1
EXHIBIT 10.3
------------------------------------------
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG
As Issuer
STATE STREET BANK AND TRUST COMPANY
As Trustee
FRESENIUS MEDICAL CARE AG
As Company and as a Guarantor
FRESENIUS MEDICAL CARE HOLDINGS, INC. AND FRESENIUS MEDICAL CARE
DEUTSCHLAND GMBH
As Guarantors
SENIOR SUBORDINATED INDENTURE
DATED AS OF FEBRUARY 19, 1998
with respect to the issuance of
DM 300,300,000
IN AGGREGATE PRINCIPAL AMOUNT OF
7 3/8% SENIOR SUBORDINATED NOTES DUE 2008
------------------------------------------
EXECUTION
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I.
SECTION 1.1. Definitions............................................ 2
SECTION 1.2. Compliance Certificate and Opinions.................... 24
SECTION 1.3. Form of Documents Delivered to Trustee................. 25
SECTION 1.4. Acts of Holders; Record Date........................... 25
SECTION 1.5. Notices, etc., to Trustee, Note Issuer and
Guarantors............................................. 26
SECTION 1.6. Notice to Holders; Waiver.............................. 27
SECTION 1.7. Conflict with Trust Indenture Act...................... 28
SECTION 1.8. Effect of Headings and Table of Contents............... 28
SECTION 1.9. Successors and Assigns................................. 28
SECTION 1.10. Separability Clause.................................... 28
SECTION 1.11. Benefits of Indenture.................................. 28
SECTION 1.12. Governing Law.......................................... 29
SECTION 1.13. Non-Business Days...................................... 29
SECTION 1.14. Duplicate Originals.................................... 29
SECTION 1.15. Submission to Jurisdiction............................. 29
SECTION 1.16. Substitution of Currency............................... 30
ARTICLE II.
SECURITY AND GUARANTY FORMS...................... 30
SECTION 2.1. Forms Generally........................................ 30
SECTION 2.2. Form of Face of Security............................... 31
SECTION 2.3. Form of Reverse of Security............................ 35
SECTION 2.4. Additional Provisions Required in Global
Security and Initial Security.......................... 38
SECTION 2.5. Form of Trustee's Certificate of Authentication........ 39
SECTION 2.6. Form of Guaranty....................................... 39
ARTICLE III.
THE SECURITIES............................. 45
SECTION 3.1. Title and Terms........................................ 45
SECTION 3.2. Denominations.......................................... 46
SECTION 3.3. Execution, Authentication, Delivery and Dating......... 46
SECTION 3.4. Temporary Securities................................... 47
i EXECUTION
3
SECTION 3.5. Registration, Registration of Transfer and Exchange.... 48
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities....... 50
SECTION 3.7. Payment of Interest; Interest Rights Preserved......... 51
SECTION 3.8. Persons Deemed Owners.................................. 52
SECTION 3.9. Cancellation........................................... 53
SECTION 3.10. Computation of Interest................................ 53
SECTION 3.11. Right of Set-Off....................................... 53
SECTION 3.12. Agreed Tax Treatment................................... 53
SECTION 3.13. CUSIP Numbers.......................................... 53
ARTICLE IV.
SATISFACTION AND DISCHARGE....................... 54
SECTION 4.1. Satisfaction and Discharge of Indenture................ 54
SECTION 4.2. Application of Trust Money; Reinstatement.............. 55
SECTION 4.3. Satisfaction, Discharge and Defeasance of
Securities............................................. 56
ARTICLE V.
REMEDIES................................ 58
SECTION 5.1. Events of Default...................................... 58
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment..... 60
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................. 62
SECTION 5.4. Trustee May File Proofs of Claim....................... 62
SECTION 5.5. Trustee May Enforce Claims Without
Possession of Securities............................... 63
SECTION 5.6. Application of Money Collected......................... 64
SECTION 5.7. Limitation on Suits.................................... 64
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium and Interest................ 65
SECTION 5.9. Restoration of Rights and Remedies..................... 65
SECTION 5.10. Rights and Remedies Cumulative......................... 66
SECTION 5.11. Delay or Omission Not Waiver. ......................... 66
SECTION 5.12. Control by Holders. ................................... 66
SECTION 5.13. Waiver of Past Defaults. .............................. 67
SECTION 5.14. Undertaking for Costs. ................................ 67
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. .............. 68
ARTICLE VI.
THE TRUSTEE.............................. 68
ii EXECUTION
4
SECTION 6.1. Certain Duties and Responsibilities. .................. 68
SECTION 6.2. Notice of Defaults. ................................... 69
SECTION 6.3. Certain Rights of Trustee. ............................ 69
SECTION 6.4. Not Responsible for Recitals
or Issuance of Securities. ............................ 70
SECTION 6.5. May Hold Securities. .................................. 71
SECTION 6.6. Money Held in Trust. .................................. 71
SECTION 6.7. Compensation and Reimbursement. ....................... 71
SECTION 6.8. Disqualification; Conflicting Interests. .............. 72
SECTION 6.9. Corporate Trustee Required; Eligibility. .............. 72
SECTION 6.10. Resignation and Removal; Appointment of Successor. .... 73
SECTION 6.11. Acceptance of Appointment by Successor. ............... 74
SECTION 6.12. Merger, Conversion, Consolidation
or Succession to Business. ............................ 74
SECTION 6.13. Preferential Collection of Claims
Against Note Issuer. .................................. 75
SECTION 6.14. Appointment of Authenticating Agent. .................. 75
ARTICLE VII.
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND NOTE ISSUER......... 77
SECTION 7.1. Note Issuer to Furnish Trustee Names and
Addresses of Holders................................... 77
SECTION 7.2. Preservation of Information, Communications to
Holders. .............................................. 77
SECTION 7.3. Reports by Trustee. ................................... 77
SECTION 7.4. Reports by Note Issuer. ............................... 78
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.......... 78
SECTION 8.1. Note Issuer May Consolidate, etc., Only on Certain
Terms. ................................................ 78
SECTION 8.2. Guarantors May Consolidate, etc., Only on Certain
Terms.................................................. 79
SECTION 8.3. Successor Corporation Substituted. .................... 80
SECTION 8.4. Successor to Note Issuer. ............................. 81
ARTICLE IX.
SUPPLEMENTAL INDENTURES........................ 82
SECTION 9.1. Supplemental Indentures Without Consent of Holders. ... 82
SECTION 9.2. Supplemental Indentures with Consent of Holders. ...... 83
iii EXECUTION
5
SECTION 9.3. Execution of Supplemental Indentures................... 84
SECTION 9.4. Effect of Supplemental Indentures. .................... 84
SECTION 9.5. Conformity with Trust Indenture Act. .................. 85
SECTION 9.6. Reference in Securities to Supplemental Indentures. ... 85
ARTICLE X.
COVENANTS............................... 85
SECTION 10.1. Payment of Principal, Premium and Interest. .......... 85
SECTION 10.2. Maintenance of Office or Agency. ..................... 85
SECTION 10.3. Money for Security Payments to be Held in Trust. ..... 86
SECTION 10.4. Existence............................................. 87
SECTION 10.5. Maintenance of Properties............................. 88
SECTION 10.6. Payment of Taxes and Other Claims..................... 88
SECTION 10.7. Maintenance of Insurance.............................. 88
SECTION 10.8. Limitation on Incurrence of Indebtedness.............. 88
SECTION 10.9. Limitation on Restricted Payments..................... 90
SECTION 10.10. Limitation on Restrictions on Distributions
from Subsidiaries..................................... 91
SECTION 10.11. Senior Subordinated Indebtedness; Liens............... 92
SECTION 10.12. Limitation on Affiliate Transactions.................. 93
SECTION 10.13. Limitation on Sales of Assets and Subsidiary Stock.... 93
SECTION 10.14. Intentionally Omitted................................. 96
SECTION 10.15. Change of Control..................................... 96
SECTION 10.16. Statement as to Compliance and Default. .............. 97
SECTION 10.17. Ownership of the Trust and the Note Issuer;
Business of the Note Issuer........................... 97
SECTION 10.18. Waiver of Certain Covenants. ......................... 98
SECTION 10.19. Additional Amounts; Additional Interest............... 98
ARTICLE XI.
REDEMPTION OF SECURITIES........................ 99
SECTION 11.1. Applicability of This Article. ....................... 99
SECTION 11.2. Election to Redeem; Notice to Trustee. ............... 99
SECTION 11.3. Intentionally Omitted. ...............................100
SECTION 11.4. Notice of Redemption. ................................100
SECTION 11.5. Deposit of Redemption Price. .........................100
SECTION 11.6. Payment of Securities Called for Redemption. .........101
SECTION 11.7. Note Issuer's Right of Redemption
in Certain Circumstances. ............................101
iv EXECUTION
6
ARTICLE XII.
SUBORDINATION OF SECURITIES......................101
SECTION 12.1. Securities Subordinate to Senior Indebtedness. .......101
SECTION 12.2. Payment Over of Proceeds Upon Dissolution, etc. ......102
SECTION 12.3. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities. ..........................103
SECTION 12.4. No Payment When Senior Indebtedness in Default. ......103
SECTION 12.5. Payment Permitted If No Default. .....................105
SECTION 12.6. Subrogation to Rights of Holders of
Senior Indebtedness. .................................105
SECTION 12.7. Provisions Solely to Define Relative Rights. .........105
SECTION 12.8. Trustee to Effectuate Subordination. .................106
SECTION 12.9. No Waiver of Subordination Provisions. ...............106
SECTION 12.10. Notice to Trustee. ...................................106
SECTION 12.11. Reliance on Judicial Order or Certificate
of Liquidating Agent. ................................107
SECTION 12.12. Trustee Not Fiduciary for Holders
of Senior Indebtedness. ..............................107
SECTION 12.13. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. ......107
SECTION 12.14. Article Applicable to Paying Agents. .................107
SECTION 12.15. Certain Conversions or Exchanges Deemed Payment. .....108
ARTICLE XIII.
GUARANTY................................108
SECTION 13.1. Guaranty. ............................................108
SECTION 13.2. Execution and Delivery of Guaranties. ................112
SECTION 13.3. Guarantors May Consolidate, etc., on Certain
Terms. ...............................................112
SECTION 13.4. Release of Guarantors. ...............................112
SECTION 13.5. Additional Guarantors. ...............................113
ARTICLE XIV.
SUBORDINATION OF GUARANTIES......................113
SECTION 14.1. Guaranties Subordinate to Senior
Indebtedness of Guarantors. ..........................113
SECTION 14.2. Payment Over of Proceeds Upon Dissolution, etc........114
SECTION 14.3. Prior Payment to Senior Indebtedness
v EXECUTION
7
of a Guarantor Upon Acceleration of Securities. ......115
SECTION 14.4. No Payment When Senior Indebtedness of a
Guarantor in Default. ................................116
SECTION 14.5. Payment Permitted If No Default. .....................117
SECTION 14.6. Subrogation to Rights of Holders of
Senior Indebtedness of a Guarantor....................117
SECTION 14.7. Provisions Solely to Define Relative Rights. .........118
SECTION 14.8. Trustee to Effectuate Subordination. .................118
SECTION 14.9. No Waiver of Subordination Provisions. ...............118
SECTION 14.10. Notice to Trustee. ...................................118
SECTION 14.11. Reliance on Judicial Order or Certificate
of Liquidating Agent. ................................119
SECTION 14.12. Trustee Not Fiduciary for Holders of
Senior Indebtedness of the Guarantors. ...............119
SECTION 14.13. Rights of Trustee as Holder of Senior Indebtedness
of the Guarantors; Preservation of Trustee's Rights. .119
SECTION 14.14. Article Applicable to Paying Agents. .................120
SECTION 14.15. Certain Conversions or Exchanges Deemed Payment. .....120
EXHIBITS
EXHIBIT A Form of Amended and Restated Declaration of Trust of
Fresenius Medical Care Capital Trust III
vi EXECUTION
8
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture upon
consummation of the Exchange Offer (as defined in the Indenture) whether or not
physically contained therein) and the Senior Subordinated Indenture, dated as of
February 19, 1998.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
----------- -------
ss.310 (a) (1), (2) and (5)...................................6.9
(a) (3)................................................Not Applicable
(a) (4)................................................Not Applicable
(b)....................................................6.8
.......................................................6.10
(c)....................................................Not Applicable
ss.311 (a)....................................................6.13
(b)....................................................6.13
(b) (2)................................................6.13
.......................................................6.13
ss.312 (a)....................................................7.1
.......................................................7.2(a)
(b)....................................................7.2(b)
(c)....................................................7.2(c)
ss.313 (a)....................................................7.3(a)
(b)....................................................7.3(a)
(c)....................................................7.3(a), 7.3(b)
(d)....................................................7.3(c)
ss.314 (a) (1), (2) and (3)...................................7.4
(a) (4)................................................10.16
(b)....................................................Not Applicable
(c) (1)................................................1.2
(c) (2)................................................1.2
(c) (3)................................................Not Applicable
(d)....................................................Not Applicable
vii EXECUTION
9
(e)....................................................1.2
(f)....................................................Not Applicable
ss.315 (a)....................................................6.1(a)
(b)....................................................6.2
.......................................................7.3(a) (6)
(c)....................................................6.1(b)
(d)....................................................6.1(c)
(d) (1)................................................6.1(a)
(d) (2)................................................6.1(c) (2)
(d) (3)................................................6.1(c) (3)
(e)....................................................5.14
ss.316 (a)....................................................1.1
(a) (1) (A)............................................5.12
(a) (1) (B)............................................5.13
(a) (2)................................................Not Applicable
(b)....................................................5.8
(c)....................................................1.4(f)
ss.317 (a) (1)................................................5.3
(a) (2)................................................5.4
(b)....................................................10.3
ss.318 (a)....................................................1.7
----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Senior Subordinated Indenture.
viii EXECUTION
10
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG
SENIOR SUBORDINATED INDENTURE
SENIOR SUBORDINATED INDENTURE, dated as of February 19, 1998, among FMC
TRUST FINANCE S.A.R.L. LUXEMBOURG, a private limited company (Societe a
responsabilite limitee) organized under the laws of Luxembourg (hereinafter
called the "Note Issuer") having its principal office at X-0000 Xxxxxxxxxx, 00
xxxxxxxxx Xxxxxxxx 0xx, as Issuer, FRESENIUS MEDICAL CARE AG, a stock
corporation (Aktiengesellschaft) organized under the laws of Germany
(hereinafter called the "Company"), as the Company and as a Guarantor, each of
the other GUARANTORS (as hereinafter defined), and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts chartered trust company, as Trustee (hereinafter called
the "Trustee").
RECITALS OF THE NOTE ISSUER AND THE GUARANTORS
The Note Issuer has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 7 3/8% Senior Subordinated Notes
due February 1, 2008 of substantially the tenor hereinafter provided, including,
without limitation, Securities (this term and other capitalized terms used and
not defined in these recitals having the respective meanings set forth in
Article I hereof) issued to evidence loans made to the Note Issuer of the
proceeds from the issuance by Fresenius Medical Care Capital Trust III, a
Delaware business trust (the "Trust"), of preferred trust interests in such
Trust (the "Preferred Securities") and common trust interests in such Trust (the
"Common Securities" and, collectively with the Preferred Securities, the "Trust
Securities"), and to provide the terms and conditions upon which the Securities
are to be authenticated, issued and delivered.
The Company, directly or indirectly, owns beneficially and of record 100%
of the Capital Stock of the Note Issuer and the other Guarantors (other than the
preferred stock of Fresenius Medical Care Holdings, Inc.); the Note Issuer and
the Guarantors are members of the same consolidated group of companies and are
engaged in related businesses; the Guarantors will derive direct and indirect
economic benefit from the issuance of the Securities; accordingly, the
Guarantors have each duly authorized the execution and delivery of this
Indenture to provide for the Guarantee by each of them with respect to the
Securities as set forth in this Indenture.
All things necessary to make the Securities, when executed by the Note
Issuer and authenticated and delivered hereunder and duly issued by the Note
Issuer, the valid obligations of the Note Issuer, to make the Guarantees of each
of the Guarantors, when executed by the respective Guarantors and endorsed on
the Securities, authenticated and delivered hereunder, the valid obligations of
the respective Guarantors, and to make this Indenture a valid agreement of the
Note Issuer and each of the Guarantors in accordance with its terms, have been
done.
1 EXECUTION
11
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of
such computation; provided, that when two or more principles are so
generally accepted, it shall mean that set of principles consistent with
those in use by the Company;
(4) Unless otherwise specifically set forth herein, all calculations
or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles; and
(5) The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.19(a).
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Related Business; (ii) the Capital Stock of
a Person that becomes a Subsidiary as a result of the acquisition of such
Capital Stock by the Company or another Subsidiary; or (iii) Capital
2 EXECUTION
12
Stock constituting a minority interest in any Person that at such time is a
Subsidiary; provided, however, that any such Subsidiary described in clauses
(ii) or (iii) above is primarily engaged in a Related Business.
"Additional Interest" has the meaning specified in Section 10.19(b).
"Additional Sums" means the interest (compounded quarterly), if any, that
shall accrue on any interest on the Securities in arrears for more than one
quarter at the rate per annum specified in this Indenture for the Securities.
"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; provided, however, that an Affiliate of the
Company shall not be deemed to include the Trust, Fresenius Medical Care Capital
Trust or Fresenius Medical Care Capital Trust II. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of Sections 10.9, 10.12 and 10.13 only, Affiliate shall
also mean any beneficial owner of Capital Stock representing 5% or more of the
total voting power of the Voting Stock (on a fully diluted basis) of the Company
or of rights or warrants to purchase such Capital Stock (whether or not
currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence hereof.
"Affiliate Transaction" has the meaning specified in Section 10.12(a).
"Approved Lender" has the meaning specified under the definition of
"Temporary Cash Investments."
"Asset Disposition" means any sale, lease, transfer or other disposition
(or series of related sales, leases, transfers or dispositions) by the Company
or any Subsidiary, including any disposition by means of a merger, consolidation
or similar transaction (each referred to for the purposes of this definition as
a "disposition"), of (i) any shares of Capital Stock of any Subsidiary (other
than directors qualifying shares or shares required by applicable law to be held
by a Person other than the Company or a Subsidiary), (ii) all or substantially
all the assets of any division or line of business of the Company or any
Subsidiary or (iii) any other assets of the Company or any Subsidiary outside of
the ordinary course of business of the Company or such Subsidiary (other than,
in the case of (i), (ii) and (iii) above, (y) a disposition by a Subsidiary to
the Company or by the Company or a Subsidiary to a Wholly Owned Subsidiary and
(z) for purposes of Section 10.13 only, a disposition that constitutes a
Restricted Payment permitted by Section 10.9).
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities.
3 EXECUTION
13
"Average Life" means, as of the date of determination, with respect to any
Indebtedness or Preferred Stock, the quotient obtained by dividing (i) the sum
of the products of numbers of years from the date of determination to the dates
of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (ii) the sum of all such payments.
"Bank Credit Agreement" means the Credit Agreement, dated as of September
27, 1996, among NMC, certain subsidiaries and affiliates thereof, the lenders
referred to in such Credit Agreement, NationsBank, N.A., as paying agent, and
The Bank of Nova Scotia, The Chase Manhattan Bank, Dresdner Bank AG and
NationsBank, N.A., as managing agents, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection with
such Credit Agreement, in each case as amended, modified, renewed, refunded,
replaced, restated or refinanced from time to time; provided that such
amendment, modification, renewal, refunding, replacement, restatement or
refinancing (i) does not cause the aggregate principal amount of Indebtedness
that may be outstanding under such Credit Agreement to exceed $2,500,000,000,
except to the extent that such additional principal amount of Indebtedness could
be incurred pursuant to Section 10.8(b)(9), and (ii) does not contain, with
respect to any Subsidiary, any encumbrances or restrictions of the type
contained in clauses (a), (b) and (c) of Section 10.10 that are less favorable
to the Holders of Securities than the encumbrances and restrictions with respect
to such Subsidiary contained in such Credit Agreement prior thereto.
"Blockage Notice" has the meaning specified in Section 12.4.
"Board of Directors" means, with respect to the Company or a Subsidiary,
as the case may be, the Board of Directors (or other body performing functions
similar to any of those performed by a Board of Directors including those
performed, in the case of a German corporation, by the Managing Board or the
Supervisory Board) of such person or any committee thereof duly authorized to
act on behalf of such Board (or other body).
"Board Resolution" means, with respect to the Note Issuer or a Guarantor,
a copy of a resolution certified by the Secretary or an Assistant Secretary or a
member of the Managing Board of the Note Issuer or such Guarantor to have been
duly adopted by the Board of Directors, or such committee of the Board of
Directors or officers of the Note Issuer or such Guarantor to which authority to
act on behalf of the Board of Directors has been delegated, and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in New York City, Frankfurt am Main or
Luxembourg are authorized or required by law or executive order to remain closed
or (iii) a day on which the Corporate Trust Office of the Trustee or, with
respect to the Preferred Securities, the Corporate Trust Office of the Preferred
Trustee under the Declaration, is closed for business.
4 EXECUTION
14
"Capital Lease Obligations" means an obligation that is required to be
classified and accounted for as a capital lease for financial reporting purposes
in accordance with GAAP, and the amount of Indebtedness represented by such
obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Change of Control" means any transaction or series of transactions in
which any Person or group (within the meaning of Rule 13d-5 under the Exchange
Act and Section 13(d) and 14(d) of the Exchange Act) other than Fresenius
Aktiengesellschaft and its subsidiaries acquires all or substantially all of the
Company's assets or becomes the direct or indirect "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), by way of merger, consolidation,
other business combination or otherwise, of greater than 50% of the total voting
power (on a fully diluted basis as if all convertible securities had been
converted and all options and warrants had been exercised) entitled to vote in
the election of directors of the Company or the Surviving Person (if other than
the Company).
"Change of Control Triggering Event" means the occurrence of both a Change
of Control and a Rating Decline.
"Commission" means the United States Securities and Exchange Commission.
"Common Securities" has the meaning specified in the first paragraph of
the Recitals to this Indenture.
"Company" means Fresenius Medical Care AG, a stock corporation
(Aktiengesellschaft) organized under the laws of the Federal Republic of
Germany, and its successors and permitted assigns pursuant to Article VIII.
"Company Guarantee" means the guarantee by the Company of distributions on
the Preferred Securities of the Trust for the benefit of the holders of the
Preferred Securities to the extent provided in the Guarantee Agreement, executed
and delivered by the Company and the Preferred Trustee pursuant to the
Declaration, as amended from time to time.
"Consolidated Coverage Ratio" as of any date of determination means the
ratio of (i) the aggregate amount of EBITDA for the Company's most recently
ended four full fiscal quarters for
5 EXECUTION
15
which internal financial statements are available immediately preceding the date
of such determination to (ii) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that (1) if the Company or any Subsidiary has
Incurred any Indebtedness since the beginning of such period that remains
outstanding or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Incurrence of Indebtedness, or both, EBITDA
and Consolidated Interest Expense for such period shall be calculated after
giving effect on a pro forma basis to such Indebtedness as if such Indebtedness
had been Incurred on the first day of such period and the discharge of any other
Indebtedness repaid, repurchased, defeased or otherwise discharged with the
proceeds of such new Indebtedness as if such discharge had occurred on the first
day of such period, (2) if since the beginning of such period the Company or any
Subsidiary shall have made any Asset Disposition, 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 Disposition 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 Company or any
Subsidiary repaid, repurchased, defeased or otherwise discharged with respect to
the Company and its continuing Subsidiaries in connection with such Asset
Disposition for such period (or, if the Capital Stock of any Subsidiary is sold,
the Consolidated Interest Expense for such period directly attributable to the
Indebtedness of such Subsidiary to the extent the Company and its continuing
Subsidiaries are no longer liable for such Indebtedness after such sale), (3) if
since the beginning of such period the Company or any Subsidiary (by merger or
otherwise) shall have made an Investment in any Subsidiary (or any Person which
becomes a Subsidiary) or an acquisition of assets, including any acquisition of
assets occurring in connection with a transaction requiring a calculation to be
made hereunder, which constitutes all or substantially all of an operating unit
of a business, EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the Incurrence of
any Indebtedness) as if such Investment or acquisition occurred on the first day
of such period and (4) if since the beginning of such period any Person (that
subsequently became a Subsidiary or was merged with or into the Company or any
Subsidiary since the beginning of such period) shall have made any Asset
Disposition, any Investment or acquisition of assets that would have required an
adjustment pursuant to clause (2) or (3) above if made by the Company or a
Subsidiary during such period, EBITDA and Consolidated Interest Expense for such
period shall be calculated after giving pro forma effect thereto as if such
Asset Disposition, Investment or acquisition occurred on the first day of such
period. For purposes of this definition, whenever pro forma effect is to be
given to 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 a responsible financial or accounting officer of
the Company. If any Indebtedness bears a floating rate of interest and is being
given pro forma effect, the interest of 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 Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months).
