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INDENTURE
Dated as of April 11, 2006
between
KRONOS INTERNATIONAL, INC.,
as Issuer,
and
THE BANK OF NEW YORK,
as Trustee,
6-1/2% Senior Secured Notes due 2013
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
310 (a)(1)...................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... N.A.
(a)(4)...................................................... N.A.
(a)(5)...................................................... 7.10
(b)......................................................... 7.3, 7.8, 7.10
(c)......................................................... N.A.
311 (a)......................................................... 7.11
(b)......................................................... 7.11
(c)......................................................... N.A.
312 (a)......................................................... 2.5
(b)......................................................... 13.2, 13.3
(c)......................................................... 13.2, 13.3
313 (a)......................................................... 7.6
(b)(1)...................................................... 7.6
(b)(2)...................................................... 7.6, 7.7
(c)......................................................... 7.6, 13.2
(d)......................................................... 7.6
314 (a)......................................................... 4.3, 4.4, 13.5
(b)......................................................... 11.2
(c)(1)...................................................... 4.4, 13.4
(c)(2)...................................................... 13.4
(c)(3)...................................................... 13.4
(d)......................................................... 11.4, 11.6, 11.9
(e)......................................................... 13.5
(f)......................................................... N.A.
315 (a)......................................................... 7.1, 7.2
(b)......................................................... 7.5
(c)......................................................... 7.1
(d)......................................................... 7.1
(e)......................................................... 6.11
316 (a)(last sentence).......................................... 2.9
(a)(1)(A)................................................... 6.5
(a)(1)(B)................................................... 6.4
(a)(2)...................................................... N.A.
(b)......................................................... 6.7
(c)......................................................... 2.12
317 (a)(1)...................................................... 6.8
(a)(2)...................................................... 6.9
(b)......................................................... 2.4
318 (a)......................................................... 13.1
(b)......................................................... N.A.
(c)......................................................... 13.1
N.A. means not applicable.
*This Cross-Reference Table shall not, for any purpose, be deemed a part of the
Indenture.
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions...............................................................................1
Section 1.2. Other Definitions........................................................................23
Section 1.3. Incorporation by Reference of Trust Indenture Act........................................24
Section 1.4. Rules of Construction....................................................................25
Section 1.5. Acts of Holders..........................................................................25
ARTICLE II.
THE NOTES
Section 2.1. Form and Dating..........................................................................26
Section 2.2. Execution and Authentication.............................................................27
Section 2.3. Registrar and Paying Agent...............................................................28
Section 2.4. Paying Agents to Hold Money in Trust.....................................................29
Section 2.5. Holder Lists.............................................................................29
Section 2.6. Transfer and Exchange....................................................................29
Section 2.7. Replacement Notes........................................................................37
Section 2.8. Outstanding Notes........................................................................38
Section 2.9. Treasury Notes...........................................................................38
Section 2.10. Temporary Notes..........................................................................38
Section 2.11. Cancellation.............................................................................39
Section 2.12. Defaulted Interest.......................................................................39
Section 2.13. Persons Deemed Owners....................................................................39
Section 2.14. "CUSIP", "ISIN" and "Common Code" Numbers................................................39
Section 2.15. Designation..............................................................................40
Section 2.16. Issuance of Additional Notes.............................................................40
ARTICLE III.
REDEMPTION AND PURCHASE
Section 3.1. Notices to Trustee.......................................................................41
Section 3.2. Selection of Notes.......................................................................41
Section 3.3. Notice of Redemption or Purchase.........................................................42
Section 3.4. Effect of Notice of Redemption or Purchase...............................................43
Section 3.5. Deposit of Redemption Price or Purchase Price............................................43
Section 3.6. Notes Redeemed or Purchased in Part......................................................44
Section 3.7. Optional Redemption......................................................................44
Section 3.8. Special Redemption.......................................................................44
Section 3.9. Redemption or Purchase upon Change of Control at the Option of the Company...............44
Section 3.10. Purchase upon Change of Control Offer....................................................45
Section 3.11. Purchase upon Application of Excess Proceeds.............................................46
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest........................................................48
Section 4.2. Maintenance of Office or Agency..........................................................48
Section 4.3. Reports to Holders.......................................................................49
Section 4.4. Compliance Certificate...................................................................50
Section 4.5. Taxes....................................................................................50
Section 4.6. Stay, Extension and Usury Laws...........................................................50
Section 4.7. Limitation on Restricted Payments........................................................50
Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries..............................................................54
Section 4.9. Limitation on Incurrence of Additional Indebtedness......................................55
Section 4.10. Limitation on Asset Sales................................................................55
Section 4.11. Limitations on Transactions with Affiliates..............................................58
Section 4.12. Limitation on Liens......................................................................59
Section 4.13. Conduct of Business......................................................................60
Section 4.14. Maintenance of Properties and Insurance..................................................60
Section 4.15. Offer to Purchase upon Change of Control.................................................61
Section 4.16. Limitation of Guarantees by Restricted Subsidiaries......................................62
Section 4.17. Provision of Security....................................................................62
Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries.................................63
Section 4.19. Payments to the Collateral Agent.........................................................63
Section 4.20. Corporate Existence......................................................................63
Section 4.21. Compliance with Laws.....................................................................64
ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation and Sale of Assets.................................................64
Section 5.2. Successor Corporation Substituted........................................................66
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default........................................................................66
Section 6.2. Acceleration.............................................................................67
Section 6.3. Other Remedies...........................................................................68
Section 6.4. Waiver of Past Defaults..................................................................69
Section 6.5. Control by Majority......................................................................69
Section 6.6. Limitation on Suits......................................................................69
Section 6.7. Rights of Holders of Notes to Receive Payment............................................70
Section 6.8. Collection Suit by Trustee...............................................................70
Section 6.9. Trustee May File Proofs of Claim.........................................................70
Section 6.10. Priorities...............................................................................71
Section 6.11. Undertaking for Costs....................................................................71
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee........................................................................71
Section 7.2. Rights of Trustee........................................................................72
Section 7.3. Individual Rights of Trustee.............................................................74
Section 7.4. Trustee's Disclaimer.....................................................................74
Section 7.5. Notice of Defaults.......................................................................74
Section 7.6. Reports by Trustee to Holders of the Notes...............................................74
Section 7.7. Compensation, Reimbursement and Indemnity................................................74
Section 7.8. Replacement of Trustee...................................................................76
Section 7.9. Successor Trustee by Merger, Etc.........................................................77
Section 7.10. Eligibility; Disqualification............................................................77
Section 7.11. Preferential Collection of Claims Against Company........................................77
Section 7.12. Concerning the Trustee and the Collateral................................................77
Section 7.13. Appointment of Co-Trustee................................................................78
Section 7.14. Trustee Not Liable for Losses or Damages.................................................79
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.................................79
Section 8.2. Legal Defeasance and Discharge...........................................................79
Section 8.3. Covenant Defeasance......................................................................80
Section 8.4. Conditions to Legal or Covenant Defeasance...............................................80
Section 8.5. Deposited Money and Government Securities to Be
Held in Trust; Other Miscellaneous Provisions. ........................................82
Section 8.6. Repayment to the Company.................................................................83
Section 8.7. Reinstatement............................................................................83
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes......................................................83
Section 9.2. With Consent of Holders of Notes.........................................................84
Section 9.3. Compliance with Trust Indenture Act......................................................85
Section 9.4. Revocation and Effect of Consents........................................................86
Section 9.5. Notation on or Exchange of Notes.........................................................86
Section 9.6. Trustee to Sign Amendment, Etc...........................................................86
ARTICLE X.
