any Pledge
Agreement or any security constituted thereby or any other document relating or
expressed to be supplemental hereto and shall not be liable for any failure to
obtain any licence, consent or other authority for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity, performance,
enforceability or admissibility in evidence of this Indenture or any Pledge
Agreement or any security constituted thereby or any other document relating or
expressed to be supplemental hereto.
(z) The Trustee may rely upon a report by the auditors of the Issuer
whether or not such report is addressed to the Trustee as to the amount of any
element or thing or defined term required to be calculated in connection with
any of the covenants contained in Article IV or Article V, as at any given time
or for any specified period, as applicable, or as to compliance by the Issuer
with any of such covenants, in which events such report shall, in the absence of
manifest error, be conclusive and binding on all parties.
(aa) The Trustee shall be at liberty to accept any certificate, report or
confirmation by such auditors or any other expert notwithstanding that it, or
the terms on which it was provided may contain a
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limitation on the liability of the auditors or such other expert (whether in
time, quantum or otherwise) and the Trustee shall not incur any liability to any
Holders or any other person in connection with the acceptance by it of any such
certificate, report or confirmation.
(bb) No purchaser, mortgagor, mortgagee, lender, debtor or other Person
dealing with the Trustee or with its or his attorney or agent shall be concerned
to enquire whether the security constituted by any of the Pledge Agreements has
become enforceable or whether any power exercised or purported to be exercised
thereunder has become exercisable or as to the propriety regularity or purpose
of the exercise of any power thereunder or whether any money remains due on such
security or as to the necessity or expediency of the stipulations and conditions
subject to which any sale shall be made or to see to the application of any
money paid to the Trustee or to any attorney or agent and in the absence of bad
faith on the part of such purchaser, mortgagor, lender, debtor or other Person
such dealing shall be deemed so far as regards his safety and protection to be
within the powers hereby conferred and to be valid and effectual accordingly and
the remedy of the Issuer and its assigns in respect of any impropriety or
irregularity whatsoever in the exercise of such powers shall be in damages only.
(cc) The Trustee shall accept without investigation requisition or
objection such title as the Issuer may have to the Pledged Collateral and may
accept such title as the Issuer may have to any of the Pledged Collateral
hereafter charged and shall not be bound or concerned to examine or enquire into
nor be liable for any defect or failure in the title of the Issuer to any of the
Pledged Collateral owned by it or any part thereof whether such defect or
failure was known to the Trustee or might have been discovered upon examination
or enquiry and whether capable of remedy or not, but the Issuer shall
nevertheless observe any undertaking given with regard to any such titles.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE
Neither the Trustee nor any director or officer or holding company,
Subsidiary or associated company of a company acting as a trustee under this
Indenture shall by reason of its or his fiduciary position be in any way
precluded from:
(a) entering into or being interested in any contract or financial or other
transaction or arrangement with the Issuer or any person or body corporate
associated with the Issuer (including without limitation any contract,
transaction or arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the provision
of financial facilities or financial advice to, or the purchase, placing or
underwriting of or the subscribing or procuring subscriptions for or otherwise
acquiring, holding or dealing with, or acting as paying agent in respect of, the
Notes or any other notes, bonds, stocks, shares, debenture stock, debentures or
other securities of, the Issuer or any person or body corporate associated as
aforesaid); or
(b) accepting or holding the trusteeship of any other trust deed
constituting or securing any other securities issued by or relating to the
Issuer or any such person or body corporate so associated or any other office of
profit under the Issuer or any such person or body corporate so associated;
and shall be entitled to exercise and enforce its rights, comply with its
obligations and perform its duties under or in relation to any such contract,
transaction or arrangement as is referred to in (a) above or, as the case may
be, any such trusteeship or office of profit as is referred to in (b) above
without regard to the interests of the Holders and notwithstanding that the same
may be contrary or prejudicial to the interests of the Holders and shall not be
responsible for any Liability occasioned to the Holders thereby and shall be
entitled to retain and shall not be in any way liable to account for any profit
made or share of brokerage or commission or remuneration or other amount or
benefit received thereby or in connection therewith.
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Where any holding company, Subsidiary or associated company of the Trustee
or any director or officer of the Trustee acting other than in his capacity as
such a director or officer has any information, the Trustee shall not thereby be
deemed also to have knowledge of such information and, unless it shall have
actual knowledge of such information, shall not be responsible for any loss
suffered by Holders resulting from the Trustee's failing to take such
information into account in acting or refraining from acting under or in
relation to these presents.
SECTION 7.04 REPORTS BY TRUSTEE TO HOLDERS
If required by TIA ss.313(a), within 60 days after each May 15 beginning
with May 15, 2003, the Trustee shall mail to each Holder a report dated as of
such May 15 that complies with TIA ss.313(a). The Trustee also shall comply with
TIA ss.313(b), (c) and (d).
A copy of each such report at the time of its mailing to the Holders shall
be filed with the SEC and each stock exchange, if any, on which the Notes are
listed.
SECTION 7.05 REMUNERATION AND INDEMNITY
(a) The Issuer shall pay to the Trustee remuneration for its services as
trustee as from the Issue Date, such remuneration to be at such rate and at such
time as may from time to time be agreed between the Issuer and the Trustee, the
first such payment to be made on the date hereof. Such remuneration shall accrue
from day to day and be payable (in priority to payments to the Holders) up to
and including the date when, all the Notes having become due for redemption, the
redemption moneys and interest thereon to the Redemption Date have been paid to
the Principal Paying Agent or the Trustee; PROVIDED THAT if upon due
presentation of any Note or any cheque payment of the moneys due in respect
thereof is improperly withheld or refused, remuneration shall commence again to
accrue at the rate which prevailed when the remuneration was last accruing.
(b) In the event of the occurrence of a Default or an Event of Default or
the Trustee considering it expedient or necessary or being requested by the
Issuer to undertake duties which the Trustee and the Issuer agree to be of an
exceptional nature or otherwise outside the scope of the normal duties of the
Trustee under this Indenture the Issuer shall pay to the Trustee such additional
remuneration as shall be agreed between them.
(c) The Issuer shall in addition pay to the Trustee an amount equal to the
amount of any value added tax or similar tax chargeable in respect of its
remuneration under this Indenture.
(d) In the event of the Trustee and the Issuer failing to agree:
(i) (in a case to which sub-clause (a) above applies) upon the amount
of the remuneration; or
(ii) (in a case to which sub-clause (b) above applies) upon whether
such duties shall be of an exceptional nature or otherwise outside the
scope of the normal duties of the Trustee under this Indenture, or upon
such additional remuneration,
such matters shall be determined by a merchant or investment bank (acting as an
expert and not as an arbitrator) selected by the Trustee and approved by the
Issuer or, failing such approval, nominated (on the application of the Trustee)
by the President for the time being of The Law Society of England and Wales (the
expenses involved in such nomination and the fees of such merchant or investment
bank being equally payable by the Issuer and Trustee) and the determination of
any such merchant or investment bank shall be final and binding upon the Trustee
and the Issuer.
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(e) Without prejudice to the right of indemnity by law given to trustees,
the Issuer shall indemnify the Trustee and every Appointee and keep it or him
indemnified against all Liabilities to which it or he may be or become subject
or which may be properly incurred by it or him in the execution or purported
execution of any of its or his trusts, powers, authorities and discretions under
this Indenture or its or his functions under any such appointment or in respect
of any other matter or thing properly done or omitted in any way relating to
this Indenture or any Pledge Agreements any such appointment; provided, however,
the Issuer shall not indemnify the Trustee or any Appointee for any Liabilities
resulting from the Trustee's or such Appointee's willful misconduct, willful
default, negligence or bad faith.
(f) All amounts payable pursuant to sub-clause (5) above shall be payable
by the Issuer on the date specified in a demand by the Trustee and in the case
of payments actually made by the Trustee prior to such demand shall (if not paid
within seven days after such demand and the Trustee so requires) carry interest
at the rate of 2% per annum above the base rate from time to time of National
Westminster Bank Plc from the date specified in such demand, and in all other
cases shall (if not paid on the date specified in such demand or, if later,
within seven days after such demand and, in either case, the Trustee so
requires) carry interest at such rate from the date specified in such demand.