6 EXECUTION
16
"Consolidated Interest Expense" means, for any period, the total interest
expense of the Company and its consolidated Subsidiaries, plus, to the extent
not included in such total interest expense, and to the extent incurred by the
Company or its Subsidiaries, (i) interest expense attributable to capital
leases, (ii) amortization of debt discount and debt issuance cost, (iii)
capitalized interest, (iv) non-cash interest expenses, (v) commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, (vi) net costs associated with Hedging
Obligations (including amortization of fees), (vii) Preferred Stock dividends in
respect of all Preferred Stock held by Persons other than the Company or a
Wholly Owned Subsidiary, (viii) interest incurred in connection with Investments
in discontinued operations, (ix) interest accruing on any Indebtedness of any
other Person to the extent such Indebtedness is Guaranteed by the Company or any
Subsidiary and (x) the cash contributions to any employee stock ownership plan
or similar trust to the extent such contributions are used by such plan or trust
to pay interest or fees to any Person (other than the Company) in connection
with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net income of the
Company and its consolidated Subsidiaries; provided, however, that there shall
not be included in such Consolidated Net Income: (i) any net income of any
Person if such Person is not a Subsidiary, except that (A) subject to the
exclusion contained in clause (iv) below, the Company'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 actually distributed by such Person
during such period to the Company or a Subsidiary as a dividend or other
distribution (subject, in the case of a dividend or other distribution paid to a
Subsidiary, to the limitations contained in clause (iii) below) and (B) the
Company's equity in a net loss of any such Person for such period shall be
included in determining such Consolidated Net Income; (ii) any net income (or
loss) of any Person acquired by the Company or a Subsidiary in a pooling of
interests transaction for any period prior to the date of such acquisition;
(iii) any net income of any Subsidiary that is not a Wholly Owned Subsidiary if
such Subsidiary is subject to contractual, governmental or regulatory
restrictions, directly or indirectly, on the payment of dividends or the making
of distributions by such Subsidiary, directly or indirectly, to the Company,
except that (A) subject to the exclusion contained in clause (iv) below, the
Company's equity in the net income of any such Subsidiary for such period shall
be included in such Consolidated Net Income up to the aggregate amount of cash
actually distributed by such Subsidiary during such period to the Company or
another Subsidiary as a dividend or other distribution (subject, in the case of
a dividend or other distribution paid to another Subsidiary that is not a Wholly
Owned Subsidiary, to the limitation contained in this clause) and (B) the
Company's equity in a net loss of any such Subsidiary for such period shall be
included in determining such Consolidated Net Income; (iv) any gain (but not
loss) realized upon the sale or other disposition of any assets of the Company
or its consolidated Subsidiaries (including pursuant to any sale and leaseback
arrangement) that is not sold or otherwise disposed of in the ordinary course of
business and any gain (but not loss) realized upon the sale or other disposition
of any Capital Stock of any
7 EXECUTION
17
Person; (v) extraordinary gains or losses; and (vi) the cumulative effect of a
change in accounting principles.
"Consolidated Net Worth" means the total of the amounts shown on the
balance sheet of the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, as of the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available prior to the taking of any action for the purpose of which the
determination is being made, as (i) the par or stated value of all outstanding
Capital Stock of the Company plus (ii) paid-in capital or capital surplus
relating to such Capital Stock plus (iii) any retained earnings or earned
surplus less (A) any accumulated deficit and (B) any amounts attributable to
Disqualified Stock.
"Corporate Trust Office" means the principal office of the Trustee in
Hartford, Connecticut.
"corporation" means a corporation, association, partnership, business
trust or other business entity.
"Credit Agreements" means the Bank Credit Agreement and the Other Bank
Agreements; provided, that the aggregate principal amount of Indebtedness that
may be outstanding at any one time under such agreements does not exceed
$2,500,000,000.
"Currency Agreement" means any foreign currency exchange contract,
currency swap agreement or other similar agreement or arrangement designed and
entered into to protect the Company or any Subsidiary against fluctuations in
currency exchange rates.
"Declaration" means the Amended and Restated Declaration of Trust
substantially in the form attached hereto as Exhibit A, as amended from time to
time.
"Default" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities issuable or issued in
whole or in part in the form of one or more Global Securities, the Person
designated as Depository by the Note Issuer (or any successor thereto).
"Deutsche Xxxx" means the currency of the Federal Republic of Germany
that, as at the time of payment, is legal tender for the payment of public and
private debts.
8 EXECUTION
18
"Disqualified Stock" means, with respect to any Person, any Capital Stock
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness or Disqualified Stock or
(iii) is redeemable at the option of the holder thereof, in whole or in part, in
each case on or prior to the first anniversary of the Stated Maturity of the
Securities; provided, however, that any Capital Stock that would not constitute
Disqualified Stock but for provisions thereof giving holders thereof the right
to require such Person to repurchase or redeem such Capital Stock upon the
occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Securities shall not constitute
Disqualified Stock if the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the provisions of Sections 10.13 and 10.15.
"EBITDA" for any period means the sum of Consolidated Net Income, plus
Consolidated Interest Expense plus the following to the extent deducted in
calculating such Consolidated Net Income: (a) all income tax expense of the
Company and its Subsidiaries, (b) depreciation expense and (c) amortization
expense, in each case for such period. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the depreciation and
amortization of, a Subsidiary that is not a Wholly Owned Subsidiary shall be
added to Consolidated Net Income to compute EBITDA only to the extent (and in
the same proportion) that the net income of such Subsidiary was included in
calculating Consolidated Net Income and only if a corresponding amount would be
permitted at the date of determination to be dividended to the Company by such
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Subsidiary or its stockholders.
"Event of Default" has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offer" means the exchange offer contemplated by the Registration
Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement of
the Note Issuer, the Guarantors and the Trust pursuant to the applicable
provisions of the Registration Rights Agreement on an appropriate form under the
Securities Act, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
prospectus contained therein, all exhibits and materials included therewith or
incorporated by reference therein pursuant to the requirements of the Securities
Act or the Exchange Act.
9 EXECUTION
19
"Exchange Preferred Securities" means a series of Preferred Securities of
the Trust to be issued under the Declaration in connection with the offer to
exchange Preferred Securities for a new series of Preferred Securities pursuant
to the Declaration and the Registration Rights Agreement.
"Exchange Security" or "Exchange Securities" means any Security or
Securities authenticated and delivered under this Indenture in connection with
the Exchange Offer, the offer and sale of which has or have been registered
under the Securities Act pursuant to the Registration Rights Agreement.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Issue Date, including those set forth (i) in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board, (iii) in such other
statements by such other entity as approved by a significant segment of the
accounting profession, and (iv) the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of the Securities, issued to the Depository or its
nominee for such series, and registered in the name of such Depository or its
nominee.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed by the United States
of America and which, in either case, are full faith and credit obligations of
the United States of America and are not callable or redeemable at the option of
the issuer thereof and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of such depository receipt; provided,
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such Person (whether
arising by virtue of partnership arrangements, or by agreements to keep-well, to
purchase
10 EXECUTION
20
assets, goods, securities or services, to take-or-pay or to maintain financial
statement conditions or otherwise) or (ii) entered into for the purpose of
assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, however, that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business. The term Guarantee used as a verb has a
corresponding meaning.
"Guarantor Blockage Notice" has the meaning specified in Section 14.4(b).
"Guarantor Payment Blockage Period" has the meaning specified in Section
14.4(b).
"Guarantor Senior Subordinated Payment" has the meaning specified in
Section 14.2.
"Guarantors" means the Company, Fresenius Medical Care Holdings, Inc., a
New York corporation, and Fresenius Medical Care Deutschland GmbH, a German
limited liability company.
"Guaranty" means the Guarantee by a Guarantor of the Note Issuer's
obligations with respect to the Securities.
"Guaranty Agreement" means, in the context of a consolidation, merger or
sale of all or substantially all of the assets of a Guarantor, an agreement by
which the Surviving Person from such a transaction expressly assumes all of the
obligations of such Guarantor under its Guaranty.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means a Person in whose name a Security is registered in the
Securities Register. The Preferred Trustee shall be the initial Holder of the
Securities.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be Incurred by such
Subsidiary at the time it becomes a Subsidiary. The term "Incurrence" when used
as a noun shall have a correlative meaning. The accretion of principal of a
non-interest bearing or other discount security shall be deemed the Incurrence
of Indebtedness.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if any)
in respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable; (ii) all Capital
Lease Obligations of such Person; (iii) all obligations of such Person issued or
assumed as the deferred purchase price of property or services, all conditional
sale obligations of such Person and all
11 EXECUTION
21
obligations of such Person under any title retention agreement (other than (x)
customary reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business, (y) trade debt incurred in the
ordinary course of business and due within six months of the incurrence thereof
and (z) obligations incurred under a pension, retirement or deferred
compensation program or arrangement regulated under the Employee Retirement
Income Security Act of 1974, as amended, or the laws of a foreign government);
(iv) all obligations of such Person for the reimbursement of any obligor on any
letter of credit, bank guaranty, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit and bank
guaranties (A) not made under the Bank Credit Agreement and (B) securing
obligations (other than obligations described in (i) through (iii) above)
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
receipt by such Person of a demand for reimbursement following payment on the
letter of credit); (v) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Disqualified Stock or,
with respect to any subsidiary of such Person, any Preferred Stock (but
excluding, in each case, any accrued dividends); (vi) all obligations of the
type referred to in clauses (i) through (v) of other Persons and all dividends
of other Persons for the payment of which, in either case, such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including by means of any Guarantee; (vii) all obligations of the
type referred to in clauses (i) through (vi) of other Persons secured by any
Lien on any property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; and (viii) to the extent not otherwise included in this definition,
Hedging Obligations of such Person. The amount of Indebtedness of any Person at
any date shall be the outstanding balance at such date of all unconditional
obligations as described above and the maximum liability, upon the occurrence of
the contingency giving rise to the obligation, of any contingent obligations at
such date.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively, and shall
include the terms of the Securities established as contemplated by Section 3.1.
"Initial Security" or "Initial Securities" means any Security or
Securities authenticated and delivered under this Indenture, and not registered
under the Securities Act.
"Interest Payment Date" means February 1, May 1, August 1 and November 1
of each year, commencing May 1, 1998.
12 EXECUTION
22
"Interest Rate" means the rate of interest specified or determined as
specified as being the rate of interest payable on the Securities.
"Interest Rate Agreement" means any interest rate swap agreement, interest
rate cap agreement or other financial agreement or arrangement designed and
entered into to protect the Company or any Subsidiary against fluctuations in
interest rates.
"Investment" in any Person means any direct or indirect advance, loan
(other than advances to customers in the ordinary course of business that are
recorded as accounts receivable on the balance sheet of such Person) or other
extensions of credit (including by way of Guarantee or similar arrangement) or
capital contribution to (by means of any transfer of cash or other property to
others or any payment for property or services for the account or use of
others), or any purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such Person.
"Investment Company Event" means the receipt by the Company of an Opinion
of Counsel, rendered by a law firm having a nationally recognized tax and
securities practice, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), the Trust is or will be considered an
"investment company" that is required to be registered under the 1940 Act, which
Change in 1940 Act Law becomes effective on or after the date of original
issuance of the Preferred Securities of the Trust.
"Investment Grade" means a rating of BBB- or higher by S&P and Baa3 or
higher by Moody's or the equivalent of such ratings by S&P or Moody's and the
equivalent in respect of Rating Categories of any Rating Agencies substituted
for S&P or Moody's.
"Issue Date" means the date on which the Securities are originally issued.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Liquidated Damages" means amounts payable to the holders of Preferred
Securities as "Liquidated Damages" as defined in and pursuant to the
Registration Rights Agreement.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"1940 Act" means the Investment Company Act of 1940, as amended.
13 EXECUTION
23
"NMC" means National Medical Care, Inc., a Delaware corporation.
"Net Available Cash" from an Asset Disposition means cash payments
received therefrom (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
non-cash form) in each case net of (i) all legal, title and recording tax
expenses, commissions and other fees and expenses incurred, and all Federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP, as a consequence of such Asset Disposition, (ii) all payments made
on any Indebtedness which is secured by any assets subject to such Asset
Disposition, in accordance with the terms of any Lien upon or other security
agreement of any kind with respect to such assets, or which must by its terms,
or in order to obtain a necessary consent to such Asset Disposition, or by
applicable law be, repaid out of the proceeds from such Asset Disposition, (iii)
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or joint ventures as a result of such Asset Disposition
and (iv) the deduction of appropriate amounts provided by the seller as a
reserve, in accordance with GAAP, against any liabilities associated with the
property or other assets disposed in such Asset Disposition and retained by the
Company or any Subsidiary after such Asset Disposition.
"Net Cash Proceeds" with respect to any issuance or sale of Capital Stock,
means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees actually incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"9% Notes" means the 9% Senior Subordinated Notes issued pursuant to that
certain Indenture dated as of November 27, 1996, by and between the Company,
Fleet National Bank (as predecessor to State Street Bank and Trust Company), as
trustee, and the Subsidiary Guarantors named therein, as supplemented and in
effect as of the date hereof, as it may be further amended, modified or
otherwise supplemented from time to time.
"Note Issuer" means the Person named as the "Note Issuer" in the first
paragraph of this Indenture until a successor issuer shall have become such
pursuant to Article VIII, and thereafter "Note Issuer" shall mean such successor
issuer.
"Note Issuer Request" and "Note Issuer Order" mean, respectively, the
written request or order signed in the name of the Note Issuer by any two
members of the Managing Board (if a German corporation) or of the Board of
Directors (or any other two officers of the Note Issuer thereunto duly
authorized) and delivered to the Trustee.
14 EXECUTION
24
"Officers' Certificate" means a certificate signed by (a) the Chairman and
Chief Executive Officer, President or Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary, or
(b) any two members of the Managing Board (if a German corporation) or of the
Board of Directors, of the Company, the Note Issuer or a Guarantor, as the case
may be, and delivered to the appropriate Trustee.
"Opinion of Counsel" or "opinion of counsel" means, as to the Company, the
Note Issuer or a Guarantor, a written opinion of counsel, who may be counsel for
the Company, the Note Issuer or such Guarantor, as the case may be, but, other
than in connection with the issuance of the Securities, not an employee of any
thereof, and who shall be reasonably acceptable to the Trustee.
"Other Bank Agreements" means any credit agreement or other agreement for
loans, letters of credit, bank guaranties or other financial accommodations (and
any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith) entered into by the Company or any Subsidiary
with any bank; provided that the aggregate principal amount of Indebtedness that
may be outstanding thereunder does not exceed $500,000,000, except to the extent
that such additional principal amount of Indebtedness could be incurred pursuant
to Section 10.8(b)(9).
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent in trust for the Holders of such Securities (other
than the Note Issuer or any Guarantor) in trust or set aside and
segregated in trust by the Note Issuer or a Guarantor (if the Note
Issuer or a Guarantor shall act as its own Paying Agent) for the
Holders of such Securities; provided, that if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been
paid pursuant to Section 3.6, unless proof satisfactory to the
Trustee is presented that any such Securities are held by Holders in
whose hands such Securities are valid, binding and legal obligations
of the Note Issuer; and
(iv) Securities which have been defeased pursuant to Section 4.3
hereof.
15 EXECUTION
25
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Note Issuer or any other obligor upon the Securities or any Affiliate of
the Note Issuer or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Note Issuer or any other obligor upon the Securities or
any Affiliate of the Note Issuer or such other obligor. Upon the written request
of the Trustee, the Note Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Note Issuer to be owned or held by or for the account of the Note Issuer, or
any other obligor on the Securities or any Affiliate of the Note Issuer or such
obligor, and, subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Securities not listed therein
are Outstanding for the purpose of any such determination.
"Payment Blockage Period" has the meaning specified in Section 12.4(b).
"Paying Agent" means the Trustee or any Person authorized by the Note
Issuer to pay the principal of or interest on any Securities on behalf of the
Note Issuer.
"Permitted Investment" means an Investment by the Company or any
Subsidiary in (i) a Person that will, upon the making of such Investment, be or
become a Subsidiary; provided, however, that the primary business of such
Subsidiary is a Related Business; (ii) a Person if as a result of such
Investment such other Person is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or a
Subsidiary; provided, however, that such Person's primary business is a Related
Business; (iii) Temporary Cash Investments; (iv) any demand deposit account with
an Approved Lender; (v) receivables owing to the Company or any 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 Company or
any such Subsidiary deems reasonable under the circumstances; (vi) payroll,
travel and similar advances to cover matters that are expected at the time of
such advances ultimately to be treated as expenses for accounting purposes and
that are made in the ordinary course of business; (vii) loans or advances to
employees made in the ordinary course of business consistent with past practices
of the Company or such Subsidiary; (viii) stock, obligations or securities
received in settlement of debts created in the ordinary course of business and
owing to the Company or any Subsidiary or in satisfaction of judgments; (ix) any
Person to the extent such Investment represents the non-cash portion of the
consideration received for an Asset Disposition as permitted pursuant to Section
10.13; and (x) any Affiliate (the primary business of which is a Related
Business) that is not a Subsidiary (other than Fresenius Aktiengesellschaft),
16 EXECUTION
26
provided, that the aggregate of all such Investments outstanding at any one time
under this clause (x) shall not exceed $125,000,000.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency, instrumentality or political subdivision thereof, or any other
entity.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" has the meaning specified in the first paragraph of
the Recitals to this Indenture.
"Preferred Stock", as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Preferred Trustee" means State Street Bank and Trust Company, a
Massachusetts chartered trust company, solely in its capacity as Preferred
Trustee of the Trust and not in its individual capacity, or its successor in
interest in such capacity, or any successor Preferred Trustee appointed as
provided in the Declaration.
"principal" of a Security means the principal of the Security plus the
premium, if any, payable on the Security which is due or overdue or is to become
due at the relevant time.
"Proceeding" has the meaning specified in Section 12.2.
"Rating Agencies" means (i) S&P and (ii) Moody's or (iii) if S&P or
Moody's or both shall not make rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Moody's or both,
as the case may be.
"Rating Category" means (i) with respect to S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories); (ii)
with respect to Moody's, any of the following categories: Ba, B, Caa, Ca, C and
D (or equivalent successor categories); and (iii) the equivalent of any such
category of S&P or Moody's used by another Rating Agency. In determining whether
the rating of the Securities has decreased by one or more gradations, gradations
within Rating Categories (+ and - for S&P, 1, 2, and 3 for Moody's; or the
equivalent
17 EXECUTION
27
gradations for another Rating Agency) shall be taken into account (e.g., with
respect to S&P, a decline in a rating from BB+ to BB, as well as from BB- to B+,
will constitute a decrease of one gradation).
"Rating Date" means the date which is 90 days prior to the earlier of (i)
a Change of Control and (ii) public notice of the occurrence of a Change of
Control or of the intention by the Company or any Person to effect a Change of
Control.
"Rating Decline" means the occurrence on or within 90 days after the date
of the first public notice of the occurrence of a Change of Control or of the
intention by the Company to effect a Change of Control (which period shall be
extended so long as the rating of the Securities is under publicly announced
consideration for possible downgrade by any of the Rating Agencies) of: (a) in
the event the Securities are rated by either Moody's or S&P on the Rating Date
as Investment Grade, a decrease in the rating of the Securities by both Rating
Agencies to a rating that is below Investment Grade, or (b) in the event the
Securities are rated below Investment Grade by both Rating Agencies on the
Rating Date, a decrease in the rating of the Securities by either Rating Agency
by one or more gradations (including gradations within Rating Categories as well
as between Rating Categories).
"Receivables Financings" means (i) the accounts receivable financing
facility of NMC contemplated by the Receivables Purchase Agreement dated as of
August 28, 1997 by and between NMC, as Seller, and NMC Funding Corporation, as
Purchaser and the Transfer and Administration Agreement dated as of August 28,
1997 between Enterprise Funding Corporation, as Company, NMC Funding
Corporation, as Transferor, NMC, as Collection Agent, and NationsBank, N.A., as
Agent and Bank Investor, as each such agreement may be amended or supplemented
from time to time, and (ii) any financing transaction or series of financing
transactions that have been or may be entered into by the Company or a
Subsidiary pursuant to which the Company or a Subsidiary may sell, convey or
otherwise transfer to a Subsidiary or Affiliate, or any other Person, or may
grant a security interest in, any receivables or interests therein secured by
the merchandise or services financed thereby (whether such receivables are then
existing or arising in the future) of the Company or such Subsidiary, as the
case may be, and any assets related thereto, including without limitation, all
security interests in merchandise or services financed thereby, the proceeds of
such receivables, and other assets which are customarily sold or in respect of
which security interests are customarily granted in connection with
securitization transactions involving such assets.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
18 EXECUTION
28
"Refinance" means, in respect of any Indebtedness, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such indebtedness. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness that Refinances any
Indebtedness of the Company or any Subsidiary existing on the Issue Date or
Incurred in compliance with the Indenture including Indebtedness that Refinances
Refinancing Indebtedness; provided, however, that (i) such Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being Refinanced, (ii) such Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being Refinanced and (iii)
such Refinancing Indebtedness has an aggregate principal amount (or if Incurred
with original issue discount, an aggregate issue price) that is equal to or less
than the aggregate principal amount (or if Incurred with original issue
discount, the aggregate accredit value) then outstanding or committed (plus fees
and expenses, including any premium and defeasance costs) under the Indebtedness
being Refinanced; provided further, however, that Refinancing Indebtedness shall
not include (x) Indebtedness of a Subsidiary that Refinances Indebtedness of the
Company or (y) Indebtedness of the Company or a Subsidiary (other than NMC or a
subsidiary of NMC) that Refinances Indebtedness of another Subsidiary.
"Registration Rights Agreement" means the Registration Rights Agreement
dated February 13, 1998 by and among the Company, the Note Issuer, the
Guarantors, the Trust and Credit Suisse First Boston Aktiengesellschaft,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx International, Bear, Xxxxxxx International Limited,
Chase Securities Inc., Deutsche Bank AG, Dresdner Bank AG London Branch,
NationsBank Europe Limited and Scotia Capital Markets (USA) Inc., as such
agreement may be amended, modified or supplemented from time to time, relating
to an exchange offer and registration rights for the Preferred Securities, the
Company Guarantee, the Securities and the Guaranties.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date which is the fifteenth day immediately preceding such
Interest Payment Date (whether or not a Business Day).
"Related Business" means any business related, ancillary or complementary
to the businesses of the Company and its Subsidiaries on the Issue Date.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee assigned by the Trustee from time to time to administer
its corporate trust matters.
"Restricted Payment" with respect to any Person means (i) the declaration
or payment of any dividends or any other distributions of any sort in respect of
its Capital Stock (including any payment in connection with any merger or
consolidation involving such Person) or similar payment to the direct or
indirect holders of its Capital Stock (other than dividends or distributions
payable
19 EXECUTION
29
solely in its Capital Stock (other than Disqualified Stock) and dividends or
distributions payable solely to the Company or a Subsidiary, and other than pro
rata dividends or other distributions made by a Subsidiary that is not a Wholly
Owned Subsidiary to minority stockholders (or owners of an equivalent interest
in the case of a Subsidiary that is an entity other than a corporation)), (ii)
the purchase, redemption or other acquisition or retirement for value of any
Capital Stock of the Company held by any Person or of any Capital Stock of a
Subsidiary held by any Affiliate of the Company (other than a Subsidiary),
including the exercise of any option to exchange any Capital Stock (other than
into Capital Stock of the Company that is not Disqualified Stock), (iii) the
purchase, repurchase, redemption, defeasance or other acquisition or retirement
for value, prior to scheduled maturity, scheduled repayment or scheduled sinking
fund payment of any Subordinated Obligations (other than the purchase,
repurchase or other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal installment or
final maturity, in each case due within one year of the date of acquisition) or
(iv) the making of any Investment in any Person (other than a Permitted
Investment).
