Exhibit 4.3
DEED OF GUARANTEE
THIS DEED OF GUARANTEE is made on 27th March, 2002 by CIBA SPECIALTY CHEMICALS
HOLDING INC., (the "Guarantor") in favour of the Relevant Account Holders (as
defined in the Deed of Covenant referred to below) and the holders for the
time being of the Notes (as defined below) and the interest coupons (if any)
appertaining to the Notes ("Coupons"), the Coupons being attached on issue to
Definitive Note(s) (as defined below). Each Relevant Account Holder, each
holder of a Note and each holder of a Coupon is a "Holder".
WHEREAS:
(A) CIBA SPECIALTY CHEMICALS CORPORATION, CIBA SPECIALTY CHEMICALS PLC,
CIBA SPEZIALITATENCHEMIE HOLDING DEUTSCHLAND GMBH, CIBA SPECIALTY
CHEMICALS EUROFINANCE LTD. (the "Issuers" and each an "Issuer") and
the Guarantor have entered into an amended and restated Program
Agreement (the "Program Agreement", which expression includes the
same as it may be amended or supplemented from time to time) dated
27th March, 2002 with the Dealers named therein, which amends and
restates the amended and restated program agreement entered into by,
inter alia, Ciba Specialty Chemicals Corporation, Ciba Specialty
Chemicals PLC and Ciba Spezialitatenchemie Holding Deutschland GmbH
dated 30th March, 2001 (the "Principal Program Agreement"), under
which each Issuer proposes from time to time to issue Euro Medium
Term Notes (the "Notes", such expression to include each Definitive
Note issued by an Issuer and each Global Note issued by an Issuer
(where "Definitive Note" and "Global Note" have the meanings ascribed
thereto in the Agency Agreement defined below) and to include any
receipts issued in respect of Notes repayable in instalments);
(B) each Issuer has executed a Deed of Covenant of even date (the "Deed
of Covenant") relating to Global Notes issued by that Issuer pursuant
to the Program Agreement;
(C) the Issuers and the Guarantor have entered into an amended and
restated agency agreement (the "Agency Agreement", which expression
includes the same as it may be amended or supplemented from time to
time) dated 27th March, 2002 with the Paying Agents named therein;
and
(D) this Deed of Guarantee amends and restates the amended and restated
Deed of Guarantee made by the Guarantor dated 30th March, 2001, and
does not affect any Notes issued pursuant to the Principal Program
Agreement prior to the date hereof.
NOW THIS DEED WITNESSES as follows:
1. Guarantee: The Guarantor irrevocably and unconditionally undertakes
to secure by way of deed poll to each Holder the due and punctual
payment as stipulated in an Issuer's Note or Coupon or under its Deed
of Covenant, as the case may be. The Guarantor therefore undertakes
to pay on first demand of such a Holder, irrespective of the validity
and the legal effects of the above mentioned relationship in respect
of a Note or Coupon or Deed of Covenant and waiving all rights of
objection and defence arising therefrom any amount not paid by the
relevant Issuer (including any premium or any other amounts of
whatever nature or additional amounts) upon receipt of the written
request for payment by such Holder and the confirmation in writing by
the Agent that the relevant Issuer has not made such payments on the
dates specified and in the amount called under the Guarantee. The
Guarantor hereby expressly undertakes and secures that payments under
this Guarantee will not be less than as
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stipulated in an Issuer's Note or Coupon. In implementation of this
undertaking and in case Swiss withholding taxes are imposed in
respect of payments made under this Guarantee, the Guarantor
undertakes, as a separate and independent obligation, to pay an
increased amount on the relevant Note or Coupon so that the payment
received by the Noteholder or Couponholder shall equal the amount
actually stipulated in such Note or Coupon (assuming no such
withholding applies).
2. Guarantor's Obligations Continuing: The Guarantor's obligations under
this Guarantee are and will remain in full force and effect by way of
continuing security until no sum remains payable under any Note, any
Coupon or the Deed of Covenant. Furthermore, these obligations of the
Guarantor are additional to, and not instead of, any security or
other guarantee or indemnity at any time existing in favour of a
Holder, whether from the Guarantor or otherwise. The Guarantor
irrevocably waives all notices and demands whatsoever, except as
provided herein.
3. Repayment to the Issuer: If any payment received by a Holder is, on
the subsequent liquidation or insolvency of the relevant Issuer,
avoided under any laws relating to liquidation or insolvency, such
payment will not be considered as having discharged or diminished the
liability of the Guarantor and this Guarantee will continue to apply
as if such payment had at all times remained owing by the relevant
Issuer.
4. Status of Guarantee: The payment obligations of the Guarantor under
this Guarantee constitute direct, unconditional and (subject to
clause 5 below) unsecured obligations of the Guarantor and (subject
as aforesaid) rank and will rank pari passu with all other
outstanding unsecured and unsubordinated indebtedness and monetary
obligations of the Guarantor, present or future, including those in
respect of deposits (other than obligations preferred by law).
5. Negative Pledge of the Guarantor: So long as any of the Notes remains
outstanding, but not later than the time when payment for the full
amount of principal and interest in respect of all outstanding Notes
has been duly provided for, the Guarantor will procure that no
Indebtedness of the Guarantor which is represented by bonds, notes or
other securities which in any such case are listed or capable of
being listed on any recognised Stock Exchange will be secured upon
any of the present or future assets or revenues of the Guarantor
unless all amounts payable under this Guarantee are secured equally
and rateably with such other security or such other security or
guarantee is granted to the Notes and Coupons as shall have been
approved by an Extraordinary Resolution of the Noteholders. Any
reference to an obligation being guaranteed shall include a reference
to an indemnity being given in respect of payment thereof.