All remuneration payable to the Trustee shall carry interest at such rate from
the due date therefor.
(g) The indemnities in this Indenture constitute separate and independent
obligations from the other obligations in this Indenture, will give rise to
separate and independent causes of action, will apply irrespective of any
indulgence granted by the Trustee and/or any Holder and will continue in full
force and effect despite any judgment, order, claim or proof for a liquidated
sum or sums in respect of any sum due under this Indenture or the Notes, or any
other judgment or order. Any such loss as referred to in Section 12.08 shall be
deemed to constitute a loss suffered by the Trustee and the Holders and no proof
or evidence of any actual loss shall be required by the Issuer or its liquidator
or liquidators
SECTION 7.06 REPLACEMENT OF TRUSTEE
The Trustee may resign at any time by so notifying the Issuer in writing
without being responsible for any Liabilities incurred by reason of such
retirement but without prejudice to any Liability of the Trustee accrued prior
to such time. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.08;
(b) the Trustee is adjudged a bankrupt or an insolvent under any Bankruptcy
Law;
(c) a custodian or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Issuer shall promptly appoint a successor
Trustee. If no replacement Trustee has been appointed within 30 days of the
Trustee having resigned or the Trustee having received notification of its
removal, the Trustee may appoint a successor. The retirement or removal of any
Trustee shall not become effective until a successor Trustee is appointed.
Notwithstanding replacement of the Trustee pursuant to this Section 7.06,
the Issuer's obligations under Section 7.05 shall continue for the benefit of
the retiring Trustee.
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SECTION 7.07 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another company or
banking association, the resulting, surviving or transferee company or banking
association without any further act shall be the successor Trustee.
SECTION 7.08 ELIGIBILITY; DISQUALIFICATION
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA Sections 310 (a) (2)(1), 310 (a) and 310 (a) (5). The
Trustee shall have a combined capital and surplus of at least U.S. $50,000,000
as set forth in its most recent published annual report of condition. If the
Trustee has or shall acquire any "conflicting interest" within the meaning of
TIA Section 310 (b), the Trustee and the Issuer shall comply with the provisions
of TIA Section 310 (b) (subject to the penultimate paragraph thereof). If at any
time the Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and with the
effect hereinbefore specified in this Article VII.
SECTION 7.09 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER
The Trustee shall comply with TIA Section 311 (a), excluding any creditor
relationship listed in TIA Section 311 (b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311 (a) to the extent indicated therein.
SECTION 7.10 SEPARATE AND CO-TRUSTEES
Subject to the provisions of TIA Section 310(a)(3), the Trustee may, upon
giving prior notice to, and after consultation with, the Issuer (but without the
consent of the Issuer or the Holders), appoint any person established or
resident in any jurisdiction (whether a trust company or not) to act either as a
separate trustee or as a co-trustee jointly with the Trustee:
(i) if the Trustee reasonably considers such appointment to be in the
interests of the Holders;
(ii) for the purposes of conforming to any legal requirements,
restrictions or conditions in any jurisdiction in which any particular act
or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any jurisdiction or
the enforcement in any jurisdiction of either a judgment already obtained
or any of the provisions of this Indenture or any of the Pledge Agreements
against the Issuer.
The Issuer irrevocably appoints the Trustee to be its attorney in its name
and on its behalf to execute any such instrument of appointment. Such a person
shall (subject always to the provisions of this Indenture) have such trusts,
powers, authorities and discretions (not exceeding those conferred on the
Trustee by this Indenture) and such duties and obligations as shall be conferred
or imposed by the instrument of appointment. The Trustee shall have power in
like manner to remove any such person. Such reasonable remuneration as the
Trustee may pay to any such person, together with any attributable Liabilities
incurred by it in performing its function as such separate trustee or
co-trustee, shall for the purposes of this Indenture be treated as Liabilities
incurred by the Trustee.
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SECTION 7.11 TRUSTEE'S POWERS TO BE ADDITIONAL
The powers conferred upon the Trustee by this Indenture shall be in
addition to any powers which may from time to time be vested in the Trustee by
the general law or as a Holder of any of the Notes.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Issuer may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article VIII.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE
Upon the exercise by Issuer under Section 8.01 hereof of the option
applicable to this Section 8.02, the Issuer shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have discharged
the obligations of the Issuer with respect to all outstanding Notes on the date
the conditions set forth below are satisfied (hereinafter, "LEGAL DEFEASANCE").
For this purpose, Legal Defeasance means that the Issuer shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Issuer, shall execute proper instruments acknowledging
the same), except for the following provisions which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, or premium, if any, interest and Special Interest and
Additional Amounts, if any, on such Notes when such payments are due; (ii) the
Issuer's obligations with respect to such Notes under Article II and Section
4.02 hereof; (iii) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuer's obligations in connection therewith; and (iv)
this Article VIII. Subject to compliance with this Article VIII, 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 Issuer's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Issuer shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, 4.23, 4.24 and
4.25 and Section 5.01 hereof with respect to the outstanding Notes on and after
the date the conditions set forth in Section 8.04 are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Notes shall 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 shall continue to be deemed "outstanding" for all other purposes
hereunder (it being understood that such Notes shall not be deemed outstanding
for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Issuer may omit to comply with and shall
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
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in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby. In addition, upon the Issuer's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(c) through
6.01(e) hereof shall not constitute Events of Default.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either Section
8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuer must irrevocably deposit with the Trustee, in trust, for the
benefit of the Holders, cash denominated in Euros, non-callable Government
Securities or a combination thereof, in such amounts as shall be sufficient, in
the opinion of an internationally recognized firm of independent public
accountants, to pay the principal of, or premium, if any, and interest and
Special Interest and Additional Amounts, if any, on the outstanding Notes on the
stated date for payment thereof or on the applicable Redemption Date, as the
case may be;
(b) in the case of an election under Section 8.02 hereof, the Issuer shall
have delivered to the Trustee (i) an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Issuer has received
from, or there has been published by, the United States Internal Revenue Service
a ruling, or (B) since the Issue Date, there has been a change in the applicable
federal income tax law of the United States, in either case to the effect that,
and based thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes shall not recognize income, gain or loss for United States
federal income tax purposes as a result of such Legal Defeasance and shall be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred; and (ii) an opinion of counsel in Luxembourg
reasonably acceptable to the Trustee to the effect that (A) Holders of the
outstanding Notes will not recognize income, gain or loss for income tax
purposes in Luxembourg as a result of the Legal Defeasance and will be subject
to income tax in Luxembourg on the same amounts, in the same manner and at the
same time as would have been the case if such Legal Defeasance had not occurred,
and (B) payments from the defeasance trust can be made free and exempt from any
and all withholding and other Taxes of whatever nature imposed or levied by or
on behalf of Luxembourg or any Taxing Authority thereof;
(c) in the case of an election under Section 8.03 hereof, the Issuer shall
have delivered to the Trustee (i) an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes shall not recognize income, gain or loss for United States
federal income tax purposes as a result of such Covenant Defeasance and shall be
subject to United States federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred; (ii) an opinion of counsel in Luxembourg reasonably
acceptable to the Trustee to the effect that (A) Holders of the outstanding
Notes will not recognize income, gain or loss for income tax purposes in
Luxembourg as a result of such Covenant Defeasance and will be subject to income
tax in Luxembourg on the same amounts, in the same manner and at the same times
as would have been the case if such Covenant Defeasance had not occurred, and
(B) payments from the defeasance trust can be made free and exempt from any and
all withholding and other income taxes of whatever nature imposed or levied by
or on behalf of Luxembourg or any Taxing Authority thereof;
(d) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit (other than a Default or Event of Default resulting
from the incurrence of Indebtedness all or a portion of the proceeds of which
shall be used to defease the Notes pursuant to this Article VIII
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concurrently with such incurrence) or insofar as Sections 6.01(g) or 6.01(h)
hereof is concerned, at any time in the period ending on the 181st day after the
date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall 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 or any of its
Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is
bound;
(f) the Issuer shall have delivered to the Trustee an Officers' Certificate
stating that the deposit was not made by the Issuer with the intent of
preferring the Holders over any other creditors of the Issuer or with the intent
of defeating, hindering, delaying or defrauding any other creditors of the
Issuer; and
(g) the Issuer shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent provided
for or relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST
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
shall 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 Issuer 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 and
Special Interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the 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.