"Secured Indebtedness" means any Indebtedness of the Company secured by a
Lien.
"Securities Act" means the Securities Act of 1933 or any successor statute
thereto, in each case as amended from time to time.
"Securities" or "Security" means (a) any Initial Securities or Initial
Security and (b) any Exchange Security or Exchange Securities.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means, with respect to the Note Issuer or a
Guarantor, as the case may be, (i) Indebtedness of such Person, whether
outstanding on the Issue Date or thereafter incurred and (ii) accrued and unpaid
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such person, whether or not the
claim for such interest is allowed as a claim after such filing) in respect of
(A) any Indebtedness of such Person under the Bank Credit Agreement, (B)
Indebtedness of such Person for money borrowed and (C) indebtedness evidenced by
notes, debentures, bonds or other similar instruments for the payment of which
such Person is responsible or liable unless, in the instrument creating or
evidencing the same or pursuant to which the same is outstanding, it is provided
that such obligations are subordinate in right of payment to the Securities;
provided, however, that Senior Indebtedness shall not include (1) any obligation
of such Person to any subsidiary of such person, (2) any liability for Federal,
state, local or other taxes owed or owing by such person, (3) any accounts
payable or other liability to trade creditors arising in the ordinary course of
business (including guarantees thereof or instruments evidencing such
liabilities), (4) any Indebtedness of such Person (and any accrued and unpaid
interest in respect thereof) which is subordinate or junior
20 EXECUTION
30
in any respect to any other Indebtedness or other obligation of such Person or
(5) that portion of any Indebtedness which at the time of incurrence is incurred
in violation of the Indenture.
"Senior Subordinated Indebtedness" means the 9% Notes, the USD Securities,
the Securities and any other Indebtedness of the Company that specifically
provides that such Indebtedness is to rank pari passu with the Company's
obligations with respect to the Securities in right of payment and is not
subordinated by its terms in right of payment to any Indebtedness or other
obligation of the Company or the Note Issuer that is not Senior Indebtedness.
"Senior Subordinated Payment" has the meaning specified in Section 12.2.
"Shelf Registration Statement" means a shelf registration statement of the
Note Issuer, the Guarantors and the Trust pursuant to the provisions of the
Registration Rights Agreement on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein, all exhibits and materials included therewith or incorporated by
reference therein pursuant to the requirements of the Securities Act or the
Exchange Act.
"S&P" means Standard & Poor's Corporation and its successors.
"Specified Senior Indebtedness" means, with respect to the Company, the
Note Issuer or a Guarantor, as the case may be, (i) any Indebtedness of such
Person under the Bank Credit Agreement, and (ii) after all Indebtedness
specified in clause (i) above is no longer outstanding, any other Senior
Indebtedness of such Person permitted under the Indenture the outstanding
principal amount of which is more than $25,000,000 at the time of determination
and that has been designated by such Person as "Specified Senior Indebtedness."
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the final payment of principal of
such security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligation" means any Indebtedness of the Note Issuer or the
Company (whether outstanding on the Issue Date or thereafter Incurred) that is
subordinate or junior in right of payment to the Securities pursuant to a
written agreement to that effect.
21 EXECUTION
31
"Subsidiary" means a corporation (as defined herein) of which more than
50% of the total voting power of shares of Capital Stock or other interests
(including partnership interests) entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by the
Company or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
"Surviving Person" means, with respect to any Person involved in any
merger, consolidation or other business combination or the sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
such Person's assets, the Person formed by or surviving such transaction or the
Person to which such disposition is made.
"Tax Event" means that the Company shall have obtained of an Opinion of
Counsel of nationally recognized independent tax counsel to the effect that, as
a result of (a) any amendment to or change (including any announced prospective
change) in the laws (or any regulations thereunder) of the United States,
Germany or the jurisdiction of formation of the Note Issuer or any political
subdivision or taxing authority thereof or therein or (b) any amendment to or
change in an interpretation or application of such laws or regulations by any
legislative body, court, governmental agency or regulatory authority (including
the enactment of any legislation and the publication of any judicial decision or
regulatory determination on or after the date of issuance of the Preferred
Securities), which amendment or change is effective or which interpretation or
pronouncement is announced on or after the date of issuance of the Preferred
Securities, there is more than an insubstantial risk that (i) the Trust is or
will be subject to United States Federal or German income tax, or income tax in
the jurisdiction of formation of the Note Issuer, in each case with respect to
interest received or accrued on the Securities, (ii) interest payable to the
Trust on the Securities is not or will not be deductible for United States
Federal or German income tax purposes or for purposes of any income tax imposed
by the jurisdiction of formation of the Note Issuer or (iii) the Trust is or
will be subject to more than a de minimis amount of other taxes, duties,
assessments or other governmental charges of whatever nature imposed by the
United States, Germany, or the jurisdiction of formation of the Note Issuer, or
any other taxing authority.
"Taxes" has the meaning specified in Section 10.19.
"Temporary Cash Investments" means any of the following: (a) securities
issued or directly and fully guaranteed or insured by (i) the United States of
America or any agency or instrumentality thereof (provided, that the full faith
and credit of the United States of America is pledged in support thereof) and
(ii) the governments of Germany and the United Kingdom, having in each case
maturities of not more than twelve months from the date of acquisition, (b) time
deposits and certificates of deposit, eurodollar time deposits and eurodollar
certificates of deposit of (i) any lender under the Bank Credit Agreement, or
(ii) any United States, German, United Kingdom or Swiss commercial bank of
recognized standing (y) having capital and surplus in excess of $500,000,000 and
(z) whose short-term commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Xxxxx'x is at least P-1 or the equivalent thereof
(any such bank being an
22 EXECUTION
32
"Approved Lender"), in each case with maturities of not more than 270 days from
the date of acquisition, (c) commercial paper and variable or fixed rate notes
issued by an Approved Lender (or by the parent company thereof) and maturing
within six months of the date of acquisition, (d) repurchase agreements entered
into by a Person with a bank or trust company (including any of the lenders
under the Bank Credit Agreement) or recognized securities dealer having capital
and surplus in excess of $500,000,000 for (i) direct obligations issued by or
fully guaranteed by the United States of America, (ii) time deposits or
certificates of deposit described under subsection (b) above, or (iii)
commercial paper or other notes described under subjection (c) above, in which,
in each such case, such bank, trust company or dealer shall have a perfected
first priority security interest (subject to no other Liens) and having, on the
date of purchase thereof, a fair market value of at least 100% of the amount of
the repurchase obligations, (e) obligations of any State of the United States or
any political subdivision thereof, the interest with respect to which is exempt
from federal income taxation under Section 103 of the U.S. Internal Revenue
Code, having a long term rating of at least AA- or Aa-3 by S&P or Moody's,
respectively, and maturing within three years from the date of acquisition
thereof, (f) Investments in municipal auction preferred stock (i) rated AAA (or
the equivalent thereof) or better by S&P or Aaa (or the equivalent thereof) or
better by Moody's and (ii) with dividends that reset at least once every 365
days and (g) Investments, classified in accordance with GAAP as current assets,
in money market investment programs (i) registered under the Investment Company
Act of 1940, as amended, or (ii) operated by an investment company in Germany or
the United Kingdom and subject to regulations under the laws of such
jurisdiction, in each case which are administered by reputable financial
institutions having capital of at least $100,000,000 and the portfolios of which
are limited to Investments of the character described in clauses (a), (b), (c),
(e) and (f) above.
"Trust" has the meaning specified in the first paragraph of the Recitals
to this Indenture.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended and
as in force at the date as of which this Indenture was executed, except as
provided in Section 9.5; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as
so amended.
"Trust Securities" has the meaning specified in the first paragraph of the
Recitals to this Indenture.
"USD Indenture" means the Senior Subordinated Indenture dated as of
February 19, 1998 by and among the Note Issuer, State Street Bank and Trust
Company as Trustee, the Company and
23 EXECUTION
33
the other Guarantors with respect to the issuance of 7 7/8% Senior Subordinated
Notes due February 1, 2008 in the aggregate principal amount of $450,450,000, as
it may be amended, supplemented or otherwise modified from time to time.
"USD Securities" means the 7 7/8% Senior Subordinated Notes due February
1, 2008 issued pursuant to the USD Indenture.
"Vice President" when used with respect to the Company, the Note Issuer, a
Guarantor or the Trustee means any duly appointed vice president, whether or not
designated by a number or a word or words added before or after the title "vice
president."
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
"Wholly Owned Subsidiary" means a Subsidiary all the Capital Stock of
which (other than (i) directors' qualifying shares and shares held by other
Persons to the extent such shares are required by applicable law to be held by a
Person other than the Company or a Subsidiary and (ii) shares of Preferred Stock
of Fresenius Medical Care Holdings, Inc.) is owned by the Company or by one or
more Wholly Owned Subsidiaries, or by the Company and one or more Wholly Owned
Subsidiaries.
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company, the Note Issuer or any
other Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company, the Note Issuer or such Guarantor shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
precedent or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.16) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
24 EXECUTION
34
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he 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 complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Note Issuer, the Company
or another Guarantor may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Note Issuer, the Company or another Guarantor stating that the information with
respect to such factual matters is in the possession of the Note Issuer, the
Company or another Guarantor, unless the individual attorneys actively engaged
in the transaction which is the subject matter of such opinion in the office of
such counsel have actual knowledge that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly
25 EXECUTION
35
provided, such action shall become effective when such instrument or instruments
is or are delivered to the Trustee, and, where it is hereby expressly required,
to the Note Issuer or the Company, as applicable. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Note Issuer or the
Company, as applicable, if made in the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient and in
accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities
Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Note Issuer,
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
(f) The Note Issuer may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to take any action under
this Indenture by vote or consent. Except as otherwise provided herein, such
record date shall be the later of 30 days prior to the first solicitation of
such consent or vote or the date of the most recent list of Securityholders
furnished to the Trustee pursuant to Section 7.1 prior to such solicitation. If
a record date is fixed, those Persons who were Securityholders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date, provided, however, that unless such vote or consent is obtained
from the Holders (or their duly designated proxies) of the requisite principal
amount of Outstanding Securities prior to the date which is the 90th day after
such record date, any such vote or consent previously given shall automatically
and without further action by any Holder be cancelled and of no further effect.
26 EXECUTION
36
SECTION 1.5. Notices, etc., to Trustee, Note Issuer and Guarantors.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Note Issuer or any Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust office,
or
(2) the Note Issuer or any Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose (except as otherwise provided in
Sections 5.1 and 5.2 hereof) hereunder if in writing and mailed, first
class, postage prepaid, in the case of the Note Issuer to it at the
address of the Note Issuer's principal office specified in the first
paragraph of this Indenture or at any other address previously furnished
in writing to the Trustee by the Note Issuer and, in the case of any
Guarantor, to it at its principal office at Xxxxxxxxxx 00, 00000
Xxxxxxxxx, Xxxxxxx or at any other address previously furnished in writing
to the Trustee by such Guarantor; provided, however, that all notices sent
to the Note Issuer and any Guarantor pursuant to this Indenture shall be
sent in copy to O'Melveny & Xxxxx LLP (Citicorp Center, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, XX 00000-0000, Attn: Xx. Xxxxxx Xxxxxx) and shall be
effective five Business Days after such mailing.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
27 EXECUTION
37
Additionally, at any time that the Securities are listed on the Luxembourg
Stock Exchange all notices regarding the Securities including, without
limitation, notices pursuant to Sections 3.7, 6.2, 6.10(f), 6.14, 10.13(b),
10.15(b) and 11.4 hereof, shall be published in the Luxemburger Wort or in such
other publication as required by the rules of the Luxembourg Stock Exchange. Any
such notice will become effective for all purposes on the date of its
publication. There may (provided that, in the case of Securities listed on the
Luxembourg Stock Exchange, the rules of the Luxembourg Stock Exchange so
permit), be substituted for such publication in such newspaper the delivery of
the relevant notice to the applicable clearing system for communication by it to
the Holders. Any such notice shall be deemed to have been given to the Holders
on the seventh day after the day on which the said notice was given to all
applicable clearing systems. The Note Issuer shall be responsible for compliance
with this paragraph and shall provide directions to the Trustee in connection
therewith.
SECTION 1.7. Conflict with Trust Indenture Act.
Upon consummation of the Exchange Offer, the Trust Indenture Act shall
apply to this Indenture and if any provision hereof limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required or deemed
under the Trust Indenture Act to be part of and govern this Indenture, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Note Issuer, the
Company or any other Guarantor shall bind its respective successors and assigns,
whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
28 EXECUTION
38
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than (i) the parties hereto, (ii) any Paying Agent and
their successors and assigns, (iii) the holders of Senior Indebtedness (subject
to Articles XII and XIV hereof), and (iv) the Holders of the Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTIES ENDORSED THEREON SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day (in each case with the same force and
effect as if made on the Interest Payment Date or Redemption Date or at the
Stated Maturity)).
29 EXECUTION
39
SECTION 1.14. Duplicate 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.
SECTION 1.15. Submission to Jurisdiction.
The Company hereby appoints CT Corporation System through its office at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as its authorized agent (the "Authorized
Agent") upon which process may be served in any legal action or proceeding
against it with respect to its obligations under this Indenture or the
Securities instituted in any federal or state court in the Borough of Manhattan,
The City of New York, by the Trustee or the Holder of any Securities and agrees
that service of process upon such authorized agent, together with written notice
of said service to the Company by the person serving the same, addressed as
provided in Section 1.5, shall be deemed in every respect effective service of
process upon the Company in any such legal action or proceeding, and the Company
hereby irrevocably submits to the non-exclusive jurisdiction of any such court
in respect of any such legal action or proceeding. Such appointment shall be
irrevocable until this Indenture has been satisfied and discharged in accordance
with Article 4 hereof. Notwithstanding the foregoing, the Company reserves the
right to appoint another Person located or with an office in the Borough of
Manhattan, The City of New York, selected in its discretion, as a successor
Authorized Agent, and upon acceptance of such appointment by such a successor
the appointment of the prior Authorized Agent shall terminate. If for any reason
CT Corporation System ceases to be able to act as the Authorized Agent or to
have an address in the Borough of Manhattan, The City of New York, the Company
will appoint a successor Authorized Agent in accordance with the preceding
sentence. The Company further agrees to take any and all action, including the
filing of any and all documents and instruments as may be necessary to continue
such designation and appointment of such agent in full force and effect until
this Indenture has been satisfied and discharged in accordance with Article 4
hereof. Service of process upon the Authorized Agent addressed to it at the
address set forth above, as such address may be changed within the Borough of
Manhattan, The City of New York by notice given by the Authorized Agent to the
Trustees, together with written notice of such service mailed or delivered to
the Company shall be deemed, in every respect, effective service of process on
the Company.
30 EXECUTION
40
SECTION 1.16. Substitution of Currency.
All payments made by the Note Issuer under this Indenture shall be made in
Deutsche Marks regardless of any law, rule, regulation or statutes, whether now
or hereafter in existence or in effect in any jurisdiction, which affects or
purports to affect such payment obligations; provided, that if the Federal
Republic of Germany adopts the Euro, the regulations of the European Commission
relating to the Euro shall apply to the Securities and this Indenture. The
circumstance and consequences described in this Section 1.15 entitle neither the
Note Issuer nor any Holder of the Securities to early redemption, rescission,
notice, repudiation, adjustment or renegotiation of the terms and conditions of
such Securities or this Indenture or to raise other defenses or to request any
compensation claim, nor will they affect any of the other obligations of the
Note Issuer under the Securities and this Indenture.
ARTICLE II.
SECURITY AND GUARANTY FORMS
SECTION 2.1. Forms Generally.
The Securities, the Guaranties to be endorsed thereon and the Trustee's
certificate of authentication shall be in substantially the forms set forth in
this Article, or in such other form or forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax
laws or the rules of any securities exchange or as may, consistently herewith,
be determined by the officers executing such Securities or Guaranties, as the
case may be, as evidenced by their execution of the Securities or Guaranties, as
the case may be. If the form of Securities or Guaranties is established by
action taken pursuant to a Board Resolution, such Board Resolution to be
delivered to the Trustee at or prior to the delivery of the Note Issuer Order
contemplated by Section 3.3 with respect to the authentication and delivery of
such Securities.
The Trustee's certificates of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities and Guaranties to be endorsed thereon shall be
printed, lithographed or engraved or produced by any combination of these
methods, if required by any securities exchange on which the Securities may be
listed, on a steel engraved border or steel engraved borders or may be produced
in any other manner permitted by the rules of any securities exchange on which
the Securities may be listed, all as determined by the officers executing such
31 EXECUTION
41
Securities or Guaranties, as the case may be, as evidenced by their execution of
such Securities or Guaranties, as the case may be.
SECTION 2.2. Form of Face of Security.
[IF THE SECURITY IS AN INITIAL SECURITY, INSERT - THIS SECURITY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE SECOND SENTENCE
HEREOF. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) ("QIB") OR (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT RESELL
OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE NOTE ISSUER) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERM
"OFFSHORE TRANSACTION" AND "UNITED STATES"HAVE THE MEANINGS GIVEN TO THEM
BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT IN AGGREGATE PRINCIPAL
AMOUNTS OF DM 100,000 OR MORE EXCEPT IN OFFSHORE TRANSACTIONS IN RELIANCE
ON REGULATION S UNDER THE SECURITIES ACT]
32 EXECUTION
42
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT--THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"DEPOSITORY") OR A NOMINEE OF THE DEPOSITORY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX) TO FMC TRUST
FINANCE S.A.R.L LUXEMBOURG OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.]
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG
7 3/8% SENIOR SUBORDINATED NOTES DUE FEBRUARY 1, 2008
GUARANTEED AS TO PAYMENT OF PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST BY FRESENIUS MEDICAL CARE AG
AND CERTAIN OF ITS SUBSIDIARIES
NO. DM
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG, a private limited company
(Societe a responsabilite limitee) organized and existing under the laws
of Luxembourg (hereinafter called the "Note Issuer", which term includes
any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to , or registered assigns, the
principal sum of Deutsche Marks on February 1, 2008. The Note Issuer
further promises to pay interest on said principal sum quarterly in
arrears on February 1, May 1, August 1 and November 1 of each year,
commencing May 1, 1998, (each such date, an "Interest Payment Date") at
the rate of 7 3/8% per annum, (plus Additional Amounts and Additional
Sums, if any) until the principal hereof is paid or duly provided for or
made available for payment and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable
under applicable law) on any interest which is in arrears more than a
quarter at the rate of 7 3/8% per annum, compounded quarterly. The amount
of interest payable for any period shall be computed on
33 EXECUTION
43
the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of
the number of days elapsed in a 360-day year of twelve 30-day months. In
the event that any date on which interest is payable on this Security is
not a Business Day, then a payment of the interest payable on such date
will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any day other
than (i) a Saturday or Sunday, (ii) a day on which banking institutions in
New York City, Frankfurt am Main or Luxembourg are authorized or required
by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Preferred
Securities, the principal office of the Preferred Trustee under the
Declaration hereinafter referred to for Fresenius Medical Care Capital
Trust III, is closed for business. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided
in the Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities, as defined in the Indenture) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the date which is the fifteenth day immediately
preceding such Interest Payment Date (whether or not a Business Day). Any
interest not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders not less than 10 days
prior to such Special Record Date, or be paid in any other lawful manner
not inconsistent with the requirements of any securities exchange on which
the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in said Indenture.
[IF THE SECURITY IS AN INITIAL SECURITY, INSERT - Under the terms
and conditions of, and in the circumstances set forth in, the Registration
Rights Agreement, additional payments in the form of Liquidated Damages
may be payable in respect of this Security.]
Payments on this Security issued as a Global Security shall be made
in immediately available funds to the Depository. In the event that this
Security is issued in certificated form, the principal of (and premium, if
any) and interest (including Additional Sums and Additional Amounts, if
any) on the Security will be payable at the office maintained by the Note
Issuer under the Indenture; provided, that unless the Security is held by
the Trust or any permissible successor entity as provided under the
Declaration in the event of a merger, consolidation or amalgamation of the
Trust, payment of interest may be made at the option
34 EXECUTION
44
of the Note Issuer by check mailed to the address of the person entitled
thereto, as such address shall appear in the Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness, and this Security is
issued subject to the provisions of the Indenture with respect thereto.
Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such actions as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Note Issuer has caused this instrument to be
duly executed.
Dated: February 19, 1998
FMC TRUST FINANCE S.a.r.l.
LUXEMBOURG
By: __________________________
Name:
Title:
35 EXECUTION
45
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Note Issuer (herein called the "Securities"), issued under a Senior
Subordinated Indenture, dated as of February 19, 1998 (herein called the
"Indenture"), between the Note Issuer, as Issuer, and State Street Bank
and Trust Company, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), Fresenius Medical
Care AG (herein called the "Company"), as the Company and as a Guarantor,
Fresenius Medical Care Holdings, Inc. and Fresenius Medical Care
Deutschland GmbH, as Guarantors to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder
of the Trustee, the Note Issuer, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
All terms used in this Security that are defined in the Indenture
and in the Amended and Restated Declaration of Trust, dated as of February
19, 1998, (the "Declaration"), for Fresenius Medical Care Capital Trust
III, shall have the meanings assigned to them in the Indenture or the
Declaration, as the case may be.
If a Tax Event or an Investment Company Event in respect of the
Trust shall occur and be continuing, the Company shall cause the Trustees
(as defined in the Declaration) to dissolve the Trust and cause Securities
to be distributed to the holders of the Trust Securities in dissolution of
the Trust or, in the event of a Tax Event only, may cause the Securities
to be redeemed, in each case, subject to and in accordance with the
provisions of the Declaration, within 90 days following the occurrence of
such Tax Event or Investment Company Event. The Securities may be
redeemed, at the option of the Note Issuer, subject to the provisions of
Article XI of the Indenture, at any time as a whole but not in part, at
100% of the principal amount thereof, plus accrued and unpaid interest (if
any) to the date of redemption (subject to the right of Holders of record
on the relevant Regular Record Date to receive interest due on the
relevant Interest Payment Date), in the event the Note Issuer has become
or would become obligated to pay, on the next date on which any amount
would be payable with respect to the Securities, any Additional Amounts as
a result of a change in or an amendment to the laws (including any
regulations promulgated thereunder) of the United States of America,
Germany, the United Kingdom, Luxembourg, or any other Member State of the
European Union (or any political subdivision or taxing authority thereof
or therein), or any change in or amendment to any official position
regarding the application or interpretation of such laws or regulations,
which change or amendment is announced or becomes effective on or after
the date of the issuance of the Securities.
The Securities do not have the benefit of any sinking fund
obligations.
36 EXECUTION
46
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the obligations of the Note Issuer under the Indenture
and this Security are Guaranteed on a senior subordinated basis pursuant
to Guaranties endorsed hereon. The Indenture provides that a Guarantor
shall be released from its Guaranty upon compliance with certain
conditions.
The Indenture contains provisions for satisfaction, discharge and
defeasance at any time of the entire indebtedness of this Security upon
compliance by the Note Issuer with certain conditions set forth in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the Note Issuer, the Guarantors and the Trustee at any time to enter into
a supplemental indenture or indentures for the purpose of modifying in any
manner the rights and obligations of the Note Issuer, the Guarantors and
of the Holders of the Securities, with the consent of the Holders of not
less than a majority in principal amount of the Outstanding Securities to
be affected by such supplemental indenture. The Indenture also contains
provisions permitting Holders of specified percentages in aggregate
outstanding principal amount of the Outstanding Securities affected
thereby, on behalf of the Holders of all the Securities, to waive
compliance by the Note Issuer or the Guarantors with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the Securities at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the
Holders of not less than 25% in aggregate outstanding principal amount of
the Outstanding Securities may declare the principal amount of and
interest (including Additional Sums and Additional Amounts, if any) on all
the Securities to be due and payable immediately, by a notice in writing
to the Note Issuer and the Guarantors (and to the Trustee if given by
Holders), provided, that if the Trustee or such Holders fail to do so, the
Preferred Trustee shall have such right by a notice in writing to the Note
Issuer and the Trustee; and upon any such declaration such specified
amount of and the accrued interest (including Additional Sums and
Additional Amounts, if any) on all the Securities shall become immediately
due and payable, provided, that the payment of principal and interest
(including Additional Sums and Additional Amounts, if any) on such
Securities shall remain subordinated to the extent provided in Article XII
of the Indenture.