SATISFACTION AND DISCHARGE
Section 10.1. Satisfaction and Discharge...............................................................86
Section 10.2. Application of Trust Money...............................................................87
ARTICLE XI.
COLLATERAL AND SECURITY
Section 11.1. Security Documents.......................................................................87
Section 11.2. Recording, etc...........................................................................88
Section 11.3. Release of Collateral....................................................................89
Section 11.4. Satisfaction and Discharge; Defeasance...................................................90
Section 11.5. Additional Collateral....................................................................90
Section 11.6. Trust Indenture Act Requirements.........................................................90
Section 11.7. Authorization of Actions to be Taken by the Trustee or the Collateral Agent
Under the Security Documents...........................................................91
Section 11.8. Release Upon Termination of the Company's Obligations....................................91
Section 11.9. Intercreditor Agreement..................................................................92
Section 11.10. Limitation on Duty of Trustee and Collateral Agent of Collateral; Indemnification........92
ARTICLE XII.
APPLICATION OF TRUST MONIES
Section 12.1. Collateral Account.......................................................................92
Section 12.2. Investment of Trust Monies...............................................................93
ARTICLE XIII.
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls.............................................................93
Section 13.2. Notices..................................................................................93
Section 13.3. Communication by Holders of Notes with Other Holders of Notes............................95
Section 13.4. Certificate and Opinion as to Conditions Precedent.......................................95
Section 13.5. Statements Required in Certificate or Opinion............................................95
Section 13.6. Rules by Trustee and Agents..............................................................96
Section 13.7. No Personal Liability of Directors, Officers, Employees and Stockholders. 96
Section 13.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial..........................96
Section 13.9. No Adverse Interpretation of Other Agreements............................................97
Section 13.10. Judgment Currency........................................................................97
Section 13.11. Successors...............................................................................97
Section 13.12. Severability.............................................................................97
Section 13.13. Counterpart Originals....................................................................97
Section 13.14. Table of Contents, Headings, Etc.........................................................97
Section 13.15. Qualification of Indenture...............................................................98
EXHIBITS
Exhibit A Form of Series A Note
Exhibit B Form of Series B Note
Exhibit C(1) Form of Regulation S Certification
Exhibit C(2) Form of Certificate to Be Delivered upon Exchange or Registration of Transfer of Notes
Exhibit D Form of Certificate to Be Delivered in Connection with Transfers to Non QIB
Accredited Investors
Exhibit E Form of Certificate to Be Delivered in Connection with Transfers Pursuant to
Regulation S
INDENTURE
INDENTURE dated as of April 11, 2006 between Kronos International,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders (the "Holders" ) of the
Company's 6-1/2% Senior Secured Notes due 2013:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary of
the Company or at the time it merges or consolidates with or into the Company or
any of its Restricted Subsidiaries or assumed in connection with the acquisition
of assets from such Person and in each case not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation, except for Indebtedness of a Person or any of its Subsidiaries
that is repaid at the time such Person becomes a Restricted Subsidiary of the
Company or at the time it merges with or into the Company or any of its
Restricted Subsidiaries other than from the assets of the Company and its other
Restricted Subsidiaries.
"Additional Interest" means all additional interest then owing
pursuant to Section 4 of the Registration Rights Agreement or the comparable
section of any registration rights agreement entered into in connection with the
issuance of any Additional Notes.
"Additional Notes" means Notes having substantially identical terms
and conditions as the (euro)400,000,000 aggregate principal amount of the
Company's 6-1/2% Senior Secured Notes issued on the Issue Date, issued pursuant
to Article II and in compliance with Section 4.9 of this Indenture.
"Adjusted Bund Rate" means, with respect to any Redemption Date, the
mid-market yield, under the heading which represents the average for the
immediately prior week, appearing on Reuters page AABBUND01, or its successor,
for the maturity corresponding to April 15, 2013 (if no maturity date is within
three months before or after April 15, 2013, yields for the two published
maturities most closely corresponding to April 15, 2013 shall be determined and
the Bund yield shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month), plus 0.50%. The bund rate
shall be calculated on the third Business Day preceding such Redemption Date.
"Affiliate" means, with respect to any specified Person, any other
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person. The
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative of the
foregoing.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Premium" means, with respect to a Note at any Redemption
Date, the greater of (i) 1.0% of the principal amount of such Note and (ii) the
excess of (A) the present value at such Redemption Date of (1) the redemption
price of such Note on October 15, 2009 (such redemption price being that
described in Section 3.7) plus (2) all required remaining scheduled interest
payments due on such Note through October 15, 2009, computed using a discount
rate equal to the Adjusted Bund Rate, over (B) the principal amount of such Note
on such Redemption Date. Calculation of the Applicable Premium will be made by
the Company or on behalf of the Company by such Person as the Company shall
designate; provided, however, that such calculation shall not be a duty or
obligation of the Trustee.