Anything in this Article VIII to the contrary notwithstanding, the Trustee
shall 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(a) 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 and Additional
Amounts, if any, or interest on any Note and remaining unclaimed for two years
after such principal, and premium and Additional Amounts, if any, or interest
has become due and payable shall be paid to the Issuer on its request or (if
then held by the Issuer) shall be discharged from such trust; and the Holder of
such Note shall thereafter look only to the Issuer for payment thereof, and all
Liability of the Trustee or such Paying Agent with respect to such trust money,
and all Liability of the Issuer as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Issuer cause to be
published once, in a leading newspaper of general circulation in Luxembourg
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(which is expected to be the LUXEMBURGER WORT) and in the The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining shall be repaid to the Issuer.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any 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 obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as 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 or Special Interest or Additional Amounts, if any,
on any Note following 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 held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 of this Indenture, the Issuer and the Trustee
may amend or supplement this Indenture or the Notes or any of the Pledge
Agreements without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to provide for the assumption of the Issuer's obligations to the
Holders of the Notes by a successor to the Issuer pursuant to Article V hereof;
(d) to provide for the guarantee of the Issuer's obligations to the Holders
of the Notes or to provide for, and enter into agreements and instruments with
respect to, the pledge of, or the granting of a security interest in, additional
collateral to secure the Obligations hereunder;
(e) 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
hereunder of any Holder of the Notes; or
(f) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in this Indenture as of the date hereof.
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 any documents described in Section
7.02 hereof which are requested by the Trustee, the Trustee shall join with the
Issuer 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
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therein contained, but the Trustee shall 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, the Issuer may amend or
supplement this Indenture (including Sections 4.07 and 4.08 hereof), the Notes
and any of the Pledge Agreements with the consent of the Holders of at least a
majority in principal amount of the Notes (including Additional Notes, if any)
then outstanding voting as a single class (including 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 or Special Interest or Additional
Amounts, if any, on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or past, present or future compliance with
any provision of this Indenture or the Notes or any of the Pledge Agreements may
be waived by the Holders of a majority in principal amount of the then
outstanding Notes (including Additional Notes, if any) voting as a single class
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes).
With the consent of the Holders of at least 75% in principal amount of the
Notes (including Additional Notes, if any) then outstanding voting as a single
class (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Notes), the Issuer may amend
the indenture to modify Section 4.18.
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 the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of, or waiver by, the Holders of Notes as aforesaid, and
upon receipt by the Trustee of any documents described in Section 7.02 hereof
which are requested by the Trustee, the Trustee shall join with the Issuer in
the execution of a supplemental Indenture to give effect to the relevant
amendment or waiver unless such amendment or waiver 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 shall not be obligated to,
enter into such supplemental Indenture.
It shall 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 or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Principal Paying Agent at the expense of the Issuer shall give to
the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Principal Paying Agent to give such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental Indenture or waiver. However, without the
consent of each Holder affected, an amendment or waiver under this Section 9.02
may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter or waive any of the provisions with respect to the redemption of the Notes
(other than the provisions under Sections 4.07 and 4.08);
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(c) reduce the rate of or change the time for payment of interest,
including default interest, or Special Interest or Additional Amounts, if any,
on any Note;
(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest or Special Interest of Additional Amounts, if any,
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
(including Additional Notes, if any) and a waiver of the payment default that
resulted from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) 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 of, premium, if any, or interest or Special Interest or Additional
Amounts, if any, on the Notes;
(g) waive a redemption payment with respect to any Note (other than a
payment required by either Section 4.07 or 4.08 hereof); or
(h) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes shall be set
forth in a amended or supplemental Indenture that would comply with the TIA as
then in effect as if this Indenture were required to be qualified under the TIA.
SECTION 9.04 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 Xxxxxx'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 waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05 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 Principal Paying Agent 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 shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
Subject to the provisions of this Article IX, the Trustee shall sign any
amended or supplemental Indenture authorized pursuant to this Article IX if the
amendment or supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Issuer may not sign an amendment
or supplemental Indenture until the Board of Directors approves it. In executing
any amended or
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supplemental indenture, the Trustee shall be entitled to receive and (subject to
Section 7.01 hereof) shall be fully protected in relying upon, in addition to
the other documents required by this Article IX and 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.
ARTICLE X
COLLATERAL AND SECURITY
SECTION 10.01 PLEDGE AGREEMENTS
The due and punctual payment of the principal of, premium, if any, and
interest and Special Interest and Additional Amounts, if any, on the Notes when
and as the same shall be due and payable, whether on an Interest Payment Date,
at maturity, by acceleration, repurchase, redemption or otherwise, and interest
on the overdue principal of and interest and Special Interest and Additional
Amounts, if any, on the Notes and performance of all other obligations of the
Issuer to the Holders of Notes or the Trustee under this Indenture and the
Notes, according to the terms hereunder or thereunder, are secured as provided
in the Pledge Agreements which the Issuer has entered into simultaneously with
the execution of this Indenture. Each Holder of Notes, by its acceptance
thereof, consents and agrees to the terms of the Pledge Agreements (including,
without limitation, the provisions providing for foreclosure and release of
Pledged Collateral) as the same may be in effect or may be amended from time to
time in accordance with its terms and authorizes and directs the Trustee to
enter into the Pledge Agreements and to perform its obligations and exercise its
rights thereunder in accordance therewith. The Issuer shall deliver to the
Trustee copies of all documents delivered pursuant to the Pledge Agreements, and
shall 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 Pledge Agreements, to
assure and confirm to the Trustee the security interest in the Pledged
Collateral contemplated hereby and by the Pledge Agreements. The Issuer shall
take, and shall cause its Restricted Subsidiaries to take, upon request of the
Trustee, any and all actions reasonably required to cause the Pledge Agreements
to create and maintain, as security for the Obligations of the Issuer hereunder,
a valid and enforceable perfected Lien in and on all the Pledged Collateral in
favor of the Trustee for its benefit and for the benefit of the Holders of
Notes.
SECTION 10.02 RECORDING AND OPINIONS
(a) The Issuer shall furnish to the Trustee on June 30 in each year
beginning with June 30, 2003, an Opinion of Counsel, dated as of such date,
either:
(i) (A) stating that, in the opinion of such counsel, action has been
taken with respect to the recording, registering, filing, re-recording,
re-registering and re-filing of all supplemental indentures, financing
statements, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the Pledge Agreements,
and (B) stating that, in the opinion of such counsel, based on relevant
laws as in effect on the date of such Opinion of Counsel, all filings have
been made and all action has been taken that are necessary as of such date
and during the succeeding 12 months fully to preserve and protect, to the
extent such protection and preservation are possible by filing, the rights
of the Holders of Notes and the Trustee hereunder and under the Pledge
Agreements with respect to the security interests in the Pledged
Collateral;
(ii) stating that, in the opinion of such counsel, no such action is
necessary to maintain such Lien and assignment.
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(b) The Issuer shall otherwise comply with the provisions of TIA Section
314(b).
SECTION 10.03 RELEASE OF COLLATERAL
(a) Pledged Collateral under the Pool Acquisition Pledge Agreement will be
released automatically upon the transfer of the Share Capital of Sanitec to the
Issuer and the pledge of such Share Capital under the Notes Security Pledge
Agreement and the perfection of such pledge.
(b) Subject to subsections (d) and (e) of this Section 10.03, the Share
Capital of Sanitec shall be released from the Lien and security interest created
by the Notes Security Pledge Agreement to permit perfection of a priority Lien
over such Share Capital to the extent necessary to secure Indebtedness under
either the Credit Agreement or Indebtedness under any Credit Facility incurred
pursuant to clause (1) or (2) of the second paragraph of Section 4.10 hereof;
PROVIDED, HOWEVER, the Issuer immediately thereafter shall have the ability to,
and shall undertake to, grant a pledge of such Share Capital to the Trustee for
the benefit of the Holders having the same priority as, and on terms no less
favorable to the Holders than, the Lien and security interest in effect under
the Notes Security Pledge Agreement immediately prior to such release.