37 EXECUTION
47
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Note Issuer, which is absolute and unconditional, to pay the principal of
(and premium, if any) and interest on this Security at the times, place
and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Note Issuer maintained under
Section 10.2 of the Indenture duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Note Issuer and
the Securities Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Note Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Note Issuer, the Guarantors, the Trustee and any agent of
the Note Issuer, the Guarantors or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof, for all
purposes (subject to certain limitations set forth in the Indenture),
whether or not this Security be overdue, and neither the Note Issuer, the
Guarantors, the Trustee nor any such agent shall be affected by notice to
the contrary.
The Securities are issuable only in registered form without coupons
in denominations of DM 1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, the Securities are exchangeable for a like aggregate principal
amount of Securities of a different authorized denomination, as requested
by the Holder surrendering the same.
The Note Issuer and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security agree that for German and United
States Federal, state and local tax purposes and for purposes of any tax
imposed by the jurisdiction of formation of the Note Issuer or any
political subdivision or taxing authority thereof or therein, it is
intended that this Security constitute indebtedness.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
38 EXECUTION
48
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF.
SECTION 2.4. Additional Provisions Required in Global Security and Initial
Security.
(a) Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
"This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the
Depository. This Security is exchangeable for Securities registered in the
name of a Person other than the Depository or its nominee only in the
limited circumstances described in the Indenture and no transfer of this
Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository) may be
registered except in limited circumstances."
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx) to FMC TRUST
FINANCE S.a.r.l. LUXEMBOURG or its agent for registration of transfer,
exchange or payment, and any Security issued is registered in the name of
Cede & Co. or such other name as requested by an authorized representative
of The Depository Trust Company and any payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein."
(b) Any Initial Security issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
IN THE SECOND SENTENCE HEREOF. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) ("QIB") OR (B) IT IS ACQUIRING THIS SECURITY IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
39 EXECUTION
49
SECURITY EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE NOTE ISSUER) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERM
"OFFSHORE TRANSACTION" AND "UNITED STATES"HAVE THE MEANINGS GIVEN TO THEM
BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT IN AGGREGATE PRINCIPAL AMOUNT
OF DM 100,000 OR MORE, EXCEPT IN OFFSHORE TRANSACTIONS IN RELIANCE ON
REGULATION S UNDER THE SECURITIES ACT."
SECTION 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities with the Guaranties endorsed thereon
referred to in the within mentioned Indenture.
----------------------------------
as Trustee
By: ------------------------------
Authorized officer
SECTION 2.6. Form of Guaranty.
GUARANTY
For value received, each of the Guarantors hereby jointly and
severally unconditionally Guarantees, on a senior subordinated basis, to
each Holder of a Security authenticated and delivered by the Trustee, and
to the Trustee on behalf of such Holder, the
40 EXECUTION
50
due and punctual payment of the principal of (and premium, if any) and
interest (including Additional Sums and Additional Amounts, if any) on
such Security when and as the same shall become due and payable, whether
at the Stated Maturity, by acceleration, call for redemption, purchase or
otherwise, in accordance with the terms of such Security and of this
Indenture. In case of the failure of the Note Issuer punctually to make
any such payment, each of the Guarantors hereby jointly and severally
agrees to cause such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by
acceleration, call for redemption, purchase or otherwise, and as if such
payment were made by the Note Issuer. The Guarantee extends to the Note
Issuer's repurchase obligations arising from a Change of Control or an
Asset Disposition pursuant to the Indenture.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of such Security or this Indenture,
the absence of any action to enforce the same, any exchange, release or
non-perfection of any Lien on any collateral for, or any release or
amendment or waiver of any term of any other Guarantee of, or any consent
to departure from any requirement of any other Guarantee of all or any of
the Securities, the election by the Trustee or any of the Holders in any
proceeding under Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code") of the application of Section 1111(b)(2) of the
Bankruptcy Code, or equivalent provision under applicable law, any
borrowing or grant of a security interest by the Note Issuer, as
debtor-in-possession, under Section 364 of the Bankruptcy Code, or
equivalent provision under applicable law, the disallowance, under Section
502 of the Bankruptcy Code, or other similar applicable law, of all or any
portion of the claims of the Trustee or any of the Holders for payment of
any of the Securities, any waiver or consent by the Holder of such
Security or by the Trustee with respect to any provisions thereof or of
the Indenture, the obtaining of any judgment against the Note Issuer or
any action to enforce the same or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any
of the Holders protect, secure, perfect or insure any security interest in
or other Lien on any property subject thereto or exhaust any right or take
any action against the Note Issuer or any other Person or any collateral,
filing of claims with a court in the event of insolvency or bankruptcy of
the Note Issuer, any right to require a proceeding first against the Note
Issuer, protest or notice with respect to such Security or the
Indebtedness evidenced thereby and all demands whatsoever, and covenants
that this Guaranty will not be discharged in respect of such Security
except by complete performance of the obligations contained in such
Security and in this Guaranty. Each of the Guarantors hereby agrees that,
in the event of a default in payment of principal (or premium, if any) or
interest (including Additional Sums and Additional Amounts, if any) on
such Security, whether at their Stated Maturity, by acceleration, call for
redemption, purchase or otherwise, legal proceedings may be instituted by
the Trustee on behalf of, or
41 EXECUTION
51
by, the Holder of such Security, subject to the terms and conditions set
forth in the Indenture, directly against each of the Guarantors to enforce
this Guaranty without first proceeding against the Note Issuer. Each
Guarantor agrees that, to the extent permitted by law, if, after the
occurrence and during the continuance of an Event of Default, the Trustee
or any of the Holders are prevented by applicable law from exercising
their respective rights to accelerate the maturity of the Securities, to
collect interest on the Securities, or to enforce or exercise any other
right or remedy with respect to the Securities, or the Trustee or the
Holders are prevented from taking any action to realize on any collateral,
such Guarantor agrees to pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been
due and payable had such rights and remedies been permitted to be
exercised by the Trustee or any of the Holders.
The indebtedness of each Guarantor evidenced by this Guaranty is, to
the extent provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all Senior Indebtedness of such
Guarantor, and this Guaranty is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Security, by accepting
the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as
may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
No reference herein to the Indenture and no provision of this
Guaranty or of the Indenture shall alter or impair the Guaranty of any
Guarantor, which is absolute and unconditional, of the due and punctual
payment of the principal (and premium, if any) and interest (including
Additional Sums and Additional Amounts, if any) on the Security upon which
this Guaranty is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder of
this Security against the Note Issuer in respect of any amounts paid by
such Guarantor on account of this Security pursuant to the provisions of
its Guaranty or the Indenture; provided, however, that such Guarantor
shall not be entitled to enforce or to receive any payments arising out
of, or based upon, such right of subrogation until the principal of (and
premium, if any) and interest on this Security and all other Securities
issued under the Indenture shall have been paid in full.
This Guaranty shall remain in full force and effect and continue to
be effective should any petition be filed by or against the Note Issuer
for liquidation or reorganization, or equivalent proceeding under
applicable law, should the Note Issuer become insolvent or make an
assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of the Note Issuer's assets, or
the equivalent of any of the foregoing under applicable law, and shall, to
the fullest extent permitted by applicable law, continue to be effective
or be reinstated, as the case may be, if at any time payment and
42 EXECUTION
52
performance of the Securities is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities whether as a voidable preference, fraudulent
transfer, or as otherwise provided under similar laws affecting the rights
of creditors generally or under applicable laws of the jurisdiction of
formation of the Note Issuer, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the
fullest extent permitted by applicable law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under this Guaranty.
The Guarantors or any particular Guarantor shall be released from
this Guaranty upon the terms and subject to certain conditions provided in
the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance
with the terms of the Indenture or the execution of a Guaranty Agreement,
each Person that becomes, or assumes the obligations of, a Guarantor after
the date of the Indenture will be deemed to have executed and delivered
this Guaranty for the benefit of the Holder of this Security with the same
effect as if such Guarantor was named below.
All terms used in this Guaranty which are defined in the Indenture
referred to in the Security upon which this Guaranty is endorsed shall
have the meanings assigned to them in such Indenture.
This Guaranty shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guaranty
is endorsed shall have been executed by the Trustee under the Indenture by
manual signature.
Each Guaranty (other than the Company's Guaranty) will be limited in
amount to an amount not to exceed the maximum amount that can be
guaranteed by the applicable Guarantor without rendering the Guaranty, as
it relates to such Guarantor, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws affecting the
rights of creditors generally or under applicable law of Germany.
In the case of Fresenius Medical Care Deutschland GmbH ("FMCD"), the
following provisions apply:
A Profit and Loss Pooling Agreement (the "Agreement")
(Ergebnisabfuhrungsvertrag) between the Company and FMCD dated as of
August 21,
43 EXECUTION
53
1996 was entered into the commercial register with effect from January 1,
1996. FMCD, having a stated capital of DM 80 million, had a capital
reserve account of DM 168,302,162 (the "January 1, 1996 Amount") in its
balance sheet as of January 1, 1996. Assuming that the January 1, 1996
Amount has not decreased by losses in the business of FMCD since January
1, 1996, at least such amount exceeds the Company's assets protecting its
share capital within the meaning of Section 30 of the German GmbH Law.
Since January 1, 1996, the January 1, 1996 Amount has not been decreased
by the actions of the Company (the sole shareholder of FMCD), e.g. no
distributions against the January 1, 1996 Amount have been made.
Based thereon, the guaranty obligations of FMCD hereunder and under
FMCD's guaranty of the 9% Notes, the USD Securities and any other Senior
Subordinated Indebtedness, if any, of FMCD to which Section 30 of the
German GmbH law may apply are limited to the amount of the capital
reserves of FMCD as of the date hereof less its obligations as a guarantor
from time to time under the Bank Credit Agreement (the "Minimum Guaranty
Amount"). If, in the case of a default under the Indenture, the capital
reserves are higher than such Minimum Guaranty Amount, such higher amount
(the "Higher Guaranty Amount") shall serve as limitation to the
obligations of FMCD, as Guarantor. In case FMCD, as Guarantor, has to sell
off assets to fulfill its obligations under the Indenture, after such
guaranty obligations have been drawn, and if the proceeds from the sale of
such assets exceed the amount of their book value, such excess amounts
shall be paid to the Trustee for the benefit of the Holders, subject to
the provisions of Article XIV hereof, in addition to the Minimum Guaranty
Amount or the Higher Guaranty Amount, respectively. For the determination
of the applicable book value, the book value of assets which were included
into the balance sheet per January 1, 1996 applies, and for such assets
which were not yet included but added to the business of FMCD since that
date, the book value on the day of the sale of such assets applies. Should
Section 30 of the German GmbH law however require a lower Minimum Guaranty
Amount or a lower Higher Guaranty Amount, then such lower amounts required
by law shall be applicable.
FMCD undertakes not to decrease its capital reserves, neither by
capital increase from such reserve accounts nor by other kinds of
contributions to its shareholders or affiliates without the prior written
approval of the Holders of a majority in principal amount of the
Outstanding Securities.
FMCD undertakes to maintain a profit and loss pooling agreement with
the Company during the term of the Indenture, in particular, to extend the
term of such agreement to the term of the Indenture and not to terminate,
rescind or amend such agreement without prior notice to the Trustee and
the consent of the Holders of a majority in principal amount of the
Outstanding Securities thereto. In case of a termination of such profit
and loss pooling agreement, FMCD will grant, upon the request of the
Holders of a majority in principal amount of the Outstanding Securities,
collateral to minimize the legal
44 EXECUTION
54
and financial disadvantages caused by the termination of such agreement,
as far as legally available under German law. FMCD undertakes to give
notice immediately to the Trustee if it intends to give notice of
termination to such agreement or to agree to the termination of such
agreement, or if it becomes aware that the Company intends to terminate
such agreement. During the term of the profit and loss pooling agreement,
any and all allocations of profit to the Company and any and all cash
distributions to the Company as a consequence thereof upon the terms and
conditions of the profit and loss pooling agreement are permitted and
unrestricted, subject to the terms of Section 30 of the German GmbH law as
described above.
Reference is made to Article XIII and Article XIV of the Indenture
for further provisions with respect to this Guaranty.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICT OF LAWS.
IN WITNESS WHEREOF, each of the Guarantors has caused this Guaranty to be
duly executed.
FRESENIUS MEDICAL CARE AG, as Guarantor
By:____________________________________
Member of the Managing Board
By:____________________________________
Member of the Managing Board
FRESENIUS MEDICAL CARE
HOLDINGS, INC., as Guarantor
Authorized Officer
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, as Guarantor
45 EXECUTION
55
Member of the Managing Board
Member of the Managing Board
ARTICLE III.
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of the Securities which may be
authenticated and delivered under this Indenture is limited to DM 300,300,000
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 3.4,
3.5, 3.6, 9.6 or 11.6. The Note Issuer may issue Exchange Securities from time
to time pursuant to an Exchange Offer pursuant to a Board Resolution included in
an Officers' Certificate delivered to the Trustee, in authorized denominations
in exchange for a like principal amount of Initial Securities. Upon any such
exchange the Initial Securities shall be cancelled in accordance with Section
3.9 and shall no longer be deemed Outstanding for any purpose. In no event shall
the aggregate principal amount of Initial Securities and Exchange Securities
Outstanding exceed DM 300,300,000, except in accordance with Section 3.6.
The Securities shall be known and designated as the "7 3/8% Senior
Subordinated Notes due February 1, 2008" of the Note Issuer. Their Stated
Maturity shall be February 1, 2008 at which time the Securities will become due
and payable together with any accrued and unpaid interest thereon (including
Additional Sums and Additional Amounts, if any) and they shall bear interest at
the rate of 7 3/8% per annum, from the Issue Date, payable quarterly in arrears
on each Interest Payment Date, to the Persons in whose name the Securities are
registered at the close of business on the Regular Record Date.
Interest on the Securities will accrue from the most recent date on which
interest has been paid or, if no interest has been paid, from the Issue Date.
Interest in arrears for more than one quarter (and interest thereon) will accrue
interest (compounded quarterly) at the same rate.
Payments on the Securities issued as a Global Security shall be made in
immediately available funds to the Depository. In the event that Securities are
issued in certificated form, the principal of (and premium, if any) and interest
(including Additional Sums and Additional Amounts, if any) on the Securities
shall be payable at the office maintained by the Note Issuer pursuant to Section
10.2; provided, that unless the Securities are held by the Trust or any
46 EXECUTION
56
permissible successor entity as provided under the Declaration in the event of a
merger, consolidation or amalgamation of the Trust, payment of interest may be
made at the option of the Note Issuer by check mailed to the address of the
persons entitled thereto, as such address shall appear in the Register.
The Securities shall be redeemable as provided in Article XI.
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company and the Note Issuer as provided in Article XII.
The Securities shall be Guaranteed by the Guarantors as provided in
Article XIII.
The Guaranties shall be subordinated in right of payment to Senior
Indebtedness of the Guarantors as provided in Article XIV.
The Securities shall be subject to defeasance at the option of the Note
Issuer as provided in Section 4.3.
Unless the context otherwise requires, the Initial Securities and the
Exchange Securities shall constitute one series for all purposes under this
Indenture.
SECTION 3.2. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of DM 1,000 and any integral multiple thereof. The
Initial Securities may only be issued and transferred in principal amounts of DM
100,000 or more, except in offshore transactions in reliance on Regulation S
under the Securities Act.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Note Issuer by any
officer or officers of the Note Issuer thereunder duly authorized. The signature
of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Note Issuer shall bind the Note
Issuer, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Note Issuer may deliver Securities executed by the Note Issuer
and having endorsed thereon the Guaranties executed pursuant to Section 13.2 by
the Guarantors to the Trustee for authentication,
47 EXECUTION
57
together with a Note Issuer Order for the authentication and delivery of such
Securities with the Guaranties of the Guarantors endorsed thereon; and the
Trustee in accordance with such Note Issuer Order shall authenticate and deliver
such Securities with the Guaranties of the Guarantors endorsed thereon as in
this Indenture provided and not otherwise.
At any time and from time to time after the execution and delivery of this
Indenture and after the effectiveness of a registration statement under the
Securities Act with respect thereto, the Note Issuer may deliver Exchange
Securities executed by the Note Issuer to the Trustee for authentication,
together with a Note Issuer Order for the authentication and delivery of such
Exchange Securities and a like principal amount of Initial Securities for
cancellation in accordance with Section 3.9, and the Trustee in accordance with
the Note Issuer Order shall authenticate and deliver such Securities. In
authenticating such Exchange Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon, an Opinion of Counsel substantially to the
effect that: (i) the Exchange Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered in exchange for the Initial Securities in accordance with the
Indenture and the Exchange Offer, will be entitled to the benefits of the
Indenture and will be legally valid and binding obligations of the Note Issuer,
enforceable in accordance with their terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and (ii) when the Exchange Securities are executed and authenticated
in accordance with the provisions of the Indenture and delivered in exchange for
the Initial Securities in accordance with the Indenture and the Exchange Offer,
the Guaranties endorsed thereon will be the legally valid and binding
obligations of the Guarantors, enforceable in accordance with their terms
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability, relating to or affecting
creditors' rights and to general equity principles.
If terms have been so established, the Trustee shall not be required to
authenticate such Exchange Securities if the issue of such Exchange Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Exchange Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security or Guaranty endorsed thereon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by the manual signature of one
of its authorized officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security and the Guaranty
endorsed thereon have been duly authenticated and delivered hereunder.
48 EXECUTION
58
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Note Issuer may
execute, and upon Note Issuer Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and having
endorsed thereon the Guaranties substantially of the tenor of the definitive
Guaranties in lieu of which they are issued duly executed by the Guarantors and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities and Guaranties, as the case may be,
may determine, as evidenced by their execution of such Securities and
Guaranties, as the case may be.
If temporary Securities are issued, the Note Issuer will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Note Issuer designated for that purpose without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Securities,
the Note Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of authorized
denominations having the same Issue Date and Stated Maturity, having the same
terms and like tenor, and having endorsed thereon the Guaranties executed by the
Guarantors. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 3.5. Registration, Registration of Transfer and Exchange.
The Note Issuer shall cause to be kept at the Corporate Trust Office of
the Trustee, a register in which, subject to such reasonable regulations as it
may prescribe, the Note Issuer shall provide for the registration of Securities
and of transfers of Securities. Such register is herein sometimes referred to as
the "Securities Register." The Trustee is hereby appointed "Securities
Registrar" for the purpose of registering Securities and transfers of the
Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Note Issuer designated for that purpose the Note Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denominations, of a like aggregate principal amount, of the same
Issue Date and Stated Maturity, having the same terms and like tenor, and having
endorsed thereon the Guaranties executed by the Guarantors; PROVIDED, that
Initial Securities may only be transferred in principal amounts of DM 100,000 or
more, except in offshore transactions in reliance on Regulation S under the
Securities Act.
49 EXECUTION
59
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations, of a like aggregate principal
amount, of the same Issue Date and Stated Maturity and having the same terms and
like tenor, and having endorsed thereon the Guaranties executed by the
Guarantors, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Note Issuer
shall execute, the Guarantors shall execute the Guaranties endorsed on and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities and the Guaranties endorsed thereon issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Note Issuer and the respective Guarantors, evidencing the
same debt and Guaranties, and entitled to the same benefits under this
Indenture, as the Securities and Guaranties surrendered upon such registration
of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Note Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Note Issuer and the Securities Registrar, duly executed by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities, but the Note Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities.
Notwithstanding any of the foregoing, any Global Security shall be
exchangeable pursuant to this Section 3.5 for Securities registered in the names
of Persons other than the Depositary for such Global Security or its nominee
only if (i) such Depositary notifies the Note Issuer that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a clearing agency registered under the Exchange Act, as
amended, (ii) the Note Issuer executes and delivers to the Trustee a Note Issuer
Order that such Global Security shall be so exchangeable or (iii) there shall
have occurred and be continuing an Event of Default with respect to the
Securities and the Holders of a majority in aggregate principal amount of this
outstanding securities shall have so requested. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, a Global Security
may not be transferred except as a whole by the Depositary with respect to such
Global Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
50 EXECUTION
60
Neither the Note Issuer nor the Trustee shall be required to, pursuant to
the provisions of this Section, (a) issue, register the transfer of or exchange
any Security during a period beginning at the opening of business 15 days before
any selection for redemption of Securities pursuant to Article XI and ending at
the close of business on the earliest date on which the relevant notice of
redemption is deemed to have been given to all Holders of Securities to be so
redeemed, and (b) register the transfer of or exchange any Security so selected
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, any portion thereof not to be redeemed.
All Initial Securities initially issued hereunder shall, upon issuance,
bear the legend specified in Section 2.4 to be applied to such a Security and
such required legend shall not be removed unless the Note Issuer shall have
delivered to the Trustee (and the Securities Registrar, if other than the
Trustee) a Note Issuer Order which states that the Security may be issued
without such legend thereon. If such legend required for an Initial Security has
been removed from a Security as provided above, no other Security issued in
exchange for all or any part of such Security shall bear such legend, unless the
Note Issuer has reasonable cause to believe that such other Security is a
"restricted security" within the meaning of Rule 144 of the Securities Act and
instructs the Trustee to cause a legend to appear thereon.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Note Issuer or the Trustee to
save each of them harmless, the Note Issuer shall execute, the Guarantors shall
execute the Guaranties endorsed on and the Trustee shall authenticate and
deliver in exchange therefor, a new Security of like tenor and principal amount,
having the same Issue Date and Stated Maturity and bearing the same Interest
Rate as such mutilated Security, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Note Issuer and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by each of them
to save each of them, each Guarantor and any agent of either of them harmless,
then, in the absence of notice to the Note Issuer or the Trustee that such
Security has been acquired by a bona fide purchaser, the Note Issuer shall
execute and upon its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, having endorsed thereon the Guaranties executed by the
Guarantors, having the same Issue Date and Stated Maturity and bearing the same
Interest Rate as such destroyed, lost or stolen Security, and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Note Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
51 EXECUTION
61
Upon the issuance of any new Security under this Section, the Note Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, and the Guaranties endorsed thereon, shall
constitute an original additional contractual obligation of the Note Issuer and
the respective Guarantors, whether or not the destroyed, lost or stolen
Security, and the Guaranties endorsed thereon, shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, except that
interest payable on the Stated Maturity of a Security shall be paid to the
Person to whom principal is paid.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest"), shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Note Issuer, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Note Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Note Issuer shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Note Issuer shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
52 EXECUTION
62
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Note Issuer of such Special
Record Date and, in the name and at the expense of the Note Issuer, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class, postage prepaid,
to each Holder at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense
of the Note Issuer, cause a similar notice to be published at least once
in a newspaper, customarily published in the English language on each
Business Day and of general circulation in the Borough of Manhattan, The
City of New York, but such publication shall not be a condition precedent
to the establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Note Issuer may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, upon such
notice as may be required by such exchange (or by the Trustee if the
Securities are not listed), if, after notice given by the Note Issuer to
the Trustee of the proposed payment pursuant to this Clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Under the Registration Rights Agreement, in the event that (i) an Exchange
Offer Registration Statement or a Shelf Registration Statement is not filed on
or prior to the applicable deadline set forth in the Registration Rights
Agreement, (ii) an Exchange Offer Registration Statement or a Shelf Registration
Statement is not declared effective on or prior to the applicable deadline set
forth in the Registration Rights Agreement, or (iii) the Exchange Offer has not
been "Consummated" (as defined in the Registration Rights Agreement) or upon the
occurrence of certain other conditions, then additional payments in the form of
Liquidated Damages shall accrue on the principal amount of the Securities at the
rate per DM 1,000 liquidation amount of Preferred Securities set forth in the
Registration Rights Agreement. Upon filing or effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement, Consummation
of the Exchange Offer or upon cessation of any such other conditions, as the
case may be, the obligation to pay such Liquidated Damages with respect to the
event in question shall cease.