"Asset Acquisition" means (1) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or of any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (2) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprise any division or line of business of
such Person or any other properties or assets of such Person other than in the
ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company of: (1) any Capital Stock of any Restricted Subsidiary of the Company;
or (2) any other property or assets of the Company or any Restricted Subsidiary
of the Company other than in the ordinary course of business; provided, however,
that asset sales or other dispositions shall not include: (a) a transaction or
series of related transactions for which the Company or its Restricted
Subsidiaries receive aggregate consideration of less than $2 million; (b) the
sale, lease, conveyance, disposition or other transfer of all or substantially
all of the assets of the Company as permitted under Section 5.1; (c) sales or
grants of licenses to use the patents, trade secrets, know-how and other
intellectual property of the Company or any of its Restricted Subsidiaries to
the extent that any such license does not prohibit the Company or any of its
Restricted Subsidiaries from using any material technologies licensed or require
the Company or any of its Restricted Subsidiaries to pay fees (other than de
minimis fees) for use of any material technologies; (d) the sale or discount, in
each case without recourse, of accounts receivable arising in the ordinary
course of business, but only in connection with the compromise or collection
thereof; (e) disposals or replacements of obsolete, surplus or unused equipment
in the ordinary course of business; (f) any Restricted Payment not prohibited by
Section 4.7 or that constitutes a Permitted Investment; and (g) Permitted
Affiliate Transactions.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or
state law for the relief of debtors or any analogous law of any other nation or
legal jurisdiction or any political subdivision thereof for the relief of
debtors.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day excluding Saturday, Sunday and any day
which is a legal holiday under the laws of New York, London, England, Germany or
Luxembourg or is a day on which banking institutions therein located are
authorized or required by law or other governmental action to close.
"Capital Stock" means:
(1) with respect to any Person that is a corporation, any and all
shares, interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock, including each class of
Common Stock and Preferred Stock of such Person, and all options, warrants
or other rights to purchase or acquire any of the foregoing; and
(2) with respect to any Person that is not a corporation, any and all
partnership, membership or other equity interests of such Person, and all
options, warrants or other rights to purchase or acquire any of the
foregoing.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means:
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the government of any member of the European Union on the
Issue Date or the Kingdom of Norway or the United States government or
issued by any agency of any of the foregoing governments and backed by the
full faith and credit of any such member of the European Union on the Issue
Date or Norway or the United States, in each case maturing within one year
from the date of acquisition thereof;
(2) marketable direct obligations issued by any member of the European
Union on the Issue Date or the Kingdom of Norway or any state of the United
States of America or the District of Columbia or any political subdivision
of any such state or District or any public instrumentality thereof
maturing within one year from the date of acquisition thereof and, at the
time of acquisition, having one of the two highest ratings obtainable from
either S&P or Moody's;
(3) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) certificates of deposit or bankers' acceptances maturing within
one year from the date of acquisition thereof and having, at the time of
acquisition, a rating of at least A-1 from S&P or at least P-1 from Moody's
and issued by any bank organized under the laws of any member of the
European Union on the Issue Date or the Kingdom of Norway or the United
States of America or any state thereof or the District of Columbia or any
U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250 million;
(5) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clause (1) above entered
into with any bank meeting the qualifications specified in clause (4)
above; and
(6) Investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
"Change of Control" means the occurrence of one or more of the
following events:
(1) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the assets
of the Company to any Person or group of related Persons (other than the
Permitted Holders) for purposes of Section 13(d) of the Exchange Act (a
"Group"), together with any Affiliates thereof (whether or not otherwise in
compliance with the provisions of this Indenture);
(2) the approval by the holders of Capital Stock of the Company of any
plan or proposal for the liquidation or dissolution of the Company (whether
or not otherwise in compliance with the provisions of this Indenture);
(3) any Person or Group (other than the Permitted Holders) shall
become the owner, directly or indirectly, beneficially or of record, of
shares representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Company; or
(4) the replacement of a majority of the Board of Directors of the
Company over a two-year period from the directors who constituted the Board
of Directors of the Company at the beginning of such period, and such
replacement shall not have been (A) approved by a vote of at least a
majority of the Board of Directors of the Company then still in office who
either were members of such Board of Directors at the beginning of such
period or whose election as a member of such Board of Directors was
previously so approved or (B) approved by the Permitted Holders so long as
the Permitted Holders then beneficially own a majority of the Capital Stock
of the Company.
"Clearstream" shall mean Clearstream Banking, Societe Anonyme,
Luxembourg.
"Collateral" means, collectively, all of the property pledged to the
Trustee or the Collateral Agent for their respective benefit as Trustee or
Collateral Agent or for the benefit of the Holders, together with all property
that is from time to time subject to the Security Interest of the Security
Documents.
"Collateral Agency Agreement" means the collateral agency agreement,
dated April [ ], 2006, among The Bank of New York, as Trustee, the Company and
U.S. Bank, N.A., as Collateral Agent, as such shall be amended, supplemented or
replaced from time to time.
"Collateral Agent" means U.S. Bank, N.A., together with any successors
and assigns.
"Commission" means the Securities and Exchange Commission.
"Commodity Agreements" means any commodity futures contract, commodity
option or other similar agreement or arrangement entered into by the Company or
any of its Restricted Subsidiaries and designed to protect the Company or any of
its Restricted Subsidiaries against fluctuations in the price of commodities
actually at that time used in the ordinary course of business of the Company or
its Restricted Subsidiaries.
"Common Depository" means initially The Bank of New York, London
Branch (or its nominee) or such other common depository for a Depositary as may
be appointed by such Depositary from time to time.