(c) Subject to subsections (d) and (e) of this Section 10.03, Pledged
Collateral may be released from the Lien and security interest created by the
Pledge Agreements at any time or from time to time in accordance with the
provisions of the Pledge Agreements or as provided hereby. In addition, upon the
request of the Issuer pursuant to an Officers' Certificate certifying that all
conditions precedent hereunder have been met and stating whether or not such
release is in connection with an Asset Sale and (at the sole cost and expense of
the Issuer) the Trustee shall release Pledged Collateral that is sold, conveyed
or disposed of in compliance with the provisions of this Indenture; PROVIDED,
that if such sale, conveyance or disposition constitutes an Asset Sale, the
Issuer shall apply the Net Proceeds in accordance with Section 4.08 hereof.
(d) At any time when a Default or Event of Default has occurred and is
continuing and the maturity of the Notes has been accelerated (whether by
declaration or otherwise), no further release of Pledged Collateral pursuant to
the provisions of the Pledge Agreements shall be effective as against the
Holders of Notes.
(e) The release of any Pledged Collateral from the terms of this Indenture
and the Pledge Agreements shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Pledged Collateral is released pursuant to the terms of the Pledge Agreements.
To the extent applicable, the Issuer shall cause TIA Section 313(b), relating to
reports, and TIA Section 314(d), relating to the release of property or
securities from the Lien and security interest of the Pledge Agreements and
relating to the substitution therefor of any property or securities to be
subjected to the Lien and security interest of the Pledge Agreements, to be
complied with. Any certificate or opinion required by TIA Section 314(d) may be
made by an Officer of the Issuer except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the Trustee and the Trustee in the exercise of
reasonable care.
SECTION 10.04 CERTIFICATES OF THE ISSUER
The Issuer shall furnish to the Trustee and the Trustee, prior to each
proposed release of Pledged Collateral pursuant to the Pledge Agreements:
(i) all documents required by TIA Section 314(d) to the extent
applicable; and
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(ii) an Opinion of Counsel, which may be rendered by internal counsel
to the Issuer, to the effect that such accompanying documents constitute
all documents required by TIA ss.314(d) to the extent applicable.
The Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of Counsel.
SECTION 10.05 CERTIFICATES OF THE TRUSTEE
In the event that the Issuer wishes to release Pledged Collateral in
accordance with the Pledge Agreements and has delivered the certificates and
documents required by the Pledge Agreements and Sections 10.03 and 10.04 hereof,
the Trustee shall determine whether it has received all documentation required
by TIA Section 314(d) to the extent applicable in connection with such release
and, based on such determination and the Opinion of Counsel delivered pursuant
to Section 10.04(2), shall deliver a certificate to the Trustee setting forth
such determination.
SECTION 10.06 ACTIONS UNDER THE PLEDGE AGREEMENTS
Subject 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, direct,
on behalf of the Holders of Notes, all actions it deems necessary or appropriate
in order to enforce any of the terms of the Pledge Agreements and to collect and
receive any and all amounts payable in respect of the Obligations of the Issuer
hereunder.
The Trustee shall have power to institute and maintain such suits and
proceedings as it may deem expedient to prevent any impairment of the Pledged
Collateral by any acts that may be unlawful or in violation of the Pledge
Agreements 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 Collateral (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 10.07 RECEIPT OF FUNDS UNDER THE PLEDGE AGREEMENTS
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Pledge Agreements, and to make further
distributions of such funds to the Holders of Notes according to the provisions
of this Indenture.
SECTION 10.08 TERMINATION OF SECURITY INTEREST
Upon the payment in full of all Obligations of the Issuer under this
Indenture and the Notes, or upon Legal Defeasance, the Trustee shall, at the
request of the Issuer, deliver a certificate to the Trustee stating that such
Obligations have been paid in full, and release the Liens pursuant to this
Indenture and the Pledge Agreements.
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ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 SATISFACTION AND DISCHARGE
This Indenture shall be discharged and shall cease to be of further effect
as to all Notes issued hereunder, when:
(i) either:
(A) 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 theretofore been deposited in trust and thereafter
repaid to the Issuer) have been delivered to the Principal Paying
Agent for cancellation; or
(B) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a
notice of redemption or otherwise or shall become due and payable
within one year and the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Principal Paying Agent as trust
funds in trust solely for the benefit of the Holders, cash denominated
in Euros, non-callable Government Securities, or a combination
thereof, in such amounts as shall be sufficient without consideration
of any reinvestment of interest, to pay and discharge the entire
indebtedness on the Notes not delivered to the Principal Paying Agent
for cancellation for principal, premium and Additional Amounts, if
any, and accrued interest to the date of maturity or redemption;
(ii) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit shall not result in a breach or violation of, or
constitute a default under, any other instrument to which the Issuer or any
Subsidiary of the Issuer is a party or by which any Restricted Subsidiary
of the Issuer is bound;
(iii) the Issuer has paid or caused to be paid all sums payable by it
under this Indenture; and
(iv) 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 the Redemption Date, as the case may be.
In addition, the Issuer must deliver an Officers' Certificate of the Issuer
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
shall have been deposited with the Trustee pursuant to subclause (B) of clause
(i) of this Section, the provisions of Section 12.02 and Section 8.06 shall
survive.
SECTION 11.02 APPLICATION OF TRUST MONEY
Subject to the provisions of Section 8.06, all money deposited with the
Trustee pursuant to Section 11.01 shall be held in trust and applied by it, in
accordance with the provisions of Section 6.10.
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If the Trustee or any Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 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 obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01; 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 such
Paying Agent.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT DEEMED TO APPLY AND CONTROL
If any provision of this Indenture limits, qualifies or conflicts with the
duties that would be imposed by TIA Section 318(c) when this Indenture is
qualified under the TIA, the imposed duties shall be deemed to control as if the
TIA were then applicable hereto.
SECTION 12.02 NOTICES
Any notice or communication by the Issuer or the Trustee to the other is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Issuer: Sanitec International S.A.
00-00 xxxxxxxxx Xxxxxx Xxxxx
X-0000 Xxxxxxxxxx
RC Luxembourg B 82 055
Telecopier No.: x000-00 00 00-000
Attention: Xx. Xxxxxx Xxxxx
with a copy to:
Sanitec Oy
Xxxxxxxxx 00X
00000 Xxxxxxxx, Xxxxxxx
Telecopier No.: x000 0 0000 000
Attention: Xx Xxxxxx X. Xxxxx
If to the Trustee: The Bank of New York
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Telecopier No.: x00 (0) 000 000 0000
Attention: Corporate Trust Administration
The Issuer or the Trustee, by notice to the others may designate additional
or different addresses for subsequent notices or communications.
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All notices and communications (other than those sent to Holders of Global
Notes or Definitive Registered Notes) shall be deemed to have been duly given
(i) at the time delivered by hand, if personally delivered; (ii) five Business
Days after being deposited in the mail, postage prepaid, if mailed; (iii) when
answered back, if telexed; (iv) when receipt acknowledged, if telecopied; 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 of one or more Global Notes or
Definitive Registered Notes 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.
Any notice or communication shall also be so mailed to any Person described in
TIA Section 313(c) to the same extent that would be otherwise required by the
TIA if applicable. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
All notices to the Holders (whilst any Notes are represented by one or more
Global Notes) shall be delivered to the Depositaries for communication to
entitled Participants. Any notice will be deemed to have been given on the date
of delivery to the Depositary. Alternatively, any notice shall be valid if
published in a leading newspaper having a general circulation in New York City
(which is expected to be the WALL STREET JOURNAL), a leading newspaper having a
general circulation in London (which is expected to be the FINANCIAL TIMES) and,
so long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such exchange shall so require, a newspaper having a general circulation in
Luxembourg (which is expected to be the LUXEMBURGER WORT). If publication as
provided above is not practicable, notice will be given in such other manner,
and shall be deemed to have been given on such date, as the Trustee may approve.