53 EXECUTION
63
SECTION 3.8. Persons Deemed Owners.
Prior to the presentment of a Security for registration of transfer, the
Note Issuer, the Guarantors, the Trustee and any agent of the Note Issuer, the
Guarantors or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal (and premium, if any) of and (subject to Section 3.7) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Note Issuer, the Guarantors, the Trustee nor any agent
of the Note Issuer, the Guarantors or the Trustee shall be affected by notice to
the contrary.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee, and any such Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Note Issuer
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Note Issuer may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be destroyed by the Trustee and the Trustee shall deliver to the Note Issuer a
certificate of such destruction.
SECTION 3.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months and, for any partial period, on the basis of the
number of days elapsed in a 360-day year of twelve 30-day months.
SECTION 3.11. Right of Set-Off.
Notwithstanding anything to the contrary in this Indenture, the Note
Issuer shall have the right to set-off any payment it or the Company is
otherwise required to make hereunder in respect of any Security to the extent
the Note Issuer or the Company has theretofore made, or is concurrently on the
date of such payment making, a payment under the Company Guarantee relating to
such Security or under Section 5.8 of this Indenture.
54 EXECUTION
64
SECTION 3.12. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Note Issuer and, by
its acceptance of a Security or a beneficial interest therein, the Holder of,
and any Person that acquires a beneficial interest in, such Security agree that
for German and United States Federal, state and local tax purposes and for
purposes of any tax imposed by the jurisdiction of formation of the Note Issuer
(or any political subdivision or taxing authority thereof or therein) it is
intended that such Security constitute indebtedness.
SECTION 3.13. CUSIP Numbers.
The Note Issuer in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to (i) any
surviving rights of registration of transfer, substitution and exchange of
Securities, (ii) rights hereunder of Holders to receive payments of principal of
(and premium, if any) and interest (including Additional Sums and Additional
Amounts, if any) on the Securities and other rights, duties and obligations of
the Holders as beneficiaries hereof with respect to the amounts, if any,
deposited with the Trustee pursuant to this Article IV and (iii) the rights and
obligations of the Trustee hereunder), and the Trustee, on demand of and at the
expense of the Note Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either:
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6 and (ii) Securities
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Note Issuer and thereafter
55 EXECUTION
65
repaid to the Note Issuer or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year of the date of deposit,
and the Note Issuer or a Guarantor, in the case of Clause (B) (i) or (B)
(ii) above, has deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the currency or
currencies in which the Securities are payable sufficient (without
reinvestment) to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest (including Additional Sums
and Additional Amounts, if any) to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated
Maturity;
(2) the Note Issuer or a Guarantor has paid or caused to be paid all
other sums payable hereunder by the Note Issuer and the Guarantors; and
(3) the Note Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities will
not recognize gain or loss for German and United States Federal income tax
purposes and for purposes of any income tax imposed by the jurisdiction of
formation of the Note Issuer as a result of the application of this
Section 4.1 and will be subject to German and United States Federal income
tax and any income tax imposed by the jurisdiction of formation of the
Note Issuer, if any, on the same amount as would have been the case if
such satisfaction and discharge of the Indenture had not occurred; and
(4) the application of this Section 4.1 shall not cause the Trustee
to have a conflicting interest as defined in Section 6.8 hereof and for
purposes of the Trust Indenture Act with respect to any securities of the
Note Issuer; and
(5) the funds deposited with the Trustee pursuant to Clause (1)(B)
above shall not be deemed an "investment company" as defined in the 1940
Act, or such trust shall be qualified under the 1940 Act or exempt from
regulation thereunder; and
(6) the Note Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided in this subsection 4.1 for relating to the satisfaction
and discharge of this Indenture have been complied with.
56 EXECUTION
66
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article IV, the obligations of the Note Issuer to the Trustee under Section
6.7 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3, shall survive.
SECTION 4.2. Application of Trust Money; Reinstatement.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 or money or Government
Obligations deposited with the Trustee pursuant to Section 4.3, or received by
the Trustee in respect of Government Obligations deposited with the Trustee
pursuant to Section 4.3, shall be held in trust and applied by the Trustee, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Note Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest (including
Additional Sums and Additional Amounts, if any) for the payment of which such
money or Government Obligations have been deposited with or received by the
Trustee; provided, however, such moneys need not be segregated from other funds
held in trust except to the extent required by law. Money so held in trust shall
not be subject to the provisions of Article XII or Article XIV.
The Note Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 4.3 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 Securities.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 4.1 or 4.3 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Note Issuer and the Guarantors
under this Indenture, the Securities and the Guaranties shall be revived and
reinstated as though no deposit had occurred pursuant to this Article IV until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 4.1 or 4.3; provided, however, that if the Note Issuer
or any Guarantor makes any payment of principal of (and premium, if any) or
interest (including Additional Sums and Additional Amounts, if any) on any
Security following the reinstatement of its obligations, the Note Issuer or such
Guarantor shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or the Paying Agent.
57 EXECUTION
67
SECTION 4.3. Satisfaction, Discharge and Defeasance of Securities.
The Note Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities, the Guarantors shall each be
released from their respective Guaranties, and the Trustee, at the expense of
the Note Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of such indebtedness and Guaranties, when
(1) with respect to all Outstanding Securities,
(A) the Note Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for such
purpose an amount sufficient to pay and discharge the entire indebtedness
on all Outstanding Securities for principal (and premium, if any) and
interest (including Additional Sums and Additional Amounts, if any) to the
Stated Maturity or any Redemption Date as contemplated by the penultimate
paragraph of this Section 4.3, as the case may be; or
(B) the Note Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as obligations in trust for such
purpose an amount of Government Obligations as will, in the written
opinion of independent public accountants delivered to the Trustee,
together with predetermined and certain income to accrue thereon, without
consideration of any reinvestment thereof, be sufficient to pay and
discharge when due the entire indebtedness on all Outstanding Securities
for principal (and premium, if any) and interest (including Additional
Sums and Additional Amounts, if any) to the Stated Maturity or any
Redemption Date as contemplated by the penultimate paragraph of this
Section 4.3, as the case may be; and
(2) the Note Issuer has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities; and
(3) the Note Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Securities will
not recognize gain or loss for German and United States Federal income tax
purposes or for the purposes of any income tax imposed by the jurisdiction
of formation of the Note Issuer as a result of the application of this
Section 4.3 and will be subject to German and United States Federal income
tax and any income tax imposed by the jurisdiction of formation of the
Note Issuer, if any, on the same amount, in the same manner as would have
been the case if such satisfaction, discharge and defeasance of the
Securities had not occurred; and
(4) the Note Issuer has delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of the deposit
pursuant to Clause (1) above; and
58 EXECUTION
68
(5) the application of this Section 4.3 shall not cause the Trustee
to have a conflicting interest as defined in Section 6.8 hereof and for
purposes of the Trust Indenture Act with respect to any securities of the
Note Issuer; and
(6) at the time of the deposit pursuant to Clause (1) above: (A) no
default in the payment of all or a portion of principal of (or premium, if
any) or interest on any Senior Indebtedness of the Note Issuer or any
Guarantor shall have occurred and be continuing, and no event of default
with respect to any such Senior Indebtedness shall have occurred and be
continuing and shall have resulted in such Senior Indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise have become due and payable and (B) no other event of default
with respect to any Senior Indebtedness of the Note Issuer or any
Guarantor shall have occurred and be continuing permitting (after notice
or the lapse of time, or both) the holders of such Senior Indebtedness (or
a representative on behalf of the holders thereof) to declare such Senior
Indebtedness due and payable prior to the date on which it would otherwise
have become due and payable, or, in the case of either Clause (A) or
Clause (B) above, each such default or event of default shall have been
cured or waived or shall have ceased to exist; and
(7) no Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit; and
(8) the funds deposited with the Trustee pursuant to Clause (1)
above shall not be deemed an "investment company" as defined in the 1940
Act or such trust shall be qualified under the 1940 Act or exempt from
regulation thereunder; and
(9) the Note Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of the entire indebtedness on all Outstanding Securities have been
complied with.
Any deposits with the Trustee referred to in Section 4.3(1) above shall be
irrevocable and shall be made under the terms of an escrow trust agreement in
form and substance reasonably satisfactory to the Trustee. If any Outstanding
Securities are to be redeemed prior to their Stated Maturity, whether pursuant
to any optional or mandatory redemption provisions, the applicable escrow trust
agreement shall provide therefor and the Note Issuer shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Note Issuer.
If the Securities are not to become due and payable at their Stated Maturity or
upon call for redemption within one year of the date of deposit, then the Note
Issuer shall give, not later than the date of such deposit, notice of such
deposit to the Holders.
59 EXECUTION
69
Upon the satisfaction of the conditions set forth in this Section 4.3
with respect to all the Outstanding Securities, the terms and conditions of the
Securities and Guaranties, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Note Issuer and the Guarantors; provided, that the Note
Issuer and the Guarantors shall not be discharged from any payment obligations
in respect of Securities which are deemed not to be Outstanding under clause
(iii) of the definition thereof if such obligations continue to be valid
obligations of the Note Issuer and the Guarantors under applicable law.
ARTICLE V.
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security,
including any Additional Sums and Additional Amounts in respect thereof,
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(3) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Company or the Note Issuer in this
Indenture (other than a covenant or warranty a default in the performance
of which or the breach of which is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the
Note Issuer by the Trustee or to the Note Issuer and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities
a written notice specifying such default or breach and requiring it to be
remedied; or
(4) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any Subsidiary (or the
payment of which is guaranteed by the Company or any Subsidiary), whether
such Indebtedness or Guarantee now exists or is incurred after the Issue
Date, if (A) such default results in the acceleration of such Indebtedness
prior to its express maturity or shall constitute a default in the payment
of such Indebtedness and (B) the principal amount of any such Indebtedness
that has been
60 EXECUTION
70
accelerated or not paid at maturity, when added to the aggregate principal
amount of all other such Indebtedness, at such time, that has been
accelerated or not paid at maturity, exceeds $25,000,000; or
(5) the dissolution, winding up or termination of the Trust, except
in connection with the distribution of Securities to the holders of
Preferred Securities in dissolution of the Trust and in connection with
such mergers, consolidations or amalgamations as are permitted by the
Declaration; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or the Note Issuer a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or the Note Issuer under any applicable German or United
States Federal or State or other applicable foreign bankruptcy,
insolvency, reorganization or other similar law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or the Note Issuer or of any substantial part of its property
or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the institution by the Company or the Note Issuer of proceedings
to be adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable German or United States Federal or State or
other applicable foreign bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or the Note Issuer or of any
substantial part of its property, or the making by it of an assignment for
the benefit for creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due and its
willingness to be adjudicated a bankrupt, or the taking of corporate
action by the Company or the Note Issuer in furtherance of any such
action; or
(8) except as permitted by the terms hereof and the Securities, the
cessation of effectiveness of any Guaranty or the finding by any judicial
proceeding that any such Guaranty is unenforceable or invalid or the
denial or disaffirmation by any Guarantor of its obligations under its
Guaranty.
A default under any other indebtedness of the Company or any of its
Subsidiaries or joint ventures or the Trust would not constitute an Event of
Default under the Securities.
61 EXECUTION
71
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
As provided in and subject to the provisions of this Indenture, if an
Event of Default with respect to the Securities at the time Outstanding occurs
and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in aggregate outstanding principal amount of the Outstanding
Securities may declare the principal amount of and interest (including
Additional Sums and Additional Amounts, if any) on all the Securities to be due
and payable immediately, by a notice in writing to the Note Issuer and the
Guarantors (and to the Trustee if given by Holders), provided, that if the
Trustee or such Holders fail to do so, the Preferred Trustee shall have such
right by a notice in writing to the Note Issuer and the Trustee; and upon any
such declaration such specified amount of and the accrued interest (including
Additional Sums and Additional Amounts, if any) on all the Securities shall
become immediately due and payable, provided, that the payment of principal and
interest (including Additional Sums and Additional Amounts, if any) on such
Securities shall remain subordinated to the extent provided in Article XII of
the Indenture.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Note Issuer and the Trustee, may rescind and annul such declaration and
its consequences if:
(1) the Note Issuer or any Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest (including Additional Sums
and Additional Amounts, if any) on the Securities,
(B) the principal of (and premium, if any, on) any Securities which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
(2) all Events of Default, other than the non-payment of the
principal of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
The Holders of a majority in aggregate outstanding principal amount of the
Securities affected thereby may, on behalf of the Holders of all the Securities,
waive any past default, except a
62 EXECUTION
72
default in the payment of principal, premium, if any, or interest (unless such
default has been cured and a sum sufficient to pay all matured installments of
interest, premium, if any, and principal due otherwise than by acceleration has
been deposited with the Trustee) or a default in respect of a covenant or
provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Security and, should the Holders of
such Securities fail to annul such declaration and waive such default, the
holders of a majority in aggregate liquidation amount of the Preferred
Securities shall have such right. The Preferred Trustee, as the initial Holder
of the Securities, has agreed under the Declaration not to waive an Event of
Default with respect to the Securities without the consent of holders of a
majority in aggregate liquidation amount of the Preferred Securities then
outstanding.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, a record date shall be
established for determining Holders of Outstanding Securities entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.2.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Note Issuer covenants that if:
(1) default is made in the payment of any installment of interest
(including Additional Sums and Additional Amounts, if any) on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
(2) default is made in the payment of the principal of (and premium,
if any, on) any Security at the Maturity thereof,
63 EXECUTION
73
the Note Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest (including
Additional Sums and Additional Amounts, if any); and, in addition thereto, all
amounts owing the Trustee under Section 6.7.
If the Note Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Note Issuer, any Guarantor or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Note Issuer, any Guarantor or any other
obligor upon the Securities, wherever situated.
Subject to Section 6.3 hereof, if an Event of Default occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders under this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, pursuant to the terms of this Indenture.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Note Issuer, any Guarantor or any other
obligor upon the Securities or the property of the Note Issuer, of any Guarantor
or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Note Issuer for the payment of overdue principal (and premium, if any) or
interest (including Additional Sums and Additional Amounts, if any)) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including Additional Sums and Additional Amounts,
if any) owing and unpaid in respect to the Securities and to file such other
papers or documents as may be necessary or advisable and to take any and all
actions as are authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under Section 6.7 and
of the Holders allowed in any such judicial proceedings; and
64 EXECUTION
74
(ii) and in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, 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 and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to the Securities pursuant to this Article, shall, subject to Articles
XII and XIV, be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money or property on
account of principal (or premium, if any) or interest (including any Additional
Sums), upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7;
SECOND: To the extent provided in Article XII, to the holders of
Senior Indebtedness of the Note Issuer and the Company in accordance with
Article XII or if
65 EXECUTION
75
collected from a Guarantor, to the extent provided in Article XIV, to the
holders of Senior Indebtedness of the Guarantor in accordance with Article
XIV;
THIRD: To the payment of the amounts then due and unpaid upon such
Securities for principal (and premium, if any) and interest (including
Additional Sums and Additional Amounts, if any), in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and
interest (including any Additional Sums and Additional Amounts),
respectively; and
FOURTH: The balance, if any, to the Person or Persons lawfully
entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) if the Preferred Trustee is not the Holder of the Securities,
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
66 EXECUTION
76
The foregoing limitations shall not apply to a suit instituted by a Holder
of a Security for enforcement of payment of the principal of and premium, it
any, or interest (including Additional Sums and Additional Amounts, if any) on
such Security on or after the respective due dates expressed in such Security.
SECTION 5.8. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including Additional Sums and Additional Amounts, if any) on such
Security on the respective Stated Maturities expressed in such Security and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder. Except as set forth in the
Declaration, the holders of Preferred Securities shall have no right to exercise
directly any right or remedy available to the Holders of, or in respect of, the
Securities; provided, however, that if the Preferred Trustee or the Special
Trustee (as defined in the Declaration) do not enforce such payment obligations,
a holder of Preferred Securities will have the right to bring an action on
behalf of the Trust to enforce the Trust's rights under the Securities and the
Indenture.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Note Issuer, the Guarantors, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
67 EXECUTION
77
SECTION 5.11. Delay or Omission Not Waiver.
Except as otherwise provided in the last paragraph of Section 3.6, no
delay or omission of the Trustee or of any Holder of any Security to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities shall have the right, subject to Section 6.3 hereof, to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee, with
respect to the Securities, provided, that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that
the proceeding so directed would be unjustly prejudicial to the Holders
not joining in any such direction or would involve the Trustee in personal
liability.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, a record date shall be established for determining Holders of
Outstanding Securities entitled to join in such notice, which record date shall
be at the close of business on the day the Trustee receives such notice. The
Holders on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that, unless the Holders of a
majority in principal amount of the Outstanding Securities shall have joined in
such notice prior to the day which is 90 days after such record date, such
notice shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving, after expiration of such 90-day period, a new
notice identical to a notice which has been canceled
68 EXECUTION
78
pursuant to the proviso to the preceding sentence, in which event a new record
date shall be established pursuant to the provisions of this Section 5.12.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate outstanding principal
amount of the Outstanding Securities affected thereby may on behalf of the
Holders of all the Securities waive any past default hereunder and its
consequences with respect to the Securities except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including Additional Sums and Additional Amounts, if any) on any
Security, or
(2) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of (or premium, if any) or interest (including Additional Sums and
Additional Amounts, if any) on any Security on or after the respective Stated
Maturities expressed in such Security.
69 EXECUTION
79
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
Each of the Note Issuer and the Guarantors covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any usury, stay
or extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and each of the
Note Issuer and the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any provisions
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case 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
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
70 EXECUTION
80
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.12 relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities, the Trustee shall transmit by mail to all Holders, as their names
and addresses appear in the Securities Register, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including Additional Sums
and Additional Amounts, if any) on any Security, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders; and provided, further, that, in the
case of any default of the character specified in Section 5.1(3), no such notice
to Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or passage of time or both would be, an Event of Default.
71 EXECUTION
81
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
Security or other evidence of indebtedness, or other paper or document believed
by it to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Note Issuer mentioned herein shall be
sufficiently evidenced by a Note Issuer Request or Note Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, Security or other evidence of indebtedness, or other paper or document,
but the Trustee in its discretion may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Note Issuer or any Guarantor,
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
72 EXECUTION
82
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in Securities and Guaranties endorsed
thereon, except the Trustee's certificates of authentication, shall be taken as
the statements of the Note Issuer, or the Guarantors, as the case may be, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Indenture or of the
Securities, the value or condition of any Collateral or the priority or
perfection of any security interest purportedly granted herein. The Trustee
shall not be accountable for the use or application by the Note Issuer of the
Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, Collateral Agent, any Paying Agent, Securities Registrar or
any other agent of the Note Issuer or any Guarantor, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Note Issuer or any Guarantor
with the same rights it would have if it were not Trustee, Paying Agent,
Securities Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Note Issuer or any Guarantor, as the case may be.
SECTION 6.7. Compensation and Reimbursement.
The Company and the Note Issuer agree
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder in such amounts as the Note
Issuer, the Guarantors and the Trustee shall agree from time to time
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
73 EXECUTION
83
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense (including the reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel)
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust or the
performance of its duties hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. This
indemnification shall survive the termination of this Agreement.
To secure the Note Issuer's payment obligations in this Section, the Note
Issuer and the Holders agree that the Trustee shall have a lien prior to the
Securities on all money or property held or collected by the Trustee. Such lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any applicable German or United States Federal or State or
other applicable foreign bankruptcy, insolvency or other similar law.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee shall be subject to the provisions of Section 310(b) of the
Trust Indenture Act. Nothing herein shall prevent the Trustee from filing with
the Commission the application referred to in the second to last paragraph of
Section 301(b) of the Trust Indenture Act.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws of the
United States of America or of any State, Territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at
74 EXECUTION
84
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then, for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article. Neither
the Note Issuer nor any Person directly or indirectly controlling, controlled by
or under common control with the Note Issuer shall serve as Trustee.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof to
the Note Issuer. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Securities
by Act of the Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Note Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written
request therefor by the Note Issuer or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Note Issuer or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Note Issuer, acting pursuant to the authority of
a Board Resolution, may remove the Trustee, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
75 EXECUTION
85
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Note
Issuer, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Note Issuer and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Note
Issuer. If no successor Trustee shall have been so appointed by the Note Issuer
or the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months
may, subject to Section 5.14, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Note Issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities as their names and addresses appear in the Securities Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company, the Note Issuer, and the other Guarantors and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company, the Note Issuer, any other Guarantor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company, the Note
Issuer and the Guarantors shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all rights,
powers and trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
76 EXECUTION
86
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Note Issuer.
If and when the Trustee shall be or become a creditor of the Note Issuer,
the Guarantors or any other obligor upon the Securities, the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Note Issuer, the Guarantors or any such other obligor.
77 EXECUTION
87
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate the Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption thereof, and the Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of the Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Note
Issuer and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof, or any
Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Note Issuer. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Note Issuer. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Note Issuer and the Guarantors and shall
give notice of such appointment in the manner provided in Section 1.6 to all
Holders of Securities. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
78 EXECUTION
88
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.7.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities with the Guaranties endorsed thereon
referred to in the within mentioned Indenture.
____________________________________
____________________________________
As Trustee
By: ________________________________
As Authenticating Agent
By: ________________________________
Authorized Officer
79 EXECUTION
89
ARTICLE VII.
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND NOTE ISSUER
SECTION 7.1. Note Issuer to Furnish Trustee Names and Addresses of
Holders.
The Note Issuer will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date,
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Note Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights, privileges and duties of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Note Issuer, the Guarantors and the Trustee that none of the Note
Issuer, the Guarantors, the Trustee and any agent of any of them shall be held
accountable by reason of any disclosure of information as to the names and
addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
80 EXECUTION
90
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than May 15 in each calendar year,
commencing with the first May 15 after the first issuance of Securities under
this Indenture.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with the Commission, and delivered to the Note
Issuer and to the Guarantors.
SECTION 7.4. Reports by Note Issuer.
The Company, the Note Issuer and each of the Guarantors shall file with
the Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act; provided, whether or not required by the rules and
regulations of the Commission, so long as any Securities are Outstanding, the
Company shall provide the Trustee and the Holders with (i) all annual financial
information that would be required to be contained in a filing with the
Commission on Form 20-F as if the Company were required to file such Forms, and
(ii) quarterly financial statements as of end for the period from the beginning
of each year to the close of each quarterly period (other than the fourth
quarter), together with comparable information for the corresponding periods of
the preceding year, including, in each case, a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon from the Company's certified
independent public accountants. (In addition, whether or not required by the
rules and regulations of the Commission, the Company will file a copy of all
such information and reports with the Commission for public availability and
make such information and reports available to securities analysts and
prospective investors upon request.) The Company and the Note Issuer also shall
comply with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Note Issuer May Consolidate, etc., Only on Certain Terms.
The Note Issuer shall not consolidate or merge with or into any other
Person (whether or not the Note Issuer is the Surviving Person) or convey,
transfer, assign, sell, lease or otherwise dispose of, in one or more related
transactions, all or substantially all of its properties and assets as an
entirety to any Person, unless:
(1) the Surviving Person shall be a corporation, organized and
existing under the laws of Germany, the United Kingdom, the United States
of America or any State thereof, the District of Columbia or the
jurisdiction of formation of the Note Issuer;
81 EXECUTION
91
(2) the Surviving Person (if other than the Note Issuer) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Note Issuer under the Securities and the Indenture;
(3) at the time of, and immediately after giving effect to, such
transaction, no Default or Event of Default, shall have occurred and be
continuing;
(4) the Note Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer, assignment, sale, lease or
disposition, and any such supplemental indenture complies with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with; and the Trustee, subject to
Section 6.1, may rely upon such Officers' Certificate and Opinion of
Counsel as conclusive evidence that such transaction complies with this
Section 8.1; and
(5) such consolidation, merger, conveyance, transfer, assignment,
lease or disposition is permitted under the Declaration and does not give
rise to any breach or violation of the Declaration.