"Common Stock" of any Person means any and all shares, interests or
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means Kronos International, Inc., a Delaware corporation,
until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter means such successor Person.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of:
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced thereby:
(a) all income taxes of such Person and its Restricted
Subsidiaries paid or accrued in accordance with GAAP for such period;
(b) Consolidated Interest Expense; and
(c) Consolidated Non-cash Charges,
all as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending prior to the date of the
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the "Transaction
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to:
(1) the incurrence or repayment of any Indebtedness of such Person or
any of its Restricted Subsidiaries (and the application of the proceeds
thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness
in the ordinary course of business for working capital purposes pursuant to
working capital facilities, occurring during the Four Quarter Period or at
any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the
case may be (and the application of the proceeds thereof), occurred on the
first day of the Four Quarter Period; and
(2) any asset sales (other than disposals or replacements of obsolete
or unused equipment in the ordinary course of business) or other
dispositions or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a
result of such Person or one of its Restricted Subsidiaries (including any
Person who becomes a Restricted Subsidiary as a result of the Asset
Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness and also including any Consolidated EBITDA (including any pro
forma expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Exchange Act) attributable to the assets which are
the subject of the Asset Acquisition or asset sale or other disposition
during the Four Quarter Period) occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such asset sale or other disposition
or Asset Acquisition (including the incurrence, assumption or liability for
any such Acquired Indebtedness) occurred on the first day of the Four
Quarter Period. If such Person or any of its Restricted Subsidiaries
directly or indirectly guarantees Indebtedness of a third Person, the
preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person
had directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes
of determining the denominator (but not the numerator) of this "Consolidated
Fixed Charge Coverage Ratio":
(1) interest on outstanding Indebtedness determined on a fluctuating
basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per
annum equal to the rate of interest on such Indebtedness in effect on the
Transaction Date; and
(2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered
by agreements relating to Interest Swap Obligations, shall be deemed to
accrue at the rate per annum resulting after giving effect to the operation
of such agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of:
(1) Consolidated Interest Expense; plus
(2) the product of (x) the amount of all dividend payments on any
series of Preferred Stock of such Person (other than dividends paid in
Qualified Capital Stock) paid, accrued or scheduled to be paid or accrued
during such period times (y) a fraction, the numerator of which is one and
the denominator of which is one minus the then current effective
consolidated federal, state and local income tax rate of such Person,
expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum of, without duplication:
(1) the aggregate of the interest expense of such Person and its
Restricted Subsidiaries for such period determined on a consolidated basis
in accordance with GAAP, including without limitation: (a) any amortization
of debt discount and amortization or write-off of deferred financing costs;
(b) the net cash costs under Interest Swap Obligations; (c) all capitalized
interest; and (d) the interest portion of any deferred payment obligation;
and
(2) the interest component of Capitalized Lease Obligations paid,
accrued and/or scheduled to be paid or accrued by such Person and its
Restricted Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom:
(1) after-tax gains from Asset Sales (without regard to the $2 million
limitation set forth in the definition thereof) or abandonments or reserves
relating thereto;
(2) after-tax items classified as extraordinary gains in accordance
with GAAP;
(3) net after-tax expenses incurred by the Company to redeem its
8-7/8% senior secured notes due 2009, including but not limited to the full
redemption premium and write-off of any deferred financing costs or
unamortized premium related thereto, in each case to the extent included in
the calculation of net income;
(4) the net income of any Person acquired in a "pooling of interests"
transaction accrued prior to the date it becomes a Restricted Subsidiary of
the referent Person or is merged or consolidated with the referent Person
or any Restricted Subsidiary of the referent Person;
(5) the net income (but not loss) of any Restricted Subsidiary of the
referent Person to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is restricted by
a contract, operation of law or otherwise; provided, however, that if the
Restricted Subsidiary is able despite any such restriction to distribute
income or otherwise transfer cash to the referent Person by way of an
intercompany loan or otherwise, then such income or cash, to the extent of
such ability, shall not be excluded pursuant to this clause (4);
(6) the net income of any Person, other than a Restricted Subsidiary
of the referent Person, except to the extent of cash dividends or
distributions paid to the referent Person or to a Wholly Owned Restricted
Subsidiary of the referent Person by such Person;
(7) income or loss attributable to discontinued operations (including,
without limitation, operations disposed of during such period whether or
not such operations were classified as discontinued); provided, however,
that such income or loss shall be included in Consolidated Net Income for
the purpose of calculating Consolidated Net Income of the Company for
Section 4.7(1)(iii)(v);
(8) in the case of a successor to the referent Person by consolidation
or merger or as a transferee of the referent Person's assets, any earnings
of the successor corporation prior to such consolidation, merger or
transfer of assets;
(9) non-cash charges relating to compensation expense in connection
with benefits provided under employee stock option plans, restricted stock
option plans and other employee stock purchase or stock incentive plans;
and
(10) income or loss attributable solely to fluctuations in currency
values and related tax effects, in either case related to notes and
accounts payable existing prior to or as of the Issue Date and payable to
Affiliates of the Company.
"Consolidated Net Worth" of any Person means the consolidated
stockholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP, less (without duplication) amounts attributable to
Disqualified Capital Stock of such Person.
"Consolidated Non-cash Charges" means, with respect to any Person, for
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges
constituting an extraordinary item or loss or any such charge which requires an
accrual of or a reserve for cash charges for any future period).
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.2 of this Indenture or such other address as to
which the Trustee may give notice to the Company.
"Credit Agreement" means the Credit Agreement dated June 25, 2002, as
amended through June 14, 2005, among Kronos Titan GmbH, Kronos Europe S.A./N.V.,
Kronos Titan A/S, Kronos Norge A/S, Titania A/S and Kronos Denmark ApS, the
lenders party thereto in their capacities as lenders thereunder, and Deutsche
Bank AG, as mandated Lead Arranger, and Deutsche Bank Luxembourg S.A., as Agent
and Security Agent, together with the related documents thereto (including,
without limitation, any guarantee agreements and security documents), in each
case as such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder (provided that such increase in borrowings is permitted by Section
4.9 of this Indenture) or adding Restricted Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any portion of the
Indebtedness under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depositary" means Euroclear or Clearstream or a successor clearing
agency to either or both of them.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable, in either case at the option of the
holder thereof), or upon the happening of any event (other than an event which
would constitute a Change of Control), matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole
option of the holder thereof (except, in each case, upon the occurrence of a
Change of Control) on or prior to the final maturity date of the Notes.
"Euro" or "(euro)" means the currency introduced at the start of the
third stage of economic and monetary union pursuant to the Treaty of Rome
establishing the European Community, as amended by the Treaty on European Union,
signed at Maastricht on February 7, 1992.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute or statutes thereto.
"Exchange Offer" means the offer that shall be made by the Company
pursuant to the Registration Rights Agreement to exchange the Series A Notes for
the Series B Notes.
"fair market value" means, with respect to any asset or property, the
price which could be negotiated in an arm's-length, free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of whom is
under undue pressure or compulsion to complete the transaction. Fair market
value shall be determined by the Board of Directors of the Company acting
reasonably and in good faith and shall be evidenced by a Board Resolution of the
Board of Directors of the Company delivered to the Trustee.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Government Securities" means securities issued or directly and fully
guaranteed or insured by the government of any member of the European Union or
the Kingdom of Norway on the Issue Date rated AAA or above.
"Guarantee" means the guarantee of any Guarantor of the obligations of
the Company under this Indenture and the Notes that may be in effect from time
to time.
"Guarantor" means each of the Company's Restricted Subsidiaries that
in the future executes a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms of this Indenture as a Guarantor;
provided that any Person constituting a Guarantor as described above shall cease
to constitute a Guarantor when its respective Guarantee is released in
accordance with the terms of this Indenture.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means with respect to any Person, without duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations and all
Obligations under any title retention agreement (but excluding from all of
the foregoing trade accounts payable and other accrued liabilities arising
in the ordinary course of business);
(5) all Obligations for the reimbursement of any obligor on any letter
of credit, banker's acceptance or similar credit transaction;
(6) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (1) through (5) above and clause (8)
below;
(7) all Obligations of any other Person of the type referred to in
clauses (1) through (6) which are secured by any Lien on any property or
asset of such Person, the amount of such Obligation being deemed to be the
lesser of the fair market value of such property or asset or the amount of
the Obligation so secured;
(8) all Obligations under Currency Agreements, Interest Swap
Obligations of such Person and Commodity Agreements; and
(9) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference
and its maximum fixed repurchase price, but excluding accrued dividends, if
any.