With respect to notices of redemption under Section 3.03, the Principal
Paying Agent at the expense of the Issuer shall, at least 30 but not more than
60 days before the relevant Redemption Date, mail by first-class mail to the
Common Depositary, each Depositary and, if any Definitive Registered Notes are
outstanding, each Holder, in each case, with a copy to the Trustee, a notice of
each redemption. In addition, so long as the Notes are listed on the Luxembourg
Stock Exchange, the Issuer shall notify, or cause to be notified, such stock
exchange of each redemption of Notes made pursuant to this Indenture.
If a notice or communication is mailed or published in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Issuer mails a notice or communication to Holders or delivers a
notice or communication to Indirect Participants, it will mail a copy to the
Trustee and each Agent at the same time.
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA Section 312(b) as if this Indenture
were required to be qualified under the TIA, with other Holders with respect to
their rights under this Indenture or the Notes. The Issuer, the Trustee, the
Registrar and anyone else shall have the protections of TIA ss.312(c) that would
be in effect if this Indenture were required to be qualified under the TIA.
SECTION 12.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Issuer to the Trustee to take any
action under this Indenture or any of the Pledge Agreements, the Issuer shall
furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of the
92
signers, all conditions precedent and covenants, if any, provided for in this
Indenture or the Pledge Agreements relating to the proposed action have been
satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to
the Trustee (which shall include the statements set forth in Section 12.05
hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been satisfied.
SECTION 12.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture or any of the Pledge Agreements (other
than a certificate provided pursuant to TIA Section 314(a)(4)) or that would
comply with the provisions of TIA Section 314(e) when this Indenture is
qualified under the TIA and shall include:
(i) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(ii) 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;
(iii) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(iv) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 12.06 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 may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES
AND STOCKHOLDERS
No past, present or future director, officer, employee, promoter, advisor,
incorporator or stockholder of the Issuer shall have any liability for any
obligations of the Issuer under the Notes, this Indenture or any of the Pledge
Agreements or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
SECTION 12.08 JUDGMENT CURRENCY
The Issuer shall indemnify the Holders against any loss incurred, as a
result of any judgment or award in connection with the Notes, Indenture 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 shall
constitute a separate and independent obligation of the Issuer and shall
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.
93
SECTION 12.09 GOVERNING LAW
The rights and duties of the parties hereunder and thereunder, are governed
by, and will be construed in accordance with, English law (articles 86 to 94-8
of the Luxembourg law of 10th August 1915 on commercial companies, as amended,
having been expressly waived).
SECTION 12.10 SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE
OF PROCESS
To the fullest extent permitted by applicable law, the Issuer irrevocably
submits to the jurisdiction of the Courts of England in any suit or proceeding
based on or arising under this Indenture or any of the transactions contemplated
hereby, and irrevocably agrees that all claims in respect of such suit or
proceeding may be determined in any such court. The Issuer, to the fullest
extent permitted by applicable law, irrevocably and fully waives the defense of
an inconvenient forum or inappropriate forum to the maintenance of such suit or
proceeding and hereby irrevocably designates and appoints Twyford Bathrooms (the
"AUTHORIZED AGENT"), as its authorized agent upon whom process may be served in
any such suit or proceeding. The Issuer represents that it has notified the
Authorized Agent of such designation and appointment and that the Authorized
Agent has accepted the same in writing. The Issuer hereby irrevocably authorizes
and directs its Authorized Agent to accept such service. The Issuer further
agrees that service of process upon its Authorized Agent and written notice of
said service to the Issuer mailed by first class mail or delivered to its
Authorized Agent shall be deemed in every respect effective service of process
upon the Issuer in any such suit or proceeding. Nothing herein shall affect the
right of any person to serve process in any other manner permitted by law. The
Issuer agrees that a final action in any such suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other lawful manner. Notwithstanding the foregoing, any action against
the Issuer arising out of or based on this Indenture or the transactions
contemplated hereby may also be instituted in any competent court in the Grand
Duchy of Luxembourg and the Issuer expressly accepts the jurisdiction of any
such court in any such action. The Issuer hereby irrevocably waives, to the
extent permitted by law, any immunity to jurisdiction to which it may otherwise
be entitled (including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Indenture, the Notes or the
transactions contemplated hereby. The provisions of this Section 12.10 are
intended to be effective upon the execution of this Indenture and the Notes
without any further action by the Issuer or the Trustee and the introduction of
a true copy of this Indenture into evidence shall be conclusive and final
evidence as to such matters.
SECTION 12.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture, trust
deed, loan or debt agreement of the Issuer or its Subsidiaries or of any other
Person. Any such indenture, trust deed, loan or debt agreement may not be used
to interpret this Indenture.
SECTION 12.12 SUCCESSORS
All agreements of the Issuer in this Indenture and the Notes shall bind its
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.13 SEVERABILITY
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
94
SECTION 12.14 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement, binding on the parties hereto.
SECTION 12.15 TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table 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 shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.16 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Indenture has no rights under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Indenture but this does not affect any right or remedy of a third party which
exists or is available apart from that Act.
(Signature page follows.)
95
IN WITNESS whereof this Indenture has been executed as a deed by the Issuer
and the Trustee and delivered on the date first stated on page 1.
EXECUTED as a deed )
by SANITEC INTERNATIONAL S.A. )
acting by )
as )
AND )
by
being the )
of SANITEC INTERNATIONAL S.A. )
Witness' Signature:
Name:
Address:
Occupation:
EXECUTED as a deed )
by THE BANK OF NEW YORK )
acting by )
under the authority of that company )
in the presence of: )
Witness' Signature:
Name:
Address:
Occupation:
S-1
EXHIBIT A
[Face of Global Note]
--------------------------------------------------------------------------------
ISIN: ____________
9% SENIOR NOTES DUE 2012
NO.___ (EURO)____________
SANITEC INTERNATIONAL S.A.
promises to pay to ____________,
or registered assigns,
the principal sum of __________ Euros, or such other amount reflected on
the schedule hereto through the time of the last duly made entry thereon, on May
15, 2012,
and to pay interest on such principal sum from time to time on the interest
payment dates of May 15 and November 15, commencing November 15, 2002.
Record Dates: May 1 and November 1
This Global Note shall be exchangeable subject to, and in accordance with,
the terms and conditions of the Indenture.
Dated: ________, 200_
SANITEC INTERNATIONAL S.A.
By: ____________________
Name:
Title:
By: ____________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
The Bank of New York,
as Principal Paying Agent
By:_________________________________
Authorized Signatory
A-1
[Back of Global Note]
9% Senior Notes due 2012
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 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 2.07(a) OF THE INDENTURE; AND (ii) THIS GLOBAL NOTE
MAY BE DELIVERED IN ACCORDANCE WITH SECTION 2.07(l) OF THE INDENTURE TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE.
[INSERT THE 144A LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE REGULATION S LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Sanitec International S.A., a company organized under the
Grand Duchy of Luxembourg (the "ISSUER"), promises to pay interest on the
principal amount of this Note at 9% per annum from the date of issue until
maturity and shall pay Special Interest under the Registration Rights Agreement
and Additional Amounts payable pursuant to Section 4.24 of the Indenture
referred to below. The Issuer shall pay interest and Special Interest and
Additional Amounts, if any, semi-annually in arrears on May 15 and November 15
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 shall
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
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; PROVIDED, FURTHER, that the first Interest Payment Date shall be
November 15, 2002. The Issuer shall 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; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest and Additional Amounts (without
regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer shall pay interest on the Notes (except
defaulted interest) and Special Interest and Additional Amounts, if any, to the
Persons who are registered Holders of Notes at the close of business on May 1 or
November 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest and Special Interest and Additional Amounts, if any, at the office or
agency of the Issuer maintained for such purpose within or, at the option of the
Issuer, payment of interest and Special Interest and Additional Amounts, if any,
may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and PROVIDED that payment by wire transfer of immediately
available funds shall be required with respect to principal of, premium, if any,
and interest and Special Interest and Additional Amounts, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Issuer or the Principal Paying Agent. Such payment shall be
in Euros.