SECTION 8.2. Guarantors May Consolidate, etc., Only on Certain Terms.
The Company will not and will not permit any other Guarantor to
consolidate with or merge with or into, or convey, transfer, sell, assign,
lease, or otherwise dispose of, in one transaction or a series of transactions,
all or substantially all of its properties and assets to any Person unless:
(1) the Surviving Person (if not the Company or such other
Guarantor) shall be a Person organized and existing under the laws of the
jurisdiction under which such Guarantor was organized or under the laws of
Germany, the United Kingdom, the United States of America, or any State
thereof or the District of Columbia or, except in a transaction or series
of transactions involving the Company, the jurisdiction of formation of
the Note Issuer or, if the Surviving Person is a corporation organized and
existing under the laws of any other jurisdiction, the Note Issuer
delivers to the Trustee an Opinion of Counsel reasonably acceptable to the
Trustee to the effect that the rights of the Holders of the Securities
would not be affected adversely as a result of the law of the jurisdiction
of organization of the Surviving Person, insofar as such law affects the
ability of the Surviving Person to pay and perform its obligations and
undertakings in connection with its Guaranty or the ability of the
Surviving Person to obligate itself to pay and perform such obligations
and undertakings or the ability of the Holders to enforce such obligations
and undertakings;
82 EXECUTION
92
(2) the Surviving Person (if other than the Company or such other
Guarantor) shall expressly assume, (A) in a transaction or series of
transactions involving the Company, by a supplemental indenture in a form
satisfactory to the Trustee, all of the obligations of the Company under
this Indenture, including its Guaranty hereunder, or (B) in a transaction
or series of transactions not involving the Company, by a Guaranty
Agreement, in a form satisfactory to the Trustee, all the obligations of
such Subsidiary, if any, under its Guaranty;
(3) at the time of, and immediately after giving effect to, such
transaction or transactions on a pro forma basis (and treating any
Indebtedness which becomes an obligation of the resulting, surviving or
transferee Person as a result of such transaction as having been issued by
such Person at the time of such transaction), no Default shall have
occurred and be continuing; and
(4) in the case of a transaction or series of transactions involving
the Company, (a) the Surviving Person will have a Consolidated Net Worth
(immediately after the transaction) equal to or greater than the
Consolidated Net Worth of the Company immediately preceding the
transaction, (b) at the time of such transaction and after giving pro
forma effect thereto, the Surviving Person would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to paragraph (a) of
Section 10.8 and (c) such consolidation, merger, conveyance, transfer or
lease is permitted under the Declaration and the Company Guarantee and
does not give rise to any breach or violation of the Declaration or the
Company Guarantee; and
(5) the Note Issuer and the Company or such other Note Guarantor has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance,
transfer, assignment, sale, lease, or disposition and such supplemental
indenture or Guaranty Agreement, if any, complies with the Indenture.
SECTION 8.3. Successor Corporation Substituted.
Upon any consolidation or merger by the Note Issuer with or into any other
Person, or any conveyance, transfer, sale, assignment, lease or other
disposition by the Note Issuer, in one or more transactions, of substantially
all of its properties and assets as an entirety to any Person in accordance with
Section 8.1, the Surviving Person shall succeed to, and be substituted for, and
may exercise every right and power of, the Note Issuer under this Indenture with
the same effect as if such Surviving Person had been named as the Note Issuer
herein, and thereafter the Note Issuer shall be discharged from all obligations
and covenants under the Indenture and the Securities.
Such Surviving Person may cause to be signed, and may issue either in its
own name or in the name of the Note Issuer, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Note
Issuer and delivered to the Trustee; and, upon the order of such Surviving
Person instead of the Note Issuer and subject to all the terms, conditions and
limitations
83 EXECUTION
93
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Note Issuer to the Trustee for authentication pursuant to such
provisions and any Securities which such Surviving Person thereafter shall cause
to be signed and delivered to the Trustee on its behalf for the purpose pursuant
to such provisions. All the Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though
all of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, assignment, transfer,
conveyance, lease, or other disposition such changes in phraseology and form may
be made in the Securities thereafter to be issued as may be appropriate.
Upon any consolidation, or merger of a Guarantor with or into any other
Person or any transfer, conveyance, sale, lease, assignment or other disposition
of all or substantially all of the properties and assets of such Guarantor as an
entirety in accordance with Section 8.2, the Surviving Person shall succeed to,
and be substituted for, and may exercise every right and power of, such
Guarantor under this Indenture with the same effect as if such Surviving Person
had been named as a Guarantor herein, and thereafter the Guarantor shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
SECTION 8.4. Successor to Note Issuer.
84 EXECUTION
94
The Company or a Wholly Owned Subsidiary (a "Successor"), may assume the
obligations of the Note Issuer under the Securities by executing and delivering
to the Trustee (a) a supplemental indenture which subjects such person to all of
the provisions of the Indenture as Note Issuer and (b) an Opinion of Counsel to
the effect that such supplemental indenture has been duly authorized and
executed by such Person, and constitutes the legal, valid, binding and
enforceable obligation of such Person, subject to customary exceptions;
provided, that (i) the Successor is formed under the laws of the United States
of America, or any State thereof or the District of Columbia, Germany, the
United Kingdom or any other Member State of the European Union, (ii) no
Additional Amounts would be or become payable with respect to the Securities and
the time of such assumption, or as a result of any change in the laws of the
jurisdiction of formation of such Successor that was reasonably foreseeable at
such time, (iii) the assumption of such obligations by the Successor shall not
cause the Trust to fail or cease to be classified for United States Federal
income tax purposes as a grantor trust or another entity which is not subject to
United States Federal income tax at the entity level and the assets and income
of which are treated for United States Federal income tax purposes as held and
derived directly by holders of interests in such Trust and, (iv) if a Wholly
Owned Subsidiary is the Successor, the Company will continue to unconditionally
guarantee, on a senior subordinated basis, the obligations assumed by such
Successor. The Successor will succeed to, and be substituted for, and may
exercise every right and power of, the Note Issuer under the Indenture with the
same effect as if it were the Note Issuer thereunder, and the former Note Issuer
will be discharged from all obligations and covenants under the Indenture and
the Securities.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Note Issuer, when authorized by a
Board Resolution of the Note Issuer, the Company, when authorized by a Board
Resolution of the Company, the Guarantors, when authorized by respective Board
Resolutions of the Guarantors, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Note Issuer
or any Guarantor, and the assumption by any such successor of the
covenants of the Note Issuer or such Guarantor herein and in the
Securities; or
(2) to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or to surrender any right or power herein conferred
upon the Note Issuer; or
85 EXECUTION
95
(3) to establish the form or terms of Securities and Guaranties as
permitted by Section 2.1; or
(4) to add to the covenants of the Note Issuer for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Note Issuer; or
(5) to add any additional Events of Default; or
(6) to change or eliminate any of the provisions of this Indenture,
provided, that any such change or elimination shall become effective only
when there is no Security Outstanding created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided, that such action pursuant to this clause
(7) shall not materially adversely affect the interest of the Holders or,
for so long as any of the Preferred Securities shall remain outstanding,
the holders of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act; or
(10) to add new Guarantors pursuant to Section 13.5.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities affected by such supplemental indenture, by
Act of said Holders delivered to the Note Issuer, the Guarantors and the
Trustee, the Note Issuer, when authorized by a Board Resolution of the Note
Issuer, the Guarantors, when authorized by respective Board Resolutions of the
Guarantors, and the Trustee may modify the Indenture or enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
86 EXECUTION
96
(1) extend the Stated Maturity of the principal of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time
of payment of interest thereon, or reduce any premium payable upon the
redemption thereof, or change the place of payment where, or the currency
of payment of any principal of, or any premium or interest on any
Security, or impair the right to institute suit for the enforcement of any
such payment on or with respect to a Security (or, in the case of
redemption, on or after the date fixed for redemption thereof); or
(2) reduce the percentage in principal amount of Securities, the
consent of whose Holders is required for any such modification or
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.18, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; or
(4) modify the provisions in this Indenture relating to the
subordination of Outstanding Securities in a manner adverse to the
Holders.
provided, that, so long as any of the Preferred Securities remains outstanding,
no such amendment shall be made that adversely affects the holders of such
Preferred Securities, and no termination of this Indenture shall occur, and no
waiver of any Event of Default or compliance with any covenant under this
Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation preference of such Preferred
Securities then outstanding unless and until the principal (and premium, if any)
of the Securities and all accrued and, subject to Section 3.7, unpaid interest
(including Additional Sums and Additional Amounts, if any) thereon have been
paid in full; and provided further, that, so long as any of the Preferred
Securities remain outstanding, no amendment shall be made to Section 5.8 of this
Indenture without the prior consent of the holders of each Preferred Security
then outstanding unless and until the principal (and premium, if any) of the
Securities and all accrued and (subject to Section 3.7) unpaid interest
(including Additional Sums and Additional Amounts, if any) thereon have been
paid in full.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
87 EXECUTION
97
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby. No such supplemental indenture shall directly or
indirectly modify the provisions of Article XII, Article XIV, Sections 4.3(b),
5.3 or 5.6 in any manner which might terminate or impair the rights of the
Senior Indebtedness pursuant to such subordination provisions.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to any applicable requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Note Issuer, bear a notation in form approved by the Note Issuer as to any
matter provided for in such supplemental indenture. If the Note Issuer and the
Guarantors shall so determine, new Securities so modified as to conform, in the
opinion of the Note Issuer and the Guarantors, to any such supplemental
indenture may be prepared and executed by the Note Issuer and the Guaranties
endorsed thereon may be executed by the Guarantors and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
88 EXECUTION
98
ARTICLE X.
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Note Issuer covenants and agrees for the benefit of each of the
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities in accordance with the terms of such
Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Note Issuer will maintain in the Borough of Manhattan, The City of New
York an office or agency where Securities may be presented or surrendered for
payment and an office or agency where Securities may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Note Issuer or any Guarantor in respect of the Securities, any Guaranty
endorsed thereon and this Indenture may be served. The Note Issuer and the
Guarantors initially appoint the Trustee, acting through its office or agency in
the Borough of Manhattan, The City of New York, as its agent for said purposes.
The Note Issuer and the Guarantors will give prompt written notice to the
Trustee of any change in the location of any such office or agency. If at any
time the Note Issuer or any Guarantor shall fail to maintain such office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Note Issuer and each Guarantor
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Note Issuer may also from time to time designate one or more other
offices or agencies in or outside the Borough of Manhattan, The City of New York
where the Securities may be presented or surrendered for any or all of 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
Note Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Note Issuer will 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.
89 EXECUTION
99
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Note Issuer shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Note Issuer shall have one or more Paying Agents, it will,
prior to 10:00 a.m. New York City time on each due date of the principal of (and
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal, premium, or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Note Issuer will promptly notify the Trustee of its action or failure so to
act.
The Note Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Note Issuer (or
any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent.
The Note Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Note Issuer Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Note Issuer or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the
Note Issuer or such Paying Agent; and, upon such payment by the Note Issuer or
any Paying Agent to the Trustee, the Note Issuer or such Paying Agent shall be
released from all further liability with respect to such money.
90 EXECUTION
100
Any money deposited with the Trustee or any Paying Agent, or then held by
the Note Issuer, in trust for the payment of the principal of (and premium, if
any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall (unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be paid on Note Issuer Request to the Note
Issuer, or (if then held by the Note Issuer) shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law) be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Note 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 Note 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 Note Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in The Borough of Manhattan, The City of New York, 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 publication, any
unclaimed balance of such money then remaining will be repaid to the Note
Issuer.
SECTION 10.4. Existence.
Subject to Article VIII and the other Sections of this Article X, the
Company will do or cause to be done all things necessary to preserve and keep in
full force and effect the existence, rights (charter and statutory) and
franchises of the Company, the Note Issuer and each other Guarantor; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors of the Company in good faith shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 10.5. Maintenance of Properties.
Subject to Article VIII and the other Sections of this Article X, the
Company will cause all properties used or useful in the conduct of its business
or the business of any Subsidiary of the Company to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, as determined by the Company in good faith, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
91 EXECUTION
101
SECTION 10.6. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (b) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Company or any of its Subsidiaries; provided, however, that the Company shall
not be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.7. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all times
all of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice. The Company shall, and shall cause its Subsidiaries to, use the
proceeds from any such insurance policy to repair, replace or otherwise restore
the property to which such proceeds relate, except to the extent that a
different use of such proceeds is, as determined by the Company, in good faith,
desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 10.8. Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not permit any Subsidiary to, Incur,
directly or indirectly, any Indebtedness unless, on the date of such Incurrence
(and after giving effect thereto), the Consolidated Coverage Ratio exceeds 2.5
to 1.
(b) The foregoing limitations contained in paragraph (a) do not apply to
the Incurrence of any of the following Indebtedness:
(1) Indebtedness under the Credit Agreements;
(2) Indebtedness owed to and held by a Wholly Owned Subsidiary;
provided, however, that any subsequent issuance or transfer of any Capital
Stock that results in any such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any subsequent transfer of such Indebtedness
(other than to another Wholly Owned Subsidiary) shall be deemed, in each
case, to constitute the Incurrence of such Indebtedness by the Company;
92 EXECUTION
102
(3) the 9% Notes, the USD Securities and the Securities;
(4) Capital Lease Obligations and Indebtedness incurred, in each
case, to provide all or a portion of the purchase price or cost of
construction of an asset or, in the case of a sale/leaseback transaction,
to finance the value of such asset owned by the Company or a Subsidiary,
in an aggregate principal amount which, together with all other such
Capital Lease Obligations and Indebtedness outstanding on the date of such
Incurrence (other than Indebtedness permitted by paragraph (a) or clause
(2) or (9) of this paragraph (b)), does not exceed $200,000,000;
(5) Indebtedness in respect of Receivables Financings in an
aggregate principal amount which, together with all other Indebtedness in
respect of Receivables Financings outstanding on the date of such
Incurrence (other than Indebtedness permitted by paragraph (a) or clause
(2) or (9) of this paragraph (b)), does not exceed $500,000,000;
(6) Refinancing Indebtedness in respect of Indebtedness Incurred
pursuant to paragraph (a) or pursuant to clause (3), (4) or (5) of this
paragraph (b);
(7) Hedging Obligations permitted under the Bank Credit Agreement as
in effect on the Issue Date;
(8) customer deposits and advance payments received from customers
for goods purchased in the ordinary course of business; and
(9) Indebtedness in an aggregate principal amount which, together
with all other Indebtedness of the Company and its Subsidiaries
outstanding on the date of such Incurrence (other than Indebtedness
permitted by paragraph (a) or clauses (1) through (8) of this paragraph
(b)), does not exceed $300,000,000.
(c) Notwithstanding the foregoing, the Company shall not, and shall not
permit any Subsidiary to, Incur, directly or indirectly, any Indebtedness (i)
that is subordinate or junior in ranking in right of payment to its Senior
Indebtedness unless such Indebtedness is Senior Subordinated Indebtedness or is
expressly subordinated in right of payment to Senior Subordinated Indebtedness,
or (ii) pursuant to paragraph (b) above if the proceeds thereof are used,
directly or indirectly, to Refinance any Subordinate Obligations unless such
Indebtedness shall be subordinated to the Securities to at least the same extent
as such Subordinated Obligations.
(d) For purposes of determining compliance with the foregoing covenant,
(i) in the event that an item of Indebtedness meets the criteria of more than
one of the types of Indebtedness described above, the Company, in its sole
discretion, will classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of the above clauses
93 EXECUTION
103
and (ii) an item of Indebtedness may be divided and classified in more than one
of the types of Indebtedness described above.
SECTION 10.9. Limitation on Restricted Payments.
(a) The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, make any Restricted Payment if at the time the Company
or such Subsidiary makes such Restricted Payment:
(1) a Default shall have occurred and be continuing (or would result
therefrom);
(2) the Company is not able to Incur an additional $1.00 of
Indebtedness pursuant to paragraph (a) of Section 10.8; or
(3) the aggregate amount of such Restricted Payment and all other
Restricted Payments since the Issue Date would exceed the sum of: (A) 50%
of the Consolidated Net Income accrued during the period (treated as one
accounting period) from January 1, 1998 to the end of the Company's most
recently ended fiscal quarter for which internal financial statements are
available at the time of such Restricted Payment (or, in case such
Consolidated Net Income shall be a deficit, minus 100% of such deficit);
(B) the aggregate Net Cash Proceeds received by the Company from the
issuance or sale of its Capital Stock (other than Disqualified Stock)
subsequent to the Issue Date (other than an issuance or sale to a
Subsidiary and other than an issuance or sale to an employee stock
ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees); and (C) the amount by
which Indebtedness of the Company is reduced on the Company's balance
sheet upon the conversion or exchange (other than by a Subsidiary),
subsequent to the Issue Date, of any Indebtedness of the Company
convertible or exchangeable for Capital Stock (other than Disqualified
Stock) of the Company (less the amount of any cash, or the fair value of
any other property, distributed by the Company upon such conversion or
exchange).
(b) The provisions of the foregoing paragraph (a) shall not prohibit:
(1) any purchase or redemption of Capital Stock or Subordinated
Obligations of the Company made by exchange for, or out of the proceeds of
the substantially concurrent sale of, Capital Stock of the Company (other
than Disqualified Stock and other than Capital Stock issued or sold to a
Subsidiary or an employee stock ownership plan or to a trust established
by the Company or any of its Subsidiaries for the benefit of their
employees); provided, however, that (A) such purchase or redemption shall
be excluded in the calculation of the amount of Restricted Payments and
(B) the Net Cash Proceeds from such sale shall be excluded from the
calculation of amounts under clause (3)(B) of paragraph (a) above;
94 EXECUTION
104
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent sale
of, Indebtedness of the Company which is permitted to be Incurred pursuant
to Section 10.8; provided, however, that such purchase, repurchase,
redemption, defeasance or other acquisition or retirement for value shall
be excluded in the calculation of the amount of Restricted Payments; or
(3) dividends paid within 60 days after the date of declaration
thereof if at such date of declaration such dividend would have complied
with this covenant; provided, however, that at the time of payment of such
dividend, no other Default shall have occurred and be continuing (or
result therefrom); provided further, however, that such dividend shall be
included in the calculation of the amount of Restricted Payments.
SECTION 10.10. Limitation on Restrictions on Distributions from
Subsidiaries.
The Company shall not, and shall not permit any Subsidiary to, create or
otherwise cause or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary (a) to pay dividends
or make any other distributions on its Capital Stock to the Company or any other
Subsidiary or pay any Indebtedness owed to the Company or any other Subsidiary,
(b) to make any loans or advances to the Company or any other Subsidiary or (c)
transfer any of its property or assets to the Company or any other Subsidiary,
except:
(i) any encumbrance or restriction pursuant to an agreement in
effect at or entered into on the Issue Date;
(ii) any encumbrance or restriction with respect to a Subsidiary
pursuant to an agreement relating to any Indebtedness Incurred by such
Subsidiary on or prior to the date on which such Subsidiary was acquired
by the Company (other than Indebtedness Incurred as consideration in, or
to provide all or any portion of the funds or credit support utilized to
consummate the transaction or series of related transactions pursuant to
which such Subsidiary became a Subsidiary or was acquired by the Company)
and outstanding on such date;
(iii) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an agreement
referred to in clause (i) or (ii) above or this clause (iii) or contained
in any amendment to an agreement referred to in clause (i) or (ii) above
or this clause (iii); provided, however, that the encumbrances and
restrictions with respect to such Subsidiary contained in any such
refinancing agreement or amendment are no less favorable to the Holders
than encumbrances and restrictions with respect to such Subsidiary
contained in such agreements;
95 EXECUTION
105
(iv) any such encumbrance or restriction consisting of customary
non-assignment provisions in leases governing leasehold interests or in
licensing agreements to the extent such provisions restrict the transfer
of the lease or the property leased thereunder or the licensing agreement
or the rights licensed thereunder;
(v) in the case of clause (c) above, restrictions contained in
security agreements or mortgages securing Indebtedness of a Subsidiary to
the extent such restrictions restrict the transfer of the property subject
to such security agreements or mortgages; and
(vi) any restriction with respect to a Subsidiary imposed pursuant
to an agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Subsidiary pending
the closing of such sale or disposition.
SECTION 10.11. Senior Subordinated Indebtedness; Liens.
The Company shall not, and shall not permit any Subsidiary to,
Incur: (1) any Indebtedness if such Indebtedness is subordinate or junior in
ranking in any respect to any Senior Indebtedness, unless such Indebtedness is
Senior Subordinated Indebtedness or is expressly subordinated in right of
payment to Senior Subordinated Indebtedness; or (2) any Secured Indebtedness
that is not Senior Indebtedness other than the 9% Notes unless (A)
contemporaneously therewith effective provision is made to secure the Securities
equally and ratably with such Secured Indebtedness for so long as such Secured
Indebtedness is secured by a Lien, (B) such Secured Indebtedness is permitted by
clause (1), (4), (5) or (7) of paragraph (b) of Section 10.8, (C) such Secured
Indebtedness is Incurred by a Subsidiary pursuant to a revolving credit
agreement as in effect on the Issue Date, or (D) such Secured Indebtedness is
Refinancing Indebtedness in respect of Secured Indebtedness Incurred by a
Subsidiary pursuant to a revolving credit agreement as in effect on the Issue
Date.
SECTION 10.12. Limitation on Affiliate Transactions.
(a) The Company shall not, and shall not permit any Subsidiary to, enter
into any transaction (including the purchase, sale, lease or exchange of any
property, employee compensation arrangements or the rendering of any service)
with any Affiliate of the Company (an "Affiliate Transaction") unless the terms
thereof:
(1) are no less favorable to the Company or such Subsidiary than
those that could be obtained at the time of such transaction in
arm's-length dealings with a Person who is not such an Affiliate;
(2) if such Affiliate Transaction involves an amount in excess of
$5,000,000, (i) are set forth in writing and (ii) have been approved by a
majority of the members of the
96 EXECUTION
106
Board of Directors of the Company or such Subsidiary having no personal
stake in such Affiliate Transaction; and
(3) if such Affiliate Transaction involves an amount in excess of
$15,000,000, have been determined by a nationally recognized investment
banking firm or, in appropriate circumstances, an internationally
recognized engineering firm, to be fair from a financial standpoint to the
Company and its Subsidiaries.
(b) The provisions of paragraph (a) above shall not prohibit:
(1) any Restricted Payment permitted to be paid pursuant to Section
10.9;
(2) transactions or payments pursuant to any employee arrangements
or employee or director benefit plans entered into by the Company or any
of its Subsidiaries in the ordinary course of business of the Company or
such Subsidiary; and
(3) any Affiliate Transaction between the Company and a Wholly Owned
Subsidiary or between Wholly Owned Subsidiaries.
SECTION 10.13. Limitation on Sales of Assets and Subsidiary Stock.
(a) The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or such Subsidiary receives consideration at the
time of such Asset Disposition at least equal to the fair market value
(including as to the value of all non-cash consideration), as determined
in good faith by the Board of Directors of the Company or such Subsidiary
as the case may be, of the shares and assets subject to such Asset
Disposition and at least 70% of the consideration thereof received by the
Company or such Subsidiary is in the form of cash or cash equivalents; and
(2) an amount equal to 100% of the Net Available Cash from such
Asset Disposition is applied by the Company (or such Subsidiary, as the
case may be) (A) first, to the extent the Company elects (or is required
by the terms of any Senior Indebtedness), to prepay, repay, redeem or
purchase Senior Indebtedness or Indebtedness (other than any Disqualified
Stock) of a Wholly Owned Subsidiary (in each case other than Indebtedness
owed to the Company or an Affiliate of the Company) within one year from
the later of the date of such Asset Disposition or the receipt of such Net
Available Cash; (B) second, to the extent of the balance of such Net
Available Cash after application in accordance with clause (A), to the
extent the Company elects, to acquire Additional Assets within one year
from the later of the date of such Asset Disposition or the receipt of
such Net Available Cash; (C) third, to the extent of the balance of such
Net Available Cash after application in accordance
97 EXECUTION
107
with clauses (A) and (B), to make an offer to the holders of the 9% Notes
to purchase the 9% Notes pursuant to and subject to the conditions
contained in the Indenture relating thereto; and (D) fourth, to the extent
of the balance of such Net Available Cash after application in accordance
with clauses (A), (B) and (C), to cause the Note Issuer to make an offer
to the Holders of the Securities and the USD Securities on a pro rata
basis (determined in accordance with the respective outstanding principal
amounts thereof at the time of such offer, as calculated by reference to
an exchange rate of 1.8237 DM per $1.00) to purchase the Securities and
the USD Securities pursuant to and subject to the conditions contained in
the Indenture (in the case of the Securities) and in the USD Indenture (in
the case of the USD Securities); provided, however, that in connection
with any prepayment, repayment or purchase of Indebtedness pursuant to
clause (A), (C) or (D) above, the Company or such Subsidiary shall retire
such Indebtedness and shall cause the related loan commitment (if any) to
be permanently reduced in an amount equal to the principal amount so
prepaid, repaid or purchased. Notwithstanding the foregoing provisions of
this paragraph, the Company and the Subsidiaries shall not be required to
apply any Net Available Cash in accordance with this paragraph except to
the extent that the aggregate Net Available Cash from all Asset
Dispositions which are not applied in accordance with this paragraph
exceeds $20,000,000. Pending application of Net Available Cash pursuant to
this covenant, such Net Available Cash shall be invested in Permitted
Investments.