As used herein "Indebtedness" means all indebtedness for money
borrowed that is created, assumed, incurred or guaranteed in any
manner by the Guarantor or for which the Guarantor is otherwise
responsible or liable.
6. Tax Gross-up: All payments in respect of the Notes by the Guarantor
shall be made without withholding or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental
charges of whatever nature ("Taxes") imposed or levied by or on
behalf of Switzerland, or any political sub-division of, or any
authority in, or of, Switzerland having power to tax, unless the
withholding or deduction of the Taxes is required by law. In that
event, the Guarantor will pay such additional amounts as may be
necessary in order that the net amounts received by the Noteholders
and Couponholders after the withholding or deduction shall equal the
respective amounts which would have been receivable in respect of the
Notes or, as the case may be, Coupons in the absence of the
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withholding or deduction; except that no additional amount shall be
payable in relation to any payment in respect of any Note or Coupon:
(i) by or on behalf of a person liable to such tax, duty or
charge in respect of such Note, Receipt or Coupon by reason
of his having some connection with Switzerland other than
the mere holding or ownership of such Note, Receipt or
Coupon; and/or
(ii) presented for payment to the relevant Issuer more than 30
days after the Relevant Date (as defined in Condition 7(f)
of the Terms and Conditions of the relevant Notes) except to
the extent that a holder would have been entitled to
additional amounts on presenting the same for payment on the
last day of the period of 30 days; and/or
(iii) to, or to a third party on behalf of, a holder who would be
able to avoid such withholding or deduction by making a
declaration of non-residence or similar claim for exemption
but fails to do so; and/or
(iv) where such withholding or deduction is imposed on a payment
to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings
implementing the conclusions of the ECOFIN Council meeting
of 26th-27th November, 2000, or any law implementing or
complying with, or introduced in order to conform to, such
Directive; and/or
(v) 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 or Coupon to another Paying
Agent in a Member State of the EU.
7. Power to execute: The Guarantor hereby warrants, represents and
covenants with each Holder that it has all corporate power, and has
taken all necessary corporate or other steps, to enable it to
execute, deliver and perform this Guarantee, and that this Guarantee
constitutes a legal, valid and binding obligation of the Guarantor,
enforceable in accordance with its terms subject to applicable
bankruptcy, reorganisation, insolvency, fraudulent transfer,
moratorium and other similar laws affecting creditor's rights
generally from time to time in effect, and to general principles of
equity, regardless of whether considered in a proceeding in law or at
equity.
8. Deposit of Guarantee: This Guarantee shall take effect as a Deed Poll
for the benefit of the Holders from time to time and for the time
being. This Guarantee shall be deposited with and held by The Chase
Manhattan Bank for the benefit of the Holders until all the
obligations of the Guarantor hereunder have been discharged in full.
9. Production of Guarantee: The Guarantor hereby acknowledges the right
of every Holder to the production of, and the right of every Holder
to obtain (upon payment of a reasonable charge) a copy of, this
Guarantee, and further acknowledges and covenants that the
obligations binding upon it contained herein are owed to, and shall
be for the account of, each and every Holder, and that each Holder
shall be entitled severally to enforce the said obligations against
the Guarantor.
10. Subrogation: Until all amounts which may be payable under the Notes,
the Coupons and/or the Deed of Covenant have been irrevocably paid in
full, the Guarantor shall not exercise any rights of subrogation in
respect of any rights of any Holder or claim in competition with the
Holders against the relevant Issuer.
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11. Governing Law and Jurisdiction: This Guarantee is governed by and
shall be construed in accordance with English law. The Guarantor
irrevocably agrees for the benefit of each Holder that the courts of
England are to have jurisdiction to settle any disputes which may
arise out of or in connection with this Guarantee and that
accordingly any suit, action or proceedings arising out of or in
connection with this Guarantee (together referred to as
"Proceedings") may be brought in the courts of England.
The Guarantor irrevocably waives any objection which it may have now
or hereafter to the laying of the venue of the Proceedings in the
courts of England and irrevocably agrees that a final judgment in any
Proceedings brought in the courts of England shall be conclusive and
binding upon the Guarantor and may be enforced in the courts of any
other jurisdiction. Nothing contained in this clause shall limit any
right to take Proceedings against the Guarantor in any other court of
competent jurisdiction, nor shall the taking of Proceedings in none
or more jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
No rights are conferred on any person under the Contracts (Rights of
Third Parties) Xxx 0000 to enforce any term of this Global Note, but
this does not affect any right or remedy of any person which exists
or is available apart from that Act.
The Guarantor hereby appoints Ciba Specialty Chemicals PLC as its
agent for service of process in England in respect of any Proceedings
and undertakes that in the event of it ceasing so to act it will
appoint another person as its agent for that purpose.
IN WITNESS whereof this Guarantee has been manually executed as a deed poll on
behalf of the Guarantor.
Executed as a deed )
by CIBA SPECIALTY CHEMICALS )
HOLDING INC. )
acting by ) XXXXXX XXXXX XXXX XXXXXXXX
and )
)
acting under the authority of )
that Company in the presence of: )
Witness's X. XXXXXXX
Signature: .......................
X. XXXXXXX
Name: .......................
C/o CIBA SPECIALTY CHEMICALS INC.
Address: .......................
XX-0000 XXXXX
.......................
Dated 27th March, 2002
CONFORMED COPY
27th March, 2002
CIBA SPECIALTY CHEMICALS HOLDING INC.
as Guarantor
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DEED OF GUARANTEE
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[XXXXX & OVERY LOGO]
London