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3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York shall act as
Principal Paying Agent, New York Paying Agent and Registrar, and The Bank of New
York (Luxembourg) S.A. shall act as Luxembourg 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. The Issuer issued the Notes under an Indenture dated as of
May 7, 2002 ("INDENTURE") between the Issuer and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx.
77aaa-77bbbb) as if the Indenture was required to be qualified under such act.
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.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this paragraph 5, the Issuer shall
not have the option to redeem the Notes pursuant to this paragraph 5 prior to
May 15, 2005. Thereafter, the Issuer shall have the option to redeem the Notes,
in whole or in part, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid Additional Amounts and
interest thereon, if any, to the applicable Redemption Date, if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2005............................... 109.00%
2006............................... 106.75%
2007............................... 104.50%
2008............................... 103.00%
2009............................... 101.50%
2010 and thereafter................ 100.00%
(b) Notwithstanding the provisions of clause (a) of this Section 5, at any
time prior to May 15, 2005, the Issuer may on one or more occasions redeem up to
35% of the aggregate principal amount of Notes issued under the Indenture at a
redemption price of 109% of the principal amount, plus accrued and unpaid
interest and Special Interest and Additional Amounts, if any, to the Redemption
Date, with the net cash proceeds of one or more Public Equity Offerings;
PROVIDED that: (1) at least 65% of the aggregate principal amount of Notes
issued under the Indenture remains outstanding immediately after the occurrence
of such redemption (excluding Notes held by the Issuer and its Subsidiaries);
and (2) the redemption occurs within 60 days of the date of the closing of such
Public Equity Offering.
(c) The Issuer may, at its option, redeem all (but not less than all) of
the Notes then outstanding, in each case at 100% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest and Additional
Amounts, if any, to the Redemption Date, if the Issuer has become, or would
become, obligated to pay, on the next Interest Payment Date, any Additional
Amounts as a result of change in law (including any regulations promulgated
thereunder) or in the interpretation or administration thereof, if such change
is announced and becomes effective on or after the Issue Date. Notice of any
such redemption must be given within 60 days of the earlier of the announcement
and the effectiveness of any such change.
6. MANDATORY REDEMPTION.
The Issuer shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
A-3
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuer shall, within ten days
following the occurrence of such Change of Control, be required to make an offer
(a "CHANGE OF CONTROL OFFER") to repurchase all or any part (equal to
(euro)1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101.0% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest and Additional Amounts, if any,
thereon, to the date of purchase (the "CHANGE OF CONTROL PAYMENT"). Within ten
days following any Change of Control, the Issuer shall mail a notice to each
Holder setting forth the procedures governing the Change of Control Offer as
required by the Indenture.
(b) If the Issuer or a Subsidiary consummates any Asset Sales and the
aggregate amount of Excess Proceeds exceeds (euro)15,000,000, the Issuer shall
commence an offer to all Holders of Notes (as "ASSET SALE OFFER") pursuant to
Section 4.08 of the Indenture to purchase the maximum principal amount of Notes
(including any Additional Notes) that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100.0% of the principal
amount thereof plus accrued and unpaid interest, Special Interest and Additional
Amounts thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture.
8. NOTICE OF REDEMPTION. Notice of redemption shall 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. Notes in denominations
larger than(euro)1,000 may be redeemed in part but only in whole multiples
of(euro)1,000, unless all of the Notes held by a Holder are to be redeemed. On
and after the Redemption Date interest ceases to accrue on Notes or portions
thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of(euro)1,000 and integral multiples
of(euro)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 Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
and Additional Notes, if any, voting as a single class, and any existing default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture or the Notes 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 Issuer's obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the Parent's assets, 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 provide for the
Issuance of Additional Notes in accordance with the limitations set forth in the
Indenture.
A-4
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default by the
Issuer for 30 days in the payment when due of interest on, or Additional Amounts
or Special interest, if any, with respect to, the Notes; (ii) default by the
Issuer in payment when due of principal of or premium, if any, on the Notes when
the same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise, (iii) failure by the Issuer
or any of its Subsidiaries to comply with Sections 4.07, 4.08, 4.18 or 4.19 or
Article V of the Indenture; (iv) failure by the Issuer or any of its
Subsidiaries for 30 days after notice to the Issuer by the Trustee or the
Holders of at least 25% in principal amount of the Notes (including Additional
Notes, if any) then outstanding voting as a single class to comply with any
covenant, representation, warranty or certain other agreements in the Indenture
or the Notes or the Notes Security Pledge Agreement; (v) default by the Issuer
or any of its Restricted Subsidiaries under certain other agreements relating to
Indebtedness of the Issuer which default results in the acceleration of such
Indebtedness prior to its express maturity; (vi) repudiation by the Issuer of
any of its obligations under the Notes Security Pledge Agreement or
determination by any court of competent jurisdiction that any provision of the
Notes Security Pledge Agreement is unenforceable against the Issuer for any
reason; (vii) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (viii) certain events of bankruptcy or
insolvency with respect to the Issuer or any of its Restricted Subsidiaries. If
any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes shall become due and payable 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 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) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes 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 Special Interest or Additional
Amounts 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.
13. TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its
Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A past, present or future director,
officer, employee, incorporator or stockholder, of the Issuer as such, shall not
have any liability for any obligations of the Issuer under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Principal Paying Agent or an authenticating agent.
16. 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).
A-5
17. COMMON CODE AND ISIN. The Issuer has caused Common Codes and ISINs to
be printed on the Notes and the Trustee may use Common Code or ISIN 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.
A-6
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:______________________________
(Insert assignee's legal name)
___________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________________________
to transfer this Note on the books of the Issuer. The agent may substitute
another to act for him.
Date: _______________
Your Signature: _______________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.07 or 4.08 of the Indenture, check the appropriate box below:
/ / Section 4.07 / / Section 4.08
If you want to elect to have only part of the Note purchased by the Issuer
pursuant to Section 4.07 or Section 4.08 of the Indenture, state the amount you
elect to have purchased:
(euro)_______________
Date: _______________
Your Signature:_________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:_________________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SENIOR NOTE
The following exchanges of a part of this Global Note for an interest in
another Global Note or for a Definitive Registered Note, or exchanges of a part
of another Global Note or Definitive Registered Note for an interest in this
Global Note, have been made:
--------------------------------------------------------------------------------------------------------------
Principal Amount
at maturity of this
Amount of decrease Amount of increase in Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
at maturity of at maturity of decrease of Trustee or Common
Date of Exchange this Global Note this Global Note (or increase) Depositary
---------------- -------------------- --------------------- ------------------- --------------------
--------------------------------------------------------------------------------------------------------------
A-9
EXHIBIT B
[Face of Definitive Registered Note]
--------------------------------------------------------------------------------
ISIN: ____________
9% SENIOR NOTES DUE 2012
NO. R- (EURO)____________
SANITEC INTERNATIONAL S.A.
promises to pay to ____________,
or registered assigns,
the principal sum of __________ Euros, or such other amount reflected on
the schedule hereto through the time of the last duly made entry thereon, on May
15, 2012,
and to pay interest on such principal sum from time to time on the interest
payment dates of May 15 and November 15, commencing November 15, 2002.
Record Dates: May 1 and November 1
This Global Note shall be exchangeable subject to, and in accordance with,
the terms and conditions of the Indenture.
Dated: __________, 200_
SANITEC INTERNATIONAL S.A.