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value shall be determined reasonably and in good
faith by the Board of Directors of the issuer of such Disqualified Capital
Stock.
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Independent Financial Advisor" means a firm: (1) which does not, and
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company; and (2) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchaser" means Deutsche Bank AG London.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
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 by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude (i) extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be, provided that nothing in this clause shall
prevent the Company or any Restricted Subsidiary from providing such
concessionary trade terms as management deems reasonable in the circumstances;
and (ii) loans or extensions of credit which otherwise are Permitted Affiliate
Transactions. If the Company or any Restricted Subsidiary of the Company sells
or otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, at least 50% of
the outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Issue Date" means the date of original issuance of the Notes.
"Kronos" means Kronos Worldwide, Inc., a Delaware corporation, and its
successors.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Material Adverse Effect" means, in the aggregate, a material adverse
effect on the business, condition (financial or otherwise) or results of
operations of the Company and its Restricted Subsidiaries taken as a whole.
"Moody's" means Moody's Investors Service, Inc. or any successor
rating agency.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of:
(1) reasonable out-of-pocket expenses and fees relating to such Asset
Sale (including, without limitation, legal, accounting and investment
banking fees and sales commissions);
(2) taxes paid or payable or reasonably reserved for after taking into
account any reduction in consolidated tax liability due to available tax
credits or deductions and any tax sharing arrangements;
(3) repayment of Indebtedness that is secured by the property or
assets that are the subject of such Asset Sale; and
(4) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with such Asset Sale and retained
by the Company or any Restricted Subsidiary, as the case may be, after such
Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated
with such Asset Sale.
"NL Industries" means NL Industries, Inc., a New Jersey corporation,
and its successors.
"Notes" means the Series A Notes and the Series B Notes, if any, that
are issued under this Indenture, as amended or supplemented from time to time.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, (a) with respect to any Person that is a corporation,
the Chairman of the Board, the Chief Executive Officer, the President, the Chief
Operating Officer, the Chief Financial Officer, the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or any Vice-President of such Person
and (b) with respect to any other Person, the individuals selected by such
Person to perform functions similar to those of the officers listed in clause
(a) of this definition.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the Chief Executive
Officer, the Chief Financial Officer, the Treasurer or the principal accounting
officer of the Company, that meets the requirements of Sections 13.4 and 13.5 of
this Indenture.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
13.4 and 13.5 of this Indenture. The counsel may be an employee of or counsel to
the Company or any Subsidiary of the Company.
"Permitted Holder(s)" means (1) Harold C. Simmons ("Simmons"), (2) any
trust established primarily for the benefit of Simmons or members of his family
(including his spouse and/or his descendants (whether natural or adopted)) or
both ("Simmons Trust"), (3) trustees, acting in such capacity, or beneficiaries
of a Simmons Trust to the extent of the beneficial interest therein and for so
long as such Simmons Trust exists ("Simmons Beneficiaries and Trustees") , (4)
any employee plan or pension fund of the Company or any of its Subsidiaries, (5)
any Person holding Capital Stock for or pursuant to the terms of any such plan
or fund and (6) any Person controlled by, or any group made up of, any one or
more of the Persons specified in (1) through (5) above.
"Permitted Indebtedness" means, without duplication, each of the
following:
(1) Indebtedness under the Notes (other than Additional Notes) issued
in the Offering in an aggregate principal amount not to exceed (euro)400
million and Guarantees in respect thereof;
(2) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount at any time outstanding not to exceed (euro)80
million less the amount of any principal payments made by the Company under
the Credit Agreement with the Net Cash Proceeds of any Asset Sale (which
are accompanied by a corresponding permanent commitment reduction) pursuant
to Section 4.10(1)(c)(i) or under clause (3) of the definition of Net Cash
Proceeds;
(3) other Indebtedness of the Company and its Restricted Subsidiaries
outstanding on the Issue Date;
(4) Interest Swap Obligations of the Company or any Restricted
Subsidiary of the Company covering Indebtedness of the Company or any of
its Restricted Subsidiaries; provided, however, that such Interest Swap
Obligations are entered into to protect the Company and its Restricted
Subsidiaries from fluctuations in interest rates on its outstanding
Indebtedness to the extent the notional principal amount of such Interest
Swap Obligation does not, at the time of the incurrence thereof, exceed the
principal amount of the Indebtedness to which such Interest Swap Obligation
relates;
(5) Indebtedness under Commodity Agreements and Currency Agreements;
provided that in the case of Currency Agreements which relate to
Indebtedness, such Currency Agreements do not increase the Indebtedness or
trade payables (as applicable) of the Company and its Restricted
Subsidiaries outstanding other than as a result of fluctuations in foreign
currency exchange rates or by reason of fees, indemnities and compensation
payable thereunder;
(6) Indebtedness of a Restricted Subsidiary of the Company to the
Company or to a Restricted Subsidiary of the Company for so long as such
Indebtedness is held by the Company or a Restricted Subsidiary of the
Company, in each case subject to no Lien held by a Person other than the
Company or a Restricted Subsidiary of the Company or lenders in respect of
the Credit Agreement or other Permitted Indebtedness; provided that if as
of any date any Person other than the Company or a Restricted Subsidiary of
the Company owns or holds any such Indebtedness or any Person other than
the Company or a Restricted Subsidiary of the Company or lenders in respect
of the Credit Agreement or other Permitted Indebtedness holds a Lien in
respect of such Indebtedness, such date shall be deemed the incurrence of
Indebtedness not constituting Permitted Indebtedness by the issuer of such
Indebtedness pursuant to this clause (6);
(7) Indebtedness of the Company to a Restricted Subsidiary of the
Company for so long as such Indebtedness is held by a Restricted Subsidiary
of the Company, in each case subject to no Lien other than a Lien of the
lenders in respect of the Credit Agreement or other Permitted Indebtedness
of such Restricted Subsidiary; provided that if as of any date any Person
other than a Restricted Subsidiary of the Company owns or holds any such
Indebtedness or any Person other than the lenders in respect of the Credit
Agreement or other Permitted Indebtedness of such Restricted Subsidiary
holds a Lien in respect of such Indebtedness, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness by the
Company pursuant to this clause (7);
(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
Indebtedness is extinguished within two Business Days of incurrence;
(9) Indebtedness of the Company or any of its Restricted Subsidiaries
in respect of bid, payment or performance bonds, bankers' acceptances,
workers' compensation claims, surety or appeal bonds, payment obligations
in connection with self-insurance or similar obligations, and bank
overdrafts (and letters of credit in respect thereof) and commercial
letters of credit, in all such cases in the ordinary course of business;
(10) Refinancing Indebtedness;
(11) additional Indebtedness of the Company in an aggregate principal
amount not to exceed $20 million at any one time outstanding;
(12) additional Indebtedness of one or more Restricted Subsidiaries of
the Company in an aggregate principal amount not to exceed $20 million at
any one time outstanding (which amount may, but need not, be incurred in
whole or in part under the Credit Agreement);
(13) Indebtedness of the Company or any Restricted Subsidiary of the
Company consisting of guarantees, indemnities or obligations in respect of
customary purchase price adjustments in connection with the acquisition or
disposition of assets; and
(14) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business not to exceed $15 million at
any one time outstanding.