For the purposes of this covenant, the following are deemed to be cash or cash
equivalents: (x) the assumption of Indebtedness of the Company or any Subsidiary
and the release of the Company or such Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition and (y) securities
received by the Company or any Subsidiary from the transferee that are promptly
converted by the Company or such Subsidiary into cash.
(b) In the event of an Asset Disposition that requires the purchase of the
Securities pursuant to clause (a)(2)(D) above, the Note Issuer will purchase the
Securities tendered pursuant to an offer by the Note Issuer for the Securities
at a purchase price of 100% of their principal amount (without premium) plus
accrued but unpaid interest, by mailing a notice to each Holder with a copy to
the Trustee, within 30 days following the determination by or on behalf of the
holders of the 9% Notes as to the amount of the 9% Notes to be purchased
pursuant to the offer to repurchase the 9% Notes made pursuant to clause
(a)(2)(C) above, stating:
(i) that an Asset Disposition that requires the purchase of the
Securities pursuant to clause (a)(2)(D) above has occurred and that such
Holder has a right to require the Note Issuer to repurchase Securities at
a purchase price of 100% of their principal amount (without premium) plus
accrued and unpaid interest in an amount not to exceed the balance of Net
Available Cash from such Asset Disposition after application in accordance
with clauses (A), (B) and (C) of this covenant and that the amount
available for repurchase of the Securities will be increased to the extent
that the holders of the USD Securities do not
98 EXECUTION
108
accept the offer to repurchase the USD Securities made pursuant to clause
(D) above and the applicable provisions of the USD Indenture;
(ii) the repurchase date (which shall be no earlier than 30 days not
later than 60 days from the date such notice is mailed);
(iii) that the tendered Securities will be repurchased pro rata in
the event of oversubscription; provided that the unrepurchased portion of
the principal amount of any Security shall be in an authorized
denomination (which shall not be less than the minimum authorized
denomination) for such Security;
(iv) the instructions determined by the Note Issuer, consistent with
the covenant described hereunder, that a Holder must follow in order to
have its Securities purchased; and
(v) that each Security shall be subject to repurchase only in the
amount of DM 1,000 or integral multiples thereof.
The Note Issuer shall not make such an offer to purchase Securities
pursuant to this covenant if the Net Available Cash available therefor is less
than $20,000,000 (which lesser amount shall be carried forward for purposes of
determining whether such an offer is required with respect to any subsequent
Asset Disposition). Each Security shall be subject to repurchase only in the
amount of DM 1,000 or integral multiples thereof. Upon presentation of any
Security repurchased in part only, the Note Issuer shall execute and the Trustee
shall authenticate and deliver to the Holder thereof, at the expense of the Note
Issuer, a new Security (and the Guarantors shall execute their Guaranties to be
endorsed thereon) of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the same
Issue Date, Stated Maturity and terms. If a Global Security is so surrendered,
such new Security will also be a new Global Security.
(c) The Note Issuer shall, and the Company shall cause the Note Issuer to,
comply, to the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in connection with the
repurchase of Securities pursuant to this covenant. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this covenant, the Note Issuer shall, and the Company shall cause the Note
Issuer to, comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under this clause by virtue
thereof.
99 EXECUTION
109
SECTION 10.14. Intentionally Omitted.
SECTION 10.15. Change of Control.
(a) Upon the occurrence of a Change of Control Triggering Event, each
Holder shall have the right to require that the Note Issuer repurchase such
Holder's Securities at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest due on the relevant Interest Payment Date). Each Security
shall be subject to repurchase only in the amount of DM 1,000 or integral
multiples thereof. Upon presentation of any Security repurchased in part only,
the Note Issuer shall execute and the Trustee shall authenticate and deliver to
the Holder thereof, at the expense of the Note Issuer, a new Security (and the
Guarantors shall execute their Guaranties to be endorsed thereon) of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of
the Security so presented and having the same Issue Date, Stated Maturity and
terms. If a Global Security is so surrendered, such new Security will also be a
new Global Security.
(b) Within 30 days following a Change of Control Triggering Event, the
Note Issuer shall mail a notice to each Holder with a copy to the Trustee
stating: (1) that a Change of Control Triggering Event has occurred and that
such Holder has the right to require the Note Issuer to purchase such Holder's
Securities at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant Regular Record Date
to receive interest on the relevant Interest Payment Date); (2) the
circumstances and relevant facts regarding such Change of Control Triggering
Event (including information with respect to pro forma historical income, cash
flow and capitalization after giving effect to such Change of Control); (3) the
repurchase date (which shall be no earlier than 30 days nor later than 60 days
from the date such notice is mailed); (4) the instructions determined by the
Note Issuer, consistent with the covenant described hereunder, that a Holder
must follow in order to have its Securities purchased and (5) that each Security
shall be subject to repurchase only in the amount of DM 1,000 or integral
multiples thereof.
(c) The Note Issuer shall, and the Company shall cause the Note Issuer to,
comply, to the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in connection with the
repurchase of the Securities pursuant to this covenant. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of
this covenant, the Note Issuer shall, and the Company shall cause the Note
Issuer, to comply with the applicable securities laws and regulations and shall
not be deemed to have breached its obligations under this covenant by virtue
thereof.
100 EXECUTION
110
SECTION 10.16. Statement as to Compliance and Default.
(a) The Note Issuer and the Guarantors shall deliver to the Trustee,
within 95 days after the end of each of their respective calendar years ending
after the date hereof, a certificate of the principal executive officer,
principal financial officer or principal accounting officer covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Note Issuer or the Guarantors, as the case may be, is in
default in the performance, observance or fulfillment of or compliance with any
of the terms, provisions, covenants and conditions of this Indenture and, if the
Note Issuer or the Guarantors, as the case may be, shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
(b) The Note Issuer and each Guarantor shall deliver to the Trustee, as
soon as possible and in any event within 10 days after the Note Issuer or any
Guarantor becomes aware of the occurrence of an Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default, and the action which the Note Issuer or any Guarantor
proposes to take with respect thereto.
SECTION 10.17. Ownership of the Trust and the Note Issuer; Business of the
Note Issuer.
(a) The Company shall continue (i) to directly or indirectly maintain 100%
ownership of the Common Securities of the Trust; provided, however, that any
permitted successor of the Company hereunder may succeed to the Company's
ownership of such Common Securities and (ii) to use its reasonable efforts to
cause the Trust (x) to remain a statutory business trust, except in connection
with the distribution of Securities to the holders of Trust Securities in
dissolution of the Trust, the redemption of all of the Trust Securities, or
certain mergers, consolidations or amalgamations, each as permitted by the
Declaration, and (y) to otherwise continue to be classified for United States
Federal income tax purposes as a grantor trust or another entity which is not
subject to United States Federal income tax at the entity level and the assets
and income of which are treated for United States Federal income tax purposes as
held and derived directly by holders of interests in the entity.
(b) The Company shall own directly or indirectly 100% ownership of the
Capital Stock of the Note Issuer; provided, however, that any permitted
successor of the Company pursuant to Article VIII may succeed to the Company's
ownership of such Capital Stock.
(c) The Company shall cause the Note Issuer to engage only in those
activities that are necessary, convenient or incidental to (i) issuing and
selling the Securities and the USD Securities, advancing or distributing the
proceeds thereof to the Company and the Subsidiaries and exercising its rights
and performing its obligations relating to the Securities and the USD Securities
pursuant to the terms thereof and of this Indenture and the USD Indenture, (ii)
conducting or participating in the Exchange Offer and issuing the Exchange
Securities and conducting or participating in the
101 EXECUTION
111
Exchange Offer (as defined in the USD Indenture) and issuing the Exchange
Securities (as defined in the USD Indenture), (iii) guaranteeing the Bank Credit
Agreement and the 9% Notes, and (iv) subject to obtaining the necessary consents
and approvals, assuming the obligations of the Company under the 9% Notes.
SECTION 10.18. Waiver of Certain Covenants.
The Company or the Note Issuer, as applicable, may omit in any particular
instance to comply with any covenant or condition set forth in Section 8.1 and
Sections 10.4 to 10.17, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding Securities
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company or the Note Issuer, as applicable, in respect of any such
covenant or condition shall remain in full force and effect.
SECTION 10.19. Additional Amounts; Additional Interest.
(a) All payments made on behalf of the Note Issuer under or with respect
to the Securities must be made free and clear of and without withholding or
deduction for or on account of any present or future tax, duty, levy, impost,
assessment or other governmental charge (including penalties, interest and other
liabilities related thereto) imposed or levied by or on behalf of the United
States, Germany, the United Kingdom or the jurisdiction of formation of the Note
Issuer, or of any territory thereof or by an authority or agency therein or
thereof having power to tax (hereinafter "Taxes"), unless the Note Issuer is
required to withhold or deduct Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency. If the
Note Issuer is so required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to the Securities, the Note
Issuer will be required to pay such amounts ("Additional Amounts") as may be
necessary so that the net amount (including Additional Amounts) received by each
Holder after such withholding or deduction will not be less than the amount such
Holder would have received if such Taxes had not been withheld or deducted;
provided, however, that no Additional Amounts will be payable with respect to
payments made to any Holder in respect of a beneficial owner which is subject to
such Taxes by reason of its being connected with the United States, Germany, the
United Kingdom or the jurisdiction of formation of the Note Issuer, or any
territory thereof otherwise than by the mere holding of Securities or the
receipt of payments thereunder. The Note Issuer will also make such withholding
or deduction and remit the full amount deducted or withheld to the relevant
authority as and when required in accordance with applicable law. The Note
Issuer will furnish to the Holders within 30 days after the date the payment of
any Taxes is due pursuant to applicable law, certified copies of tax receipts
evidencing such payment by the Note Issuer.
102 EXECUTION
112
(b) In the event that (i) the Trust is the Holder of all outstanding
Securities, (ii) the Trust would be required to pay any taxes, duties,
assessments or governmental charges of whatever nature (other than withholding
taxes) imposed by the United States of America, or any other taxing authority,
and (iii) the Note Issuer shall not have (1) redeemed the Securities pursuant to
Section 11.7 or (2) terminated the Trust pursuant to Section 9.2(f) of the
Declaration, then, in any such case, the Note Issuer shall pay to the Trust (and
its permitted successors or assigns under the Declaration) for so long as the
Trust (or its permitted successors or assigns) is the registered Holder of any
Securities, as additional interest ("Additional Interest") such amounts as shall
be necessary so that the net amounts received and retained by the Trust after
paying any such taxes, duties, assessments or governmental charges will be not
less than the amounts the Trust would have received had no such taxes, duties,
assessments or governmental charges been imposed. All references herein to
Additional Amounts shall be deemed to include Additional Interest.
(c) Whenever in this Indenture or the Securities there is a reference in
any context to the payment of principal of or interest on the Securities, such
mention shall be deemed to include mention of the payments of the Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
(d) The foregoing obligations shall survive any termination, defeasance or
discharge of the Indenture pursuant to Article IV.
ARTICLE XI.
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities as permitted or required by any provision of this
Indenture shall be made in accordance with such provision and this Article.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Note Issuer to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities, the Note Issuer shall furnish the
Trustee with an Officers' Certificate and an Opinion of Counsel evidencing
compliance with such restriction.
103 EXECUTION
113
SECTION 11.3. Intentionally Omitted.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the date fixed for redemption, to each Holder of Securities to be
redeemed, at the address of such Holder as it appears in the Securities
Register.
With respect to the Securities to be redeemed, each notice of redemption
shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) that on the Redemption Date, the Redemption Price at which such
Securities are to be redeemed will become due and payable upon each such
Security or portion thereof, and that interest thereon, if any, shall cease to
accrue on and after said date; and
(d) the place or places where such Securities are to be surrendered for
payment of the Redemption Price at which such Securities are to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Note Issuer shall be given by the Note Issuer or, at the Note Issuer's request,
by the Trustee in the name and at the expense of the Note Issuer and shall not
be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Note Issuer will
deposit with the Trustee or with one or more Paying Agents an amount of money
sufficient to redeem on the Redemption Date all the Securities so called for
redemption at the applicable Redemption Price.
104 EXECUTION
114
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4,
the Securities with respect to which such notice has been given shall become due
and payable on the date and at the place or places stated in such notice at the
applicable Redemption Price. On presentation and surrender of such Securities at
a place of payment in said notice specified, the said Securities shall be paid
and redeemed by the Note Issuer at the applicable Redemption Price.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Note Issuer's Right of Redemption in Certain Circumstances.
If a Tax Event or an Investment Company Event in respect of the Trust
shall occur and be continuing, the Company shall cause the Trustees (as defined
in the Declaration) to dissolve the Trust and cause Securities to be distributed
to the holders of the Trust Securities in dissolution of the Trust or, in the
event of a Tax Event only, may cause the Securities to be redeemed, in each
case, subject to and in accordance with the provisions of the Declaration,
within 90 days following the occurrence of such Tax Event or Investment Company
Event. The Securities may be redeemed, at the option of the Note Issuer, at any
time as a whole but not in part, subject to this clause (b) and the other
provisions of Article XI, at 100% of the principal amount thereof, plus accrued
and unpaid interest (if any) to the date of redemption (subject to the right of
Holders of record on the relevant Regular Record Date to receive interest due on
the relevant Interest Payment Date), in the event the Note Issuer has become or
would become obligated to pay, on the next date on which any amount would be
payable with respect to the Securities, any Additional Amounts as a result of a
change in or an amendment to the laws (including any regulations promulgated
thereunder) of the United States of America, Germany, the United Kingdom,
Luxembourg or any other Member State of the European Union (or any political
subdivision or taxing authority thereof or therein), or any change in or
amendment to any official position regarding the application or interpretation
of such laws or regulations, which change or amendment is announced or becomes
effective on or after the date of the issuance of the Securities.
ARTICLE XII.
SUBORDINATION OF SECURITIES
SECTION 12.1. Securities Subordinate to Senior Indebtedness.
The Note Issuer covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in
105 EXECUTION
115
this Article (subject to Article IV), the payment of the principal of (and
premium, if any) and interest (including Additional Sums and Additional Amounts,
if any) on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Indebtedness of the Note Issuer and the
Company.
SECTION 12.2. Payment Over of Proceeds Upon Dissolution, etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Note Issuer or its property (each such
event, if any, herein sometimes referred to as a "Proceeding"), the holders of
Senior Indebtedness of the Note Issuer shall be entitled to receive payment in
full of principal of (and premium, if any) and interest, if any, on such Senior
Indebtedness, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, before the Holders of the Securities are entitled to receive or
retain any payment or distribution of any kind or character, whether in cash,
property or securities (including any payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of the
Note Issuer (including the Securities) subordinated to the payment of the
Securities, such payment or distribution being hereinafter referred to as a
"Senior Subordinated Payment"), on account of principal of (or premium, if any)
or interest (including Additional Sums and Additional Amounts, if any) on the
Securities or on account of the purchase or other acquisition of Securities by
the Note Issuer or any Subsidiary, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash,
property or securities, including any Senior Subordinated Payment, which may be
payable or deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Note Issuer of any kind or character,
whether in cash, property or securities, including any Senior Subordinated
Payment, before all Senior Indebtedness of the Note Issuer and the Company is
paid in full or payment thereof is provided for in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of such Senior Indebtedness,
and if such fact shall, at or prior to the time of such payment or distribution,
have been made known to the Trustee or, as the case may be, such Holder, then
and in such event such payment or distribution shall be paid over or delivered
forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Note Issuer for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
106 EXECUTION
116
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Note Issuer as reorganized or
readjusted, or securities of the Note Issuer or any other corporation provided
for by a plan of reorganization or readjustment which securities are
subordinated in right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as the Securities are so subordinated as provided
in this Article. The consolidation of the Note Issuer with, or the merger of the
Note Issuer into, another Person or the liquidation or dissolution of the Note
Issuer following the sale of all or substantially all of its properties and
assets as an entirety to another Person or the liquidation or dissolution of the
Note Issuer following the sale of all or substantially all of its properties and
assets as an entirety to another Person upon the terms and conditions set forth
in Article VIII shall not be deemed a Proceeding for the purposes of this
Section if the Person formed by such consolidation or into which the Note Issuer
is merged or the Person which acquires by sale such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger, or
sale comply with the conditions set forth in Article VIII.
SECTION 12.3. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that, upon the occurrence of an Event of Default, any
Securities are declared due and payable before their Stated Maturity, then (a)
the Company, the Note Issuer or the Trustee, at the direction of the Note
Issuer, shall promptly notify the holders of Senior Indebtedness of the Note
Issuer and the Company or the representative of such holders of the
acceleration, and (b) in such event, if any Senior Indebtedness is outstanding,
the Note Issuer may not pay the Securities until five Business Days after the
representative of all issues of Senior Indebtedness receive notice of such
acceleration and, thereafter, may pay the Securities only if payment is
otherwise permitted hereunder at that time.
In the event that, notwithstanding the foregoing, the Note Issuer shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Note Issuer.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.2 would be applicable.
107 EXECUTION
117
SECTION 12.4. No Payment When Senior Indebtedness in Default.
(a) The Note Issuer may not pay principal of, or premium (if any) or
interest (and Additional Sum and Additional Amounts, if any) on, the Securities,
and may not repurchase, redeem or otherwise retire any Securities (collectively
"pay the Securities") if (i) any Specified Senior Indebtedness of the Company or
the Note Issuer (or any other Senior Indebtedness of the Company or the Note
Issuer having an outstanding principal amount at the time of determination in
excess of $25,000,000) is not paid when due or (ii) any other default on
Specified Senior Indebtedness of the Company or the Note Issuer occurs and the
maturity of such Specified Senior Indebtedness is accelerated in accordance with
its terms, unless, in either case, the default has been cured or waived and any
such acceleration has been rescinded or such Specified Senior Indebtedness has
been paid in full. However, the Note Issuer may pay the Securities without
regard to the foregoing if the Company, the Note Issuer and the Trustee receive
written notice approving such payment from a representative of the Specified
Senior Indebtedness with respect to which either of the events set forth in
clause (i) or (ii) of the immediately preceding sentence has occurred and is
continuing.
(b) During the continuance of any default (other than a default described
in clause (i) or (ii) of the preceding paragraph (a)) with respect to any
Specified Senior Indebtedness of the Company or the Note Issuer pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Note Issuer may not pay the
Securities to the Holders for a period (a "Payment Blockage Period") commencing
upon the receipt by the Trustee (with a copy to the Company and the Note Issuer)
of written notice (a "Blockage Notice") of such default from the representative
of the holders of such Specified Senior Indebtedness specifying an election to
effect a Payment Blockage Period and ending 179 days thereafter (or earlier if
such Payment Blockage Period is terminated (i) by written notice to the Trustee,
the Company and the Note Issuer from the representative of the holders of such
Specified Senior Indebtedness, (ii) because the default giving rise to such
Blockage Notice is no longer continuing, as certified to the Trustee by the
representative of the holders of such Specified Senior Indebtedness, or (iii)
because such Specified Senior Indebtedness has been repaid in full, as certified
to the Trustee by the representative of the holders of such Specified Senior
Indebtedness).
(c) Notwithstanding the preceding paragraph (b), unless the holders of
such Specified Senior Indebtedness or the representative of such holders have
accelerated the maturity of such Specified Senior Indebtedness, the Note Issuer
may resume payments on the Securities after the end of such Payment Blockage
Period. The Securities shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults
with respect to Specified Senior Indebtedness during such period.
108 EXECUTION
118
(d) In the event that, notwithstanding the foregoing, the Note Issuer
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Note Issuer.
The provisions of this Section shall not apply to any payment with respect
to which Section 12.2 would be applicable.
SECTION 12.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Note Issuer, at any time except during
the pendency of any Proceeding referred to in Section 12.2 or under the
conditions described in Sections 12.3 and 12.4, from making payments at any time
of principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money or Government Obligations deposited with
it hereunder in accordance with the provisions of Section 4.3 to the payment of
or on account of the principal of (and premium, if any) or interest (including
Additional Sums and Additional Amounts, if any) on the Securities or the
retention of such payment by the Holders, if, at the time of such payment or
application, as the case may be, by the Note Issuer or the Trustee, as the case
may be, the Note Issuer or the Trustee, as the case may be, did not have
knowledge that such payment would have been prohibited by the provisions of this
Article.
SECTION 12.6. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of the Note
Issuer, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness of the
Note Issuer, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Note Issuer which by its express terms is
subordinated to Senior Indebtedness of the Note Issuer to substantially the same
extent as the Securities are subordinated to the Senior Indebtedness and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Indebtedness) to the rights of the
holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness of the Note
Issuer until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation or
assignment, no payments or distributions to the holders of the Senior
Indebtedness of the Note Issuer of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Note Issuer, its
109 EXECUTION
119
creditors other than holders of Senior Indebtedness, and the Holders of the
Securities, be deemed to be a payment or distribution by the Note Issuer to or
on account of the Senior Indebtedness.
SECTION 12.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Note Issuer and the Holders of the
Securities, the obligations of the Note Issuer, which are absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including Additional Sums and Additional Amounts,
if any) on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the Note
Issuer of the Holders of the Securities and creditors of the Note Issuer other
than their rights in relation to the holders of Senior Indebtedness of the Note
Issuer; or (c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
SECTION 12.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 12.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Note
Issuer or by any act or failure to act, in good faith, by any such holder, or by
any noncompliance by the Note Issuer with the terms, provisions and covenants of
this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
110 EXECUTION
120
SECTION 12.10. Notice to Trustee.
The Note Issuer shall give prompt written notice to the Trustee of any
fact known to the Note Issuer which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Note Issuer or a holder of Senior Indebtedness or from
any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true); provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any monies may become
payable for any purpose (including, without limitation, the payment of the
principal of (and premium, if any) or interest (including Additional Sums and
Additional Amounts, if any) on any Security), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
SECTION 12.11. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Note Issuer referred to
in this Article, the Trustee, subject to the provisions of Article VI, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Note Issuer, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 12.12. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the
Note Issuer and shall not be liable to any such holders if it shall in good
faith mistakenly pay over or distribute to Holders of Securities or to the Note
Issuer or to any other Person cash, property or securities to which any holders
of Senior Indebtedness of the Note Issuer shall be entitled by virtue of this
Article or otherwise.
111 EXECUTION
121
SECTION 12.13. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness of the Note
Issuer which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness of the Note Issuer, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
SECTION 12.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Note Issuer and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee.
SECTION 12.15. Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including Additional Sums and Additional Amounts,
if any) on Securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than Securities, Exchange Securities or junior securities)
upon conversion or exchange of a Security shall be deemed to constitute payment
on account of the principal of such security. For the purposes of this Section,
the term "junior securities" means (i) shares of any stock of any class of the
Note Issuer and (ii) securities of the Note Issuer which are subordinated in
right of payment to all Senior Indebtedness of the Note Issuer which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article.
112 EXECUTION
122
ARTICLE XIII.
GUARANTY
SECTION 13.1. Guaranty.