By ________________________
Name:
Title:
By:________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
The Bank of New York,
as Principal Paying Agent
By:_________________________________
Authorized Signatory
--------------------------------------------------------------------------------
B-1
[Back of Definitive Registered Note]
9% Senior Notes due 2012
[INSERT THE 144A LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE REGULATION S LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Sanitec International S.A., a company organized under the
Grand Duchy of Luxembourg (the "ISSUER"), promises to pay interest on the
principal amount of this Note at 9% per annum from the date of issue until
maturity and shall pay Special Interest under the Registration Rights Agreement
and Additional Amounts payable pursuant to Section 4.24 of the Indenture
referred to below. The Issuer shall pay interest and Special Interest and
Additional Amounts, if any, semi-annually in arrears on May 15 and November 15
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 shall
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
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; PROVIDED, FURTHER, that the first Interest Payment Date shall be
November 15, 2002. The Issuer shall 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; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Special Interest and Additional Amounts (without
regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day
year of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer shall pay interest on the Notes (except
defaulted interest) and Special Interest and Additional Amounts, if any, to the
Persons who are registered Holders of Notes at the close of business on May 1 or
November 1 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.13 of the Indenture with respect to defaulted
interest. The Notes shall be payable as to principal, premium, if any, and
interest and Special Interest and Additional Amounts, if any, at the office or
agency of the Issuer maintained for such purpose within or, at the option of the
Issuer, payment of interest and Special Interest and Additional Amounts, if any,
may be made by check mailed to the Holders at their addresses set forth in the
register of Holders, and PROVIDED that payment by wire transfer of immediately
available funds shall be required with respect to principal of, premium, if any,
and interest and Special Interest and Additional Amounts, if any, on, all Global
Notes and all other Notes the Holders of which shall have provided wire transfer
instructions to the Issuer or the Principal Paying Agent. Such payment shall be
in Euros.
3. PAYING AGENT AND REGISTRAR. Initially, The Bank of New York shall act as
Principal Paying Agent, New York Paying Agent and Registrar, and The Bank of New
York (Luxembourg) S.A. shall act as Luxembourg 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. The Issuer issued the Notes under an Indenture dated as of
May 7, 2002 ("INDENTURE") between the Issuer and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as
B-2
amended (15 U.S. Code Sections 77aaa-77bbbb) as if the Indenture was required to
be qualified under such act. 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.
5. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this paragraph 5, the Issuer shall
not have the option to redeem the Notes pursuant to this paragraph 5 prior to
May 15, 2005. Thereafter, the Issuer shall have the option to redeem the Notes,
in whole or in part, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid Additional Amounts and
interest thereon, if any, to the applicable Redemption Date, if redeemed during
the twelve-month period beginning on May 15 of the years indicated below:
YEAR PERCENTAGE
---- ----------
2005.................................. 109.00%
2006.................................. 106.75%
2007.................................. 104.50%
2008.................................. 103.00%
2009.................................. 101.50%
2010 and thereafter................... 100.00%
(b) Notwithstanding the provisions of clause (a) of this Section 5, at any
time prior to May 15, 2005, the Issuer may on one or more occasions redeem up to
35% of the aggregate principal amount of Notes issued under the Indenture at a
redemption price of 109% of the principal amount, plus accrued and unpaid
interest and Special Interest and Additional Amounts, if any, to the Redemption
Date, with the net cash proceeds of one or more Public Equity Offerings;
PROVIDED that: (1) at least 65% of the aggregate principal amount of Notes
issued under the Indenture remains outstanding immediately after the occurrence
of such redemption (excluding Notes held by the Issuer and its Subsidiaries);
and (2) the redemption occurs within 60 days of the date of the closing of such
Public Equity Offering.
(c) The Issuer may, at its option, redeem all (but not less than all) of
the Notes then outstanding, in each case at 100% of the principal amount
thereof, plus accrued and unpaid interest and Special Interest and Additional
Amounts, if any, to the Redemption Date, if the Issuer has become, or would
become, obligated to pay, on the next Interest Payment Date, any Additional
Amounts as a result of change in law (including any regulations promulgated
thereunder) or in the interpretation or administration thereof, if such change
is announced and becomes effective on or after the Issue Date. Notice of any
such redemption must be given within 60 days of the earlier of the announcement
and the effectiveness of any such change.
6. MANDATORY REDEMPTION.
The Issuer shall not be required to make mandatory redemption or sinking
fund payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Issuer shall, within ten days
following the occurrence of such Change of Control, be required to make an offer
(a "CHANGE OF CONTROL OFFER") to repurchase all or any part (equal to
(euro)1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101.0% of the aggregate principal amount thereof plus
accrued and unpaid interest and Special Interest and Additional Amounts, if any,
thereon, to the date of purchase (the "CHANGE OF CONTROL PAYMENT").
B-3
Within ten days following any Change of Control, the Issuer shall mail a notice
to each Holder setting forth the procedures governing the Change of Control
Offer as required by the Indenture.
(b) If the Issuer or a Subsidiary consummates any Asset Sales and the
aggregate amount of Excess Proceeds exceeds (euro)15,000,000, the Issuer shall
commence an offer to all Holders of Notes (as "ASSET SALE OFFER") pursuant to
Section 4.08 of the Indenture to purchase the maximum principal amount of Notes
(including any Additional Notes) that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100.0% of the principal
amount thereof plus accrued and unpaid interest, Special Interest and Additional
Amounts thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture.
9. NOTICE OF REDEMPTION. Notice of redemption shall 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. Notes in denominations
larger than(euro)1,000 may be redeemed in part but only in whole multiples
of(euro)1,000, unless all of the Notes held by a Holder are to be redeemed. On
and after the Redemption Date interest ceases to accrue on Notes or portions
thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of(euro)1,000 and integral multiples
of(euro)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 Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
and Additional Notes, if any, voting as a single class, and any existing default
or compliance with any provision of the Indenture or the Notes may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes and Additional Notes, if any, voting as a single class.
Without the consent of any Holder of a Note, the Indenture or the Notes 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 Issuer's obligations to Holders of
the Notes in case of a merger or consolidation or sale of all or substantially
all of the Parent's assets, 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 provide for the
Issuance of Additional Notes in accordance with the limitations set forth in the
Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default by the
Issuer for 30 days in the payment when due of interest on, or Additional Amounts
or Special interest, if any, with respect to, the Notes; (ii) default by the
Issuer in payment when due of principal of or premium, if any, on the Notes when
the same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise, (iii) failure by the Issuer
or any of its Subsidiaries to comply with Sections 4.07, 4.08, 4.18 or 4.19 or
Article V of the Indenture; (iv) failure by the Issuer or any of its
Subsidiaries for 30 days after notice to the Issuer by the Trustee or the
Holders of at least 25% in principal amount of the Notes (including Additional
Notes, if any) then outstanding voting as a single class to
B-4
comply with any covenant, representation, warranty or other agreements in the
Indenture or the Notes or the Notes Security Pledge Agreement; (v) default by
the Issuer or any of its Restricted Subsidiaries under certain other agreements
relating to Indebtedness of the Issuer which default results in the acceleration
of such Indebtedness prior to its express maturity; (vi) repudiation by the
Issuer of any of its obligations under the Notes Security Pledge Agreement or
determination by any court of competent jurisdiction that any provision of the
Notes Security Pledge Agreement is unenforceable against the Issuer for any
reason; (vii) certain final judgments for the payment of money that remain
undischarged for a period of 60 days; and (viii) certain events of bankruptcy or
insolvency with respect to the Issuer or any of its Restricted Subsidiaries. If
any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes shall become due and payable 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 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) if it determines that
withholding notice is in their interest. The Holders of a majority in aggregate
principal amount of the Notes then outstanding by notice to the Trustee may on
behalf of the Holders of all of the Notes 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 Special Interest or Additional
Amounts 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.
13. TRUSTEE DEALINGS WITH ISSUER. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Issuer or its Affiliates, and may otherwise deal with the Issuer or its
Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A past, present or future director,
officer, employee, incorporator or stockholder, of the Issuer as such, shall not
have any liability for any obligations of the Issuer under the Notes or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Principal Paying Agent or an authenticating agent.
16. 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).
17. COMMON CODE AND ISIN. The Issuer has caused Common Codes and ISINs to
be printed on the Notes and the Trustee may use Common Code or ISIN 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.
B-5
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: _____________________________
(Insert assignee's legal name)
__________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
__________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ to transfer
this Note on the books of the Issuer. The agent may substitute another to act
for him.
Date: _______________
Your Signature:_________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-6
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to
Section 4.07 or 4.08 of the Indenture, check the appropriate box below:
/ / Section 4.07 / / Section 4.08
If you want to elect to have only part of the Note purchased by the Issuer
pursuant to Section 4.07 or Section 4.08 of the Indenture, state the amount you
elect to have purchased:
(euro)_______________
Date: _______________
Your Signature: ___________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: ___________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-7
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
The Bank of New York
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Sanitec International S.A.