For purposes of determining compliance with Section 4.9 of this
Indenture, in the event that an item of Indebtedness meets the criteria of more
than one of the categories of Permitted Indebtedness described in clauses (1)
through (14) above or is entitled to be incurred pursuant to the Consolidated
Fixed Charge Coverage Ratio provisions of Section 4.9 of this Indenture, the
Company shall, in its sole discretion, classify (or later reclassify) such item
of Indebtedness in any manner that complies with Section 4.9 of this Indenture.
Accrual of interest, accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms, the payment of dividends on Disqualified Capital Stock in
the form of additional shares of the same class of Disqualified Capital Stock,
and changes in the amount outstanding due solely to fluctuations in currency
exchange rates, will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Capital Stock for purposes of Section 4.9 of this
Indenture.
"Permitted Investments" means, without duplication:
(1) Investments by the Company or any Restricted Subsidiary of the
Company in any Person that is or will become immediately after such
Investment a Restricted Subsidiary of the Company or that will merge or
consolidate into the Company or a Restricted Subsidiary of the Company;
(2) Investments in the Company by any Restricted Subsidiary of the
Company;
(3) Investments in cash and Cash Equivalents;
(4) loans and advances to employees and officers of the Company and
its Restricted Subsidiaries in the ordinary course of business for bona
fide business purposes;
(5) Commodity Agreements, Currency Agreements and Interest Swap
Obligations entered into in the ordinary course of the Company's or its
Restricted Subsidiaries' businesses and otherwise in compliance with this
Indenture;
(6) additional Investments not to exceed $20 million at any one time
outstanding;
(7) Investments existing on the Issue Date;
(8) Investments resulting from settlements or compromises of accounts
receivable or trade payables in the ordinary course of business,
Investments in securities of trade creditors or customers received pursuant
to any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such trade creditors or customers or in good faith
settlements of delinquent obligations of such trade creditors or customers;
(9) Investments made by the Company or its Restricted Subsidiaries as
a result of consideration received or investments deemed made in connection
with an Asset Sale made in compliance with Section 4.10 of this Indenture;
(10) Investments represented by guarantees that are otherwise
permitted under this Indenture;
(11) Investments the payment for which is Qualified Capital Stock of
the Company; and
(12) Investments by the Company consisting of loans to one or more
officers, directors or other employees of the Company or any of its
Subsidiaries in connection with such officers', directors' or employees'
acquisition of shares of Capital Stock of the Company or its Affiliates,
pursuant to the exercise of stock options or in connection with other
equity-based compensation.
"Permitted Liens" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to GAAP;
(2) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of business for sums not yet delinquent or
being contested in good faith, if such reserve or other appropriate
provision, if any, as shall be required by GAAP shall have been made in
respect thereof;
(3) Liens incurred or deposits made in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
types of social security, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, performance bonds, leases,
government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money), or to secure letters of credit, bankers' acceptances, payment
obligations in connection with self-insurance or similar obligations and
bank overdrafts (and letters of credit in respect thereof), in each case in
the ordinary course of business;
(4) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment shall not have
been finally terminated or the period within which such proceedings may be
initiated shall not have expired;
(5) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company
or any of its Restricted Subsidiaries;
(6) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or
assets which is not leased property subject to such Capitalized Lease
Obligation;
(7) purchase money Liens to finance the construction, acquisition,
repair of or improvements or additions to property or assets of the Company
or any Restricted Subsidiary of the Company, in each case in the ordinary
course of business; provided, however, that (a) the related purchase money
Indebtedness shall not exceed the cost of such property or assets and shall
not be secured by any property or assets of the Company or any Restricted
Subsidiary of the Company other than the property and assets so acquired
and (b) the Lien securing such Indebtedness shall be created within 90 days
of such construction, acquisition, repair, improvement or addition;
(8) Liens upon specific items of inventory or other goods and proceeds
of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods;
(9) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit in the ordinary course of business and
products and proceeds thereof;
(10) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual, or warranty requirements of the
Company or any of its Restricted Subsidiaries, including rights of offset
and set-off;
(11) Liens securing Interest Swap Obligations that relate to
Indebtedness that is otherwise permitted under this Indenture;
(12) Liens securing Indebtedness under Commodity Agreements or
Currency Agreements;
(13) Liens securing Acquired Indebtedness incurred in accordance with
Section 4.9 of this Indenture; provided that:
(a) such Liens secured such Acquired Indebtedness at the time of
and prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company and were not granted
in connection with, or in anticipation of, the incurrence of such
Acquired Indebtedness by the Company or a Restricted Subsidiary of the
Company; and
(b) such Liens do not extend to or cover any property or assets
of the Company or of any of its Restricted Subsidiaries other than the
property or assets that secured the Acquired Indebtedness prior to the
time such Indebtedness became Acquired Indebtedness of the Company or
a Restricted Subsidiary of the Company;
(14) leases, subleases, licenses and sublicenses granted to others
that do not materially interfere with the ordinary course of business of
the Company and its Restricted Subsidiaries;
(15) banker's Liens, rights of setoff and similar Liens with respect
to cash and Cash Equivalents on deposit in one or more bank accounts in the
ordinary course of business;
(16) Liens arising from filing Uniform Commercial Code financing
statements (or similar or equivalent notice-type filings in jurisdictions
in which the Uniform Commercial Code has not been adopted or adopted in
substantial part) regarding leases;
(17) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(18) Liens in favor of the Company securing Indebtedness owed to the
Company by one or more of its Subsidiaries;
(19) rights of customers with respect to inventory which arise from
deposits and progress payments made in the ordinary course of business; and
(20) escrow agreements and similar arrangements with respect to
Indebtedness permitted to be incurred by the Company or its Restricted
Subsidiaries pursuant to clause (13) of the definition of Permitted
Indebtedness.