Each of the Guarantors hereby jointly and severally unconditionally
Guarantees, on a senior subordinated basis, to each Holder of a Security
authenticated and delivered by the Trustee, and to the Trustee on behalf of such
Holder, the due and punctual payment of the principal of (and premium, if any)
and interest (including Additional Sums and Additional Amounts, if any) on such
Security when and as the same shall become due and payable, whether at the
Stated Maturity, by acceleration, call for redemption, purchase or otherwise, in
accordance with the terms of such Security and of this Indenture. In case of the
failure of the Note Issuer punctually to make any such payment, each of the
Guarantors hereby jointly and severally agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, purchase or otherwise,
and as if such payment were made by the Note Issuer. The Guarantee extends to
the Note Issuer's repurchase obligations arising from a Change of Control or an
Asset Disposition pursuant to Section 10.15.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Security or this Indenture, the absence of
any action to enforce the same, any exchange, release or non-perfection of any
Lien on any collateral for, or any release or amendment or waiver of any term of
any other Guarantee of, or any consent to departure from any requirement of any
other Guarantee of all or any of the Securities, the election by the Trustee or
any of the Holders in any proceeding under Chapter 11 of Title 11 of the United
States Code (the "Bankruptcy Code") of the application of Section 1111(b)(2) of
the Bankruptcy Code, or equivalent provision under applicable law, any borrowing
or grant of a security interest by the Note Issuer, as debtor-in-possession,
under Section 364 of the Bankruptcy Code, or equivalent provision under
applicable law, the disallowance, under Section 502 of the Bankruptcy Code, or
other similar applicable law, of all or any portion of the claims of the Trustee
or any of the Holders for payment of any of the Securities, any waiver or
consent by the Holder of such Security or by the Trustee with respect to any
provisions thereof or of this Indenture, the obtaining of any judgment against
the Note Issuer or any action to enforce the same or any other circumstances
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each of the Guarantors hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of the
Holders protect, secure, perfect or insure any security interest in or other
Lien on any property subject thereto or exhaust any right or take any action
against the Note Issuer or any other Person or any collateral, filing of claims
with a court in the event of insolvency or bankruptcy of the Note Issuer, any
right to require a proceeding first against the Note Issuer, protest or notice
with respect to such Security or the Indebtedness evidenced thereby and all
demands whatsoever, and covenants that this Guaranty
113 EXECUTION
123
will not be discharged in respect of such Security except by complete
performance of the obligations contained in such Security and in this Guaranty.
Each of the Guarantors hereby agrees that, in the event of a default in payment
of principal (or premium, if any) or interest (including Additional Sums and
Additional Amounts, if any) on such Security, whether at their Stated Maturity,
by acceleration, call for redemption, purchase or otherwise, legal proceedings
may be instituted by the Trustee on behalf of, or by, the Holder of such
Security, subject to the terms and conditions set forth in this Indenture,
directly against each of the Guarantors to enforce this Guaranty without first
proceeding against the Note Issuer. Each Guarantor agrees that, to the extent
permitted by law, if, after the occurrence and during the continuance of an
Event of Default, the Trustee or any of the Holders are prevented by applicable
law from exercising their respective rights to accelerate the maturity of the
Securities, to collect interest on the Securities, or to enforce or exercise any
other right or remedy with respect to the Securities, or the Trustee or the
Holders are prevented from taking any action to realize on any collateral, such
Guarantor agrees to pay to the Trustee for the account of the Holders, upon
demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of
the Holders.
The indebtedness evidenced by the Guaranties is, to the extent provided in
this Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness of each Guarantor, and the Guaranties are
issued subject to the provisions of this Indenture with respect thereto. Each
Holder of such Security, by accepting the same, (a) agrees to and shall be bound
by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
Each Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Guarantee is endorsed against the Note Issuer in
respect of any amounts paid by such Guarantor on account of such Security
pursuant to the provisions of its Guaranty or this Indenture; provided, however,
that no Guarantor shall be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the principal of
(and premium, if any) and interest (including Additional Sums and Additional
Amounts, if any) on all Securities issued hereunder shall have been paid in
full.
Each Guaranty shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Note Issuer for
liquidation or reorganization or equivalent proceeding under applicable law,
should the Note Issuer become insolvent or make an assignment for the benefit of
creditors or should a receiver or trustee be appointed for all or any
significant part of the Note Issuer's assets, or the equivalent of any of the
foregoing under applicable law, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Securities, whether as a voidable preference, fraudulent
transfer, or as otherwise provided under similar laws
114 EXECUTION
124
affecting the rights of creditors generally or under applicable laws of the
jurisdiction of formation of the Note Issuer, all as though such payment or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities shall, to
the fullest extent permitted by law, be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Guaranty.
Each Guaranty (other than the Company's Guaranty) will be limited in
amount to an amount not to exceed the maximum amount that can be guaranteed by
the applicable Guarantor without rendering the Guaranty, as it relates to such
Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally
or under applicable law of Germany.
In the case of Fresenius Medical Care Deutschland GmbH ("FMCD"), the
following provisions apply:
A Profit and Loss Pooling Agreement (the "Agreement")
(Ergebnisabfuhrungsvertrag) dated as of August 21, 1996, between the Company and
FMCD was entered into the commercial register as approved by the stockholders of
the Company and the shareholders of FMCD with effect from January 1, 1996. FMCD,
having a stated capital of DM 80 million, had a capital reserve account of DM
168,302,162 (the "January 1, 1996 Amount") in its balance sheet as of January 1,
1996. Assuming that the January 1, 1996 Amount has not decreased by losses in
the business of FMCD since January 1, 1996, at least such amount exceeds the
Company's assets protecting its share capital within the meaning of Section 30
of the German GmbH Law. Since January 1, 1996, the January 1, 1996 Amount has
not been decreased by the actions of the Company (the sole shareholder of FMCD),
e.g. no distributions against the January 1, 1996 Amount have been made.
Based thereon, the guaranty obligations of FMCD hereunder and under FMCD's
guaranty of the 9% Notes, the USD Securities and any other Senior Subordinated
Indebtedness, if any, of FMCD to which Section 30 of the German GmbH law may
apply are limited to the amount of the capital reserves of FMCD as of the date
hereof less its obligations as a guarantor from time to time under the Bank
Credit Agreement (the "Minimum Guaranty Amount"). If, in the case of a default
under this Indenture, the capital reserves are higher than such Minimum Guaranty
Amount, such higher amount (the "Higher Guaranty Amount") shall serve as
limitation to the obligations of FMCD, as Guarantor. In case FMCD, as Guarantor,
has to sell off assets to fulfill its obligations under this Indenture, after
such guaranty obligations have been drawn, and if the proceeds from the sale of
such assets exceed the amount of their book value, such excess amounts shall be
paid to the Trustee for the benefit of the Holders, subject to the provisions of
Article XIV hereof, in addition to the Minimum Guaranty Amount or the Higher
Guaranty Amount, respectively. For the determination of the applicable book
value, the book value of assets which were included into the
115 EXECUTION
125
balance sheet per January 1, 1996 applies, and for such assets which were not
yet included but added to the business of FMCD since that date, the book value
on the day of the sale of such assets applies. Should Section 30 of the German
GmbH law however require a lower Minimum Guaranty Amount or a lower Higher
Guaranty Amount, then such lower amounts required by law shall be applicable.
FMCD undertakes not to decrease its capital reserves, neither by capital
increase from such reserve accounts nor by other kinds of contributions to its
shareholders or affiliates without the prior written approval of the Holders of
a majority in principal amount of the Outstanding Securities.
FMCD undertakes to maintain a profit and loss pooling agreement with the
Note Issuer during the term of this Indenture, in particular, to extend the term
of such agreement to the term of this Indenture and not to terminate, rescind or
amend such agreement without prior notice to the Trustee and the consent of the
Holders of a majority in principal amount of the Outstanding Securities thereto.
In case of a termination of such profit and loss pooling agreement, FMCD will
grant, upon the request of the Holders of a majority in principal amount of the
Outstanding Securities, collateral to minimize the legal and financial
disadvantages caused by the termination of such agreement, as far as legally
available under German law. FMCD undertakes to give notice immediately to the
Trustee if it intends to give notice of termination to such agreement or to
agree to the termination of such agreement, or if it becomes aware that the Note
Issuer intends to terminate such agreement. During the term of the profit and
loss pooling agreement, any and all allocations of profit to the Note Issuer and
any and all cash distributions to the Note Issuer as a consequence thereof upon
the terms and conditions of the profit and loss pooling agreement are permitted
and unrestricted, subject to the terms of Section 30 of the German GmbH law as
described above.
SECTION 13.2. Execution and Delivery of Guaranties.
The Guaranties to be endorsed on the Securities shall include the terms of
the Guaranty set forth in Section 13.1 and any other terms that may be set forth
in the form established pursuant to Section 2.6. Each of the Guarantors hereby
agrees to execute its Guaranty, in a form established pursuant to Section 2.6,
to be endorsed on each Security authenticated and delivered by the Trustee.
The Guaranty shall be executed on behalf of each respective Guarantor by
any one of such Guarantor's Chairman of the Board of Directors or two members of
the Managing Board, as the case may be, or other person duly authorized by the
Board of Directors or Managing Board of such Guarantor. The signature of any or
all of these persons on the Guaranty may be manual or facsimile.
A Guaranty bearing the manual or facsimile signature of individuals who
were at any time the proper officers of a Guarantor shall bind such Guarantor,
notwithstanding that such individuals
116 EXECUTION
126
or any of them have ceased to hold such offices prior to the authentication and
delivery of the Security on which such Guaranty is endorsed or did not hold such
offices at the date of such Guaranty.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty endorsed
thereon on behalf of the Guarantors. Each of the Guarantors hereby jointly and
severally agrees that its Guaranty set forth in Section 13.1 shall remain in
full force and effect notwithstanding any failure to endorse a Guaranty on any
Security.
SECTION 13.3. Guarantors May Consolidate, etc., on Certain Terms.
Except as set forth in Section 13.4 and in Articles VIII and X hereof,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Guarantor with or into the Company, the Note
Issuer or another Guarantor or shall prevent any sale, transfer, assignment,
lease, conveyance or other disposition of the property of a Guarantor as an
entirety or substantially as an entirety to the Company, the Note Issuer or
another Guarantor.
SECTION 13.4. Release of Guarantors.
(a) Concurrently with any consolidation or merger of a Guarantor or any
sale, transfer, assignment, lease, conveyance or other disposition of the
property of a Guarantor as an entirety or substantially as an entirety, in each
case as permitted by Section 13.3 hereof, and upon delivery by the Company or
the Note Issuer to the Trustee of an Officers' Certificate and an Opinion of
Counsel to the effect that such consolidation, merger, sale, transfer,
assignment, conveyance or other disposition was made in accordance with Section
13.3 hereof, the Trustee shall execute any documents reasonably required in
order to acknowledge the release of such Guarantor from its obligations under
its Guaranty endorsed on the Securities and under this Indenture. Any Guarantor
not released from its obligations under its Guaranty endorsed on the Securities
and under this Indenture shall remain liable for the full amount of principal of
(premium, if any) and interest (including Additional Sums and Additional
Amounts, if any) on the Securities and for the other obligations of a Guarantor
under its Guaranty endorsed on the Securities and under this Indenture.
(b) Concurrently with the defeasance of the Securities under Section 4.3
hereof, the Guarantors shall be released from all of their obligations under
their Guaranties endorsed on the Securities and under this Indenture, without
any action on the part of the Trustee or any Holder of Securities.
(c) Upon the sale or other disposition (including by way of merger or
consolidation) of any Guarantor or the sale, conveyance, transfer, assignment,
lease or other disposition of all or substantially all the assets of a Guarantor
(in each case other than to the Company, the Note Issuer or any Affiliate of the
Note Issuer) pursuant to Section 10.13 hereof, such Guarantor shall
117 EXECUTION
127
automatically be released from all obligations under its Guaranties endorsed on
the Securities and under this Indenture.
SECTION 13.5. Additional Guarantors.
The Company or the Note Issuer may cause any Subsidiary to become a
Guarantor with respect to the Securities by executing and delivering to the
Trustee (a) a supplemental indenture, in form and substance satisfactory to the
Trustee, which subjects such Person to the provisions (including the
representations and warranties) of this Indenture as a Guarantor and (b) an
Opinion of Counsel to the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the legal, valid, binding
and enforceable obligation of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable to
the Trustee in its discretion).
ARTICLE XIV.
SUBORDINATION OF GUARANTIES
SECTION 14.1. Guaranties Subordinate to Senior Indebtedness of Guarantors.
Each Guarantor covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article IV), the payment of the principal of (and premium, if any) and interest
(including Additional Sums and Additional Amounts, if any) on the Guaranty of
each Guarantor in respect of the Securities are hereby expressly made
subordinate and subject in right of payment in full of all amounts then due and
payable in respect of all Senior Indebtedness of the Note Issuer and such
Guarantor.
118 EXECUTION
128
SECTION 14.2. Payment Over of Proceeds Upon Dissolution, etc.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to a Guarantor or its property (each such event, if
any, herein sometimes referred to as a "Guarantor Proceeding"), the holders of
Senior Indebtedness of the Company and such Guarantor shall be entitled to
receive payment in full of principal of (and premium, if any) and interest, if
any (including Additional Sums and Additional Amounts, if any), on such Senior
Indebtedness, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness of the Company and such Guarantor, before the Holders of the
Securities are entitled to receive or retain any payment or distribution of any
kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Indebtedness of the Company or such Guarantor (including
the Securities) subordinated to the payment of the Securities, such payment or
distribution being hereinafter referred to as a "Guarantor Senior Subordinated
Payment"), on account of principal of (or premium, if any) or interest
(including Additional Sums and Additional Amounts, if any) on the Securities or
on account of the purchase or other acquisition of Securities by the Company or
any Subsidiary, and to that end the holders of Senior Indebtedness of the
Company and such Guarantor shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, including any Guarantor Senior Subordinated
Payment, which may be payable or deliverable in respect of the Securities in any
such Guarantor Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company or any Guarantor of any kind or
character, whether in cash, property or securities, including any Guarantor
Senior Subordinated Payment, before all Senior Indebtedness of the Company and
such Guarantor is paid in full or payment thereof is provided for in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of such
Senior Indebtedness, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company or such Guarantor for application to
the payment of all Senior Indebtedness of the Company and such Guarantor
remaining unpaid, to the extent necessary to pay all Senior Indebtedness of the
Company and such Guarantor in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness of the
Company and such Guarantor.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Company or any
119 EXECUTION
129
Guarantor as reorganized or readjusted, or securities of the Company or any
Guarantor or any other corporation provided for by a plan of reorganization or
readjustment which securities are subordinated in right of payment to all then
outstanding Senior Indebtedness of the Company and such Guarantor to
substantially the same extent as the Securities are so subordinated as provided
in this Article. The consolidation of the Company or any Guarantor with, or the
merger of the Company or any Guarantor into, another Person or the liquidation
or dissolution of the Company or any Guarantor following the sale of all or
substantially all of its properties and assets as an entirety to another Person
or the liquidation or dissolution of the Company or any Guarantor following the
sale of all or substantially all of its properties and assets as an entirety to
another Person upon the terms and conditions set forth in Article VIII shall not
be deemed a Guarantor Proceeding for the purposes of this Section if the Person
formed by such consolidation or into which the Company or such Guarantor is
merged or the Person which acquires by sale such properties and assets as an
entirety, as the case may be, shall, as a part of such consolidation, merger, or
sale comply with the conditions set forth in Article VIII.
SECTION 14.3. Prior Payment to Senior Indebtedness
of a Guarantor Upon Acceleration of Securities.
In the event that, upon the occurrence of an Event of Default, any
Securities are declared due and payable before their Stated Maturity, then (a) a
Guarantor shall promptly notify the holders of Senior Indebtedness of such
Guarantor or the representative of such holders of the acceleration, and (b) in
such event, if any Senior Indebtedness of the Company or such Guarantor is
outstanding, such Guarantor may not pay the Securities until five Business Days
after the representative of all issues of Senior Indebtedness of the Company and
such Guarantor receive notice of such acceleration and, thereafter, may pay the
Securities only if payment is otherwise permitted hereunder at that time.
In the event that, notwithstanding the foregoing, a Guarantor shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to such Guarantor.
The provisions of this Section shall not apply to any payment with respect
to which Section 14.2 would be applicable.
120 EXECUTION
130
SECTION 14.4. No Payment When Senior Indebtedness of a Guarantor in
Default.
(a) A Guarantor may not pay principal of, or premium (if any) or interest
(including Additional Sums and Additional Amounts, if any) on, the Securities,
and may not repurchase, redeem or otherwise retire any Securities (collectively
"pay the Securities") if (i) any Specified Senior Indebtedness of the Company or
such Guarantor (or any other Senior Indebtedness of the Company or such
Guarantor having an outstanding principal amount at the time of determination in
excess of $25,000,000) is not paid when due or (ii) any other default on
Specified Senior Indebtedness of the Company or such Guarantor occurs and the
maturity of such Specified Senior Indebtedness is accelerated in accordance with
its terms, unless, in either case, the default has been cured or waived and any
such acceleration has been rescinded or such Specified Senior Indebtedness has
been paid in full. However, a Guarantor may pay the Securities without regard to
the foregoing if the Company such Guarantor and the Trustee receive written
notice approving such payment from a representative of Specified Senior
Indebtedness of the Company and such Guarantor with respect to which either of
the events set forth in clause (i) or (ii) of the immediately preceding sentence
has occurred and is continuing.
(b) During the continuance of any default (other than a default described
in clause (i) or (ii) of the preceding paragraph (a) with respect to any
Specified Senior Indebtedness of the Company or any Guarantor pursuant to which
the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, such Guarantor may not pay the
Securities to the Holders for a period (a "Guarantor Payment Blockage Period")
commencing upon the receipt by the Trustee (with a copy to such Guarantor) of
written notice (a "Guarantor Blockage Notice") of such default from the
representative of the holders of such Specified Senior Indebtedness specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Guarantor from the representative of the holders of such
Specified Senior Indebtedness, (ii) because the default giving rise to such
Blockage Notice is no longer continuing, as certified to the Trustee by the
representative of the holders of such Specified Senior Indebtedness or (iii)
because such Specified Senior Indebtedness has been repaid in full, as certified
to the Trustee by the representative of the holders of such Specified Senior
Indebtedness).
(c) Notwithstanding the preceding paragraph (b), unless the holders of
such Specified Senior Indebtedness or the representative of such holders have
accelerated the maturity of such Specified Senior Indebtedness, the Guarantor
may resume payments on the Securities after the end of such Payment Blockage
Period. The Securities shall not be subject to more than one Payment Blockage
Period in any consecutive 360-day period, irrespective of the number of defaults
with respect to Specified Senior Indebtedness of the Company or such Guarantor
during such period.
121 EXECUTION
131
(d) In the event that, notwithstanding the foregoing, the Guarantor shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to such Guarantor.
The provisions of this Section shall not apply to any payment with respect
to which Section 14.2 would be applicable.
SECTION 14.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) any Guarantor, at any time except during the
pendency of any Proceeding referred to in Section 14.2 or under the conditions
described in Sections 14.3 and 14.4, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money or Government Obligations deposited with
it hereunder in accordance with the provisions of Section 4.3 to the payment of
or on account of the principal of (and premium, if any) or interest (including
Additional Sums and Additional Amounts, if any) on the Securities or the
retention of such payment by the Holders, if, at the time of such payment or
application, as the case may be, by the Company, the Note Issuer or the Trustee,
as the case may be, the Note Issuer or the Trustee, as the case may be, did not
have knowledge that such payment would have been prohibited by the provisions of
this Article.
122 EXECUTION
132
SECTION 14.6. Subrogation to Rights of Holders of Senior Indebtedness of a
Guarantor.
Subject to the payment in full of all Senior Indebtedness of a Guarantor,
or the provision for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Indebtedness of a Guarantor, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness of a Guarantor
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of such Guarantor which by its express terms is subordinated
to Senior Indebtedness of such Guarantor to substantially the same extent as the
Securities are subordinated to Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness of such Guarantor until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. For purposes of such subrogation or assignment, no payments or
distributions to the holders of the Senior Indebtedness of such Guarantor of any
cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Indebtedness of such Guarantor by Holders of the Securities or the
Trustee, shall, as among the Guarantors, their creditors other than holders of
Senior Indebtedness of the Guarantors, and the Holders of the Securities, be
deemed to be a payment or distribution by a Guarantor to or on account of the
Senior Indebtedness of such Guarantor.
SECTION 14.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness of each Guarantor on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as between the Guarantors and the
Holders of the Securities, the obligations of each Guarantor, which are absolute
and unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest (including Additional Sums and Additional Amounts,
if any) on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against any
Guarantor of the Holders of the Securities and creditors of such Guarantor other
than their rights in relation to the holders of Senior Indebtedness of such
Guarantor; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture including, without limitation, filing and voting claims in any
Guarantor Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness of a Guarantor to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
123 EXECUTION
133
SECTION 14.8. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 14.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness of any
Guarantor to enforce subordination as herein provided shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of such
Guarantor or by any act or failure to act, in good faith, by any such holder, or
by any noncompliance by such Guarantor with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof that any such holder may
have or be otherwise charged with.
SECTION 14.10. Notice to Trustee.
Each Guarantor shall give prompt written notice to the Trustee of any fact
known to such Guarantor which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from a
Guarantor or a holder of Senior Indebtedness of a Guarantor or from any trustee,
agent or representative therefor (whether or not the facts contained in such
notice are true); provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any monies may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest (including Additional Sums and Additional Amounts,
if any) on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
monies and to apply the same to the purpose for which they were received and
shall not be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date.
124 EXECUTION
134
SECTION 14.11. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Guarantors referred to
in this Article, the Trustee, subject to the provisions of Article VI, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness of a Guarantor and other indebtedness of such Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 14.12. Trustee Not Fiduciary for Holders of
Senior Indebtedness of the Guarantors.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of any
Guarantor and shall not be liable to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Securities or to any Guarantor
or to any other Person cash, property or securities to which any holders of
Senior Indebtedness of such Guarantor shall be entitled by virtue of this
Article or otherwise.
SECTION 14.13. Rights of Trustee as Holder of Senior Indebtedness
of the Guarantors; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness of any
Guarantor which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness of such Guarantor, and nothing in this Indenture
shall deprive the Trustee of any of its rights as such holder.
SECTION 14.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Note Issuer and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee.
125 EXECUTION
135
SECTION 14.15. Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including Additional Sums and Additional Amounts,
if any) on Securities or on account of the purchase or other acquisition of
Securities, and (b) the payment, issuance or delivery of cash, property or
securities (other than Securities, Exchange Securities or junior securities)
upon conversion or exchange of a Security shall be deemed to constitute payment
on account of the principal of such security. For the purposes of this Section,
the term "junior securities" means (i) shares of any stock of any class of any
Guarantor and (ii) securities of any Guarantor which are subordinated in right
of payment to all Senior Indebtedness of such Guarantor which may be outstanding
at the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
126 EXECUTION
136
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG
By: /s/ XXXXXX STOPPER
------------------------------
Name: Dr. Xxxxxx Stopper
Title: Manager
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ XXXXXXXXX X. XXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
127 EXECUTION
137
FRESENIUS MEDICAL CARE AG, as
Company and as a Guarantor
By: /s/ XXX XXXXX
------------------------------
Name: Xxx Xxxxx
Title: Member of the Managing Board
By: /s/ XXXXXXXX XXXXX
------------------------------
Name: Xx. Xxxxxxxx Xxxxx
Title: Member of the Managing Board
FRESENIUS MEDICAL CARE
HOLDINGS, INC., as a Guarantor
By: /s/ XXX XXXXX
------------------------------
Name: Xxx Xxxxx
Title: President
FRESENIUS MEDICAL CARE
DEUTSCHLAND GMBH, as a Guarantor
By: /s/ XXX XXXXX
------------------------------
Name: Xxx Xxxxx
Title: Member of the Managing Board
By: /s/ XXXXXXXX XXXXX
------------------------------
Name: Xx. Xxxxxxxx Xxxxx
Title: Member of the Managing Board
128 EXECUTION