Re: 9% Senior Notes due 2012 of Sanitec International S.A.
------------------------------------------------------
Reference is hereby made to the Indenture, dated as of May 7, 2002 (the
"INDENTURE"), between Sanitec International S.A., as issuer (the "ISSUER") and
The Bank of New York, as trustee. 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 (euro)___________ in such Note[s] or interests (the
"TRANSFER"), to ___________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. CHECK IF TRANSFER IS PURSUANT TO RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the United States US
Securities Act of 1933, as amended (the "US SECURITIES ACT"), and, accordingly,
the Transferor hereby further certifies that the beneficial interest or
Definitive Registered Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial 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 any applicable securities laws of any other
jurisdiction. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive
Registered Note shall be subject to the restrictions on transfer enumerated in
the 144A Legend printed on the 144A Global Note and/or the 144A Definitive
Registered Note and in the Indenture and the US Securities Act.
2. CHECK IF TRANSFER IS PURSUANT TO REGULATION S. The Transfer is being
effected pursuant to and in accordance with Rule 904 under the US 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 (A) 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 believed and believes
that the Transferee was outside the United States or (B) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither 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 US Securities Act; and (iii) the
transaction is not part of a plan or scheme to evade the registration
requirements of the US 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 shall be subject to the
restrictions on Transfer enumerated in the Regulation S Legend and in the
Indenture and the US Securities Act.
C-1
3. CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the US Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any 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; (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) acquired such Book-Entry Interest or
Definitive Registered Note from the Issuer, or an Affiliate of the Issuer, and
(iv) the restrictions on transfer contained in the Indenture and the 144A Legend
are not required in order to maintain compliance with the US 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 shall no longer be subject to the restrictions on transfer enumerated in
the 144A Legend printed on the 144A Global Notes and/or the 144A Definitive
Registered Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Trustee.
________________________________________
[Insert Name of Transferor]
By: ____________________________________
Name:
Title:
Dated: _______________________
C-2
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) a Book-Entry Interest held through Euroclear Account No.__________
or Clearstream Banking Account No. ____________, in the:
(i) 144A Global Note (ISIN _________), or
(ii) Regulation S Global Note (ISIN _________), or
(b) a 144A Definitive Registered Note.
(c) a Regulation S Definitive Registered Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) a Book-Entry Interest through Euroclear Account No._______________
or Clearstream Banking Account No. __________ in the:
(i) 144A Global Note (ISIN _________), or
(ii) Regulation S Global Note (ISIN _________), or
(b) a 144A Definitive Registered Note; or
(c) a Regulation S Definitive Registered Note; or
(d) an Unrestricted Definitive Registered Note.
C-3
EXHIBIT D
FORM OF CERTIFICATE OF EXCHANGE
The Bank of New York
One Canada Xxxxxx
00xx Xxxxx
Xxxxxx X00 0XX
Re: 9% SENIOR NOTES DUE 2012 OF SANITEC INTERNATIONAL S.A.
------------------------------------------------------
Reference is hereby made to the Indenture, dated as of May 7, 2002 (the
"INDENTURE"), between Sanitec International S.A., as issuer (the "ISSUER"), and
The Bank of New York, as trustee. 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 (euro)____________ in such Note[s] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF BOOK-ENTRY INTERESTS IN GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE REGISTERED NOTES OR 144A DEFINITIVE REGISTERED NOTES TO BOOK-ENTRY
INTEREST IN REGULATION S GLOBAL NOTE.
(a) CHECK (I) IF EXCHANGE IS FROM BOOK-ENTRY INTEREST IN 144A GLOBAL NOTE
TO UNRESTRICTED DEFINITIVE REGISTERED NOTE OR (II) IF EXCHANGE IS FROM
DEFINITIVE REGISTERED NOTES TO BOOK-ENTRY INTERESTS IN THE REGULATION S GLOBAL
NOTE. In connection with the Exchange of the Owner's Book-Entry Interest in the
144A Global Note for Unrestricted Definitive Registered Note(s) or with the
Exchange of the Owner's 144A Definitive Registered Notes for Book-Entry
Interests in the Regulation S Global Note, in each case, in an equal principal
amount, the Owner hereby certifies (i) the Notes are being acquired for the
Owner's own account without transfer, (ii) such Owner is not (and during the
three months preceding the Exchange was not) an Affiliate of the Issuer, (iii)
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 an Affiliate of the Issuer, (iv) such
Owner is permitted under Rule 144(k) of the US Securities Act to sell all such
Notes without registration under the US Securities Act, (v) the restrictions on
transfer contained in the Indenture and the 144A Legend or the Regulation S
Legend are not required in order to maintain compliance with the US Securities
Act and (vi) the Note(s) are being acquired in compliance with all applicable
securities laws of any other jurisdiction.
(b) CHECK IF EXCHANGE IS FROM BOOK-ENTRY INTEREST IN THE REGULATION S
GLOBAL NOTE TO UNRESTRICTED DEFINITIVE REGISTERED NOTE. In connection with the
Exchange of the Owner's Book-Entry Interest in the Regulation S Global Note for
Unrestricted Definitive Registered Notes in an equal principal amount, the Owner
hereby certifies (i) the Definitive Registered Note(s) are being acquired for
the Owner's own account without transfer, (ii) such Owner acquired such
Book-Entry Interest in a transaction complying with Rule 903 or Rule 904 under
the US Securities Act, (iii) if such Owner acquired such Book-Entry Interest in
a transaction complying with Rule 903 under the US Securities Act, a period of
at least 40 days has elapsed since the commencement of the Distribution
Compliance Period (as defined in Regulation S under the US Securities Act) with
respect to such Book-Entry Interest, (iv) the restrictions on transfer contained
in the Indenture and the Regulation S Legend are not required in order to
maintain compliance with the US Securities Act and (vi) the Unrestricted
Definitive Registered Notes are being acquired in compliance with all applicable
securities laws of any other jurisdiction.
D-1
2. EXCHANGE OF RESTRICTED DEFINITIVE REGISTERED NOTES OR BOOK-ENTRY
INTEREST IN GLOBAL NOTES FOR RESTRICTED DEFINITIVE REGISTERED NOTES OR A
BOOK-ENTRY INTEREST IN GLOBAL NOTE(S).
[UNLESS THIS BOX IS CHECKED, YOU SHALL NOT BE PERMITTED TO
COMPLETE THE EXCHANGE]
(a) 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 ONLY IF APPLICABLE.]
(b) In connection with the Exchange, the Owner hereby certifies that it
acquired its Regulation S Definitive Registered Notes or Book-Entry Interest in
the Regulation S Global Note in a transaction complying with Rule 903 or Rule
904 under the US Securities Act.
If you checked box ("b") you shall receive Regulation S Definitive
Registered Notes or a Book-Entry Interest in the Regulation S Global Note and,
accordingly, such Regulation S Notes bear the Regulation S Legend and shall be
subject to the restrictions on transfer enumerated therein and in the Indenture
and the US Securities Act.
If you did not check box "b" you shall receive 144A Definitive Registered
Notes or a Book-Entry Interest in the 144A Global Note and, accordingly, such
144A Notes shall bear the 144A Legend and shall be subject to the restrictions
on transfer enumerated therein and in the Indenture and the US Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuer and the Trustee.
______________________________________
[Insert Name of Transferor]
By:___________________________________
Name:
Title:
Dated: ______________________
D-2
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) a Book-Entry Interest held through Euroclear Account No.__________
or Clearstream Banking Account No. ____________, in the:
(i) 144A Global Note (ISIN _________), or
(ii) Regulation S Global Note (ISIN _________), or
(b) a 144A Definitive Registered Note.
(c) a Regulation S Definitive Registered Note.
2. After the Transfer the Transferee shall hold:
[CHECK ONE]
(a) a Book-Entry Interest through Euroclear Account No._____________
or Clearstream Banking Account No.__________ in the:
(i) 144A Global Note (ISIN _________), or
(ii) Regulation S Global Note (ISIN _________), or
(b) a 144A Definitive Registered Note; or
(c) a Regulation S Definitive Registered Note; or
(d) an Unrestricted Definitive Registered Note.
D-3