"Person" means an individual, partnership, corporation, limited
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Primary Obligations" means, for the purpose of Section 4.19 of this
Indenture, any sums owed by the Company to a Holder, the Trustee, the Collateral
Agent and all other agents under the Notes and this Indenture.
"Public Equity Offering" means an underwritten public offering of
Qualified Capital Stock of the Company or Kronos pursuant to a registration
statement filed with the Commission in accordance with the Securities Act (or
pursuant to a similar or reasonably equivalent process in the European Union or
in any one or more states that are members of the European Union as of the Issue
Date or in Norway); provided that, in the event of a Public Equity Offering by
Kronos, such issuer directly or indirectly contributes to the equity capital of
the Company the portion of the net cash proceeds of such Public Equity Offering
necessary to pay the aggregate redemption price (plus accrued interest to the
date of redemption) of the Notes to be redeemed pursuant to Section 3.8 of this
Indenture.
"Purchase Date" means, with respect to any Note to be purchased, the
date fixed for such purchase by or pursuant to this Indenture.
"Purchase Money Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation, construction or improvement, of property or equipment.
"Purchase Price" means the amount payable for the purchase of any Note
on a Purchase Date, exclusive of accrued and unpaid interest and Additional
Interest (if any) thereon to the Purchase Date, unless otherwise specifically
provided.
"QIB" means a qualified institutional buyer as defined in Rule 144A
under the Securities Act.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Redemption Date" means, with respect to any Note to be redeemed, the
date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means the amount payable for the redemption of any
Note on a Redemption Date, exclusive of accrued and unpaid interest and
Additional Interest (if any) thereon to the Redemption Date, unless otherwise
specifically provided.
"Refinance" means, in respect of any security or Indebtedness, to
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
Restricted Subsidiary of the Company of Indebtedness existing on the Issue Date
or incurred in accordance with Section 4.9 of this Indenture (other than
pursuant to clause (2), (4), (5), (6), (7), (8), (9), (11), (12), (13) or (14)
of the definition of Permitted Indebtedness), in each case that does not:
(1) result in an increase in the aggregate principal amount of
Indebtedness of such Person as of the date of such proposed Refinancing
(plus the amount of any premium required to be paid under the terms of the
instrument governing such Indebtedness and plus the amount of reasonable
expenses incurred by the Company in connection with such Refinancing); or
(2) create Indebtedness with: (a) a Weighted Average Life to Maturity
that is less than the Weighted Average Life to Maturity of the Indebtedness
being Refinanced; or (b) a final maturity earlier than the final maturity
of the Indebtedness being Refinanced; provided that (x) if such
Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company and
(y) if such Indebtedness being Refinanced is subordinate or junior to the
Notes, then such Refinancing Indebtedness shall be subordinate to the Notes
at least to the same extent and in the same manner as the Indebtedness
being Refinanced.
"Registration Rights Agreement" means the registration rights
agreement dated as of the Issue Date between the Company and the Initial
Purchaser.
"Regulation S" means Regulation S as promulgated under the Securities
Act.
"Responsible Officer" means, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such Person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for administration
of this Indenture.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"S&P" means Standard & Poor's Rating Group, a division of McGraw Hill,
Inc., or any successor rating agency.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of the Company of any
property, whether owned by the Company or any Restricted Subsidiary of the
Company at the Issue Date or later acquired, which has been or is to be sold or
transferred by the Company or such Restricted Subsidiary of the Company to such
Person or to any other Person from whom funds have been or are to be advanced by
such Person on the security of such Property.
"Security Documents" means, collectively, the pledge agreements and
all other security agreements or instruments evidencing or creating any security
interests in favor of the Collateral Agent or the Trustee for their respective
benefit as Collateral Agent or Trustee or for the benefit of the Holders in all
or any portion of the Collateral, in each case, as amended, amended and
restated, extended, renewed, supplemented or otherwise modified from time to
time, in accordance with the terms thereof and this Indenture.
"Security Interest" means the Liens on the Collateral created by the
Security Documents in favor of the Collateral Agent or the Trustee, for their
respective benefit or for the benefit of the Holders.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Series A Notes" means (i) (euro)400,000,000 aggregate principal
amount of 6-1/2% Senior Secured Notes due 2013, issued on the Issue Date and
(ii) Additional Notes, if any, issued from time to time in the form of 6-1/2%
Senior Secured Notes due 2013 in a transaction exempt from the registration
requirements of the Securities Act, in each case substantially in the form of
Exhibit A and containing a Private Placement Legend.
"Series B Notes" means (i) notes issued by the Company hereunder
containing terms identical to the Series A Notes (except that (A) interest
thereon shall accrue from the last date on which interest was paid on the Series
A Notes or, if no such interest has been paid, from the date of original
issuance, (B) the legend or legends relating to transferability and other
related matters set forth on the Series A Notes shall be removed or
appropriately altered, and (C) as otherwise set forth herein), to be offered to
Holders of Series A Notes in exchange therefor pursuant to the Exchange Offer or
any exchange offer specified in any registration rights agreement relating to
the Additional Notes and (ii) Additional Notes, if any, issued from time to time
in the form of 6-1/2% Senior Secured Notes due 2013 in a transaction subject to
the registration requirements of the Securities Act, in each case substantially
in the form of Exhibit B.
"Significant Subsidiary", with respect to any Person, means any
Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Exchange Act.
"Subsidiary," with respect to any Person, means:
(1) any corporation of which the outstanding Capital Stock having at
least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned, directly
or indirectly, by such Person; or
(2) any other Person of which at least a majority of the voting
interest under ordinary circumstances is at the time, directly or
indirectly, owned by such Person.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA; provided that in the event the Trust Indenture Act of 1939 is
amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Transfer Restricted Security" means a Note that is a restricted
security as defined in Rule 144(a)(3) under the Securities Act.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture, and
thereafter means the successor serving hereunder.
"Trust Monies" means all cash and Cash Equivalents received by the
Trustee or a Collateral Agent:
(1) pursuant to the Security Documents;
(2) as proceeds of any sale or other disposition of all or any part of
the Collateral by or on behalf of the Trustee or the Collateral Agent or
any collection, recovery, receipt, appropriation or other realization of or
from all or any part of the Collateral pursuant to this Indenture or any of
the Security Documents or otherwise; or
(3) for application as provided in the relevant provisions of this
Indenture or any Security Documents for which disposition is not otherwise
specifically provided for in this Indenture or in any Security Document;
provided, however, that Trust Monies shall in no event include any property
deposited with the Trustee for any redemption, legal defeasance or covenant
defeasance of Notes, for the satisfaction and discharge of this Indenture or to
pay the purchase price of Notes pursuant to a Change of Control Offer or Asset
Sale Offer.
"Unrestricted Subsidiary" of any Person means:
(1) any Subsidiary of such Person that at the time of determination
shall be or continue to be designated an Unrestricted Subsidiary by the
Board of Directors of such Person in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary of the Company unless such Subsidiary owns any
Capital Stock of, or owns or holds any Lien on any property of, the Company or
any Restricted Subsidiary of the Company; provided that:
(1) the Company certifies to the Trustee that such designation
complies with Section 4.7 of this Indenture; and
(2) each Subsidiary of the Company to be so designated and each of its
Subsidiaries has not at the time of designation, and does not thereafter,
create, incur, issue, assume, guarantee or otherwise become directly or
indirectly liable with respect to any Indebtedness pursuant to which the
lender has recourse to any of the assets of the Company or any of its
Restricted Subsidiaries.
The Board of Directors of the Company may designate any Unrestricted
Subsidiary of the Company to be a Restricted Subsidiary of the Company only if:
(1) immediately after giving effect to such designation, the Company
is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.9 of this Indenture;
and
(2) immediately before and immediately after giving effect to such
designation, no Default or Event of Default shall have occurred and be
continuing. Any such designation by the Board of Directors shall be
evidenced to the Trustee by promptly filing with the Trustee a copy of the
Board Resolution giving effect to such designation and an Officers'
Certificate certifying that such designation complied with the foregoing
provisions.
"U.S. Person" means any U.S. Person as defined in Regulation S.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Wholly
Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary of such Person.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person; provided,
however, that Societe Industrielle du Titane and Kronos Titan-GmbH shall be
deemed to be a Wholly Owned Subsidiary of the Company for all purposes of this
Indenture so long as the ownership of outstanding voting securities of each such
Subsidiary by the Permitted Holders does not decrease after the Issue Date
(other than in respect of directors' qualifying shares or in respect of an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law).
Section 1.2. Other Definitions.
Term Defined in Section
---- ------------------
"Act" 1.5
"Affiliate Transaction"............................ 4.11
"Agent Members".................................... 2.6
"Certificated Notes"............................... 2.1
"Change of Control Offer".......................... 4.15
"Change of Control Payment Date"................... 3.10
"Covenant Defeasance".............................. 8.3
"Collateral Account"............................... 12.1
"Event of Default"................................. 6.1
"Foreign Collateral"............................... 7.12
"Foreign Person"................................... 2.6
"Global Notes"..................................... 2.1
"incur"............................................ 4.9
"Institutional Accredited Investors"............... 2.1
"Judgment Currency"................................ 13.10
"Legal Defeasance"................................. 8.2
"Luxembourg Paying Agent".......................... 2.3
"Net Proceeds Offer"............................... 4.10
"Net Proceeds Offer Amount"........................ 4.10
"Net Proceeds Offer Trigger Date".................. 4.10
"Offshore Certificated Notes"...................... 2.1
"Parallel Obligations"............................. 4.19
"Paying Agent"..................................... 2.3
"Permanent Regulation S Global Note"............... 2.1
"Permitted Affiliate Transaction".................. 4.11
"Private Placement Legend"......................... 2.6
"Reference Date"................................... 4.7
"Registrar"........................................ 2.3
"Regulation S Global Note"......................... 2.1
"Released Collateral".............................. 11.3
"Release Notice"................................... 11.3
"Replacement Assets"............................... 4.10
"Restricted Payment"............................... 4.7
"Rule 144A Global Note"............................ 2.1
"Special Redemption"............................... 3.8
"Surviving Entity"................................. 5.1
"Temporary Regulation S Global Note"............... 2.1
"U.S. Certificated Notes".......................... 2.1
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP in the United States;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act, the
Exchange Act and the TIA shall be deemed to include substitute, replacement
and successor sections or rules adopted by the Commission from time to
time.
Section 1.5. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing or
bound by 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 7.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(2) 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 any 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 or her the execution thereof.
Where such execution is by an officer of a corporation or a member of a
partnership, on behalf of such corporation or partnership, such certificate or
affidavit shall also constitute sufficient proof of his or her authority.
(3) The ownership of Notes shall be proved by the register maintained
by the Registrar.
(4) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Note.
(5) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its sole option, by or pursuant to a Board Resolution, fix in advance a
record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding securities shall be computed as of such record
date.
ARTICLE II.
THE NOTES
Section 2.1. Form and Dating.
The Series A Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
in addition to those set forth in Exhibit A hereto. The Series B Notes shall be
substantially in the form of Exhibit B hereto. Each Note shall be dated the date
of its authentication. The Notes shall be in denominations of (euro)50,000 and
(euro)1,000 increments thereof.
The terms and provisions contained in the Notes and Guarantees shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of a single permanent global Note in registered form,
substantially in the form set forth in Exhibit A (the "Rule 144A Global Note"),
deposited with the Common Depository, as custodian for the Depositary, and
registered in the name of the Common Depository or its nominee, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Rule 144A Global Note may from time to time be
increased or decreased by adjustments made on the records of the Common
Depository, as custodian for the Depositary or its nominee, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Note in registered form substantially in the form set forth in Exhibit A (the
"Temporary Regulation S Global Note"), deposited with the Common Depository, as
custodian for the Depositary, registered in the name of the Common Depository or
its nominee for the accounts of Euroclear and Clearstream, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. At any time
following 40 days after the later of the commencement of the offering of the
Notes and the Issue Date, upon receipt by the Trustee and the Company of a duly
executed certificate substantially in the form of Exhibit C(1) hereto, a single
permanent Global Note in registered form substantially in the form set forth in
Exhibit A (the "Permanent Regulation S Global Note," and together with the
Temporary Regulation S Global Note, the "Regulation S Global Note") duly
executed by the Company and authenticated by the Trustee, as hereinafter
provided shall be deposited with the Common Depository, as custodian for the
Depositary, and the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Regulation S Global Note in an
amount equal to the principal amount of the beneficial interest in the
Regulation S Global Note transferred.
Notes offered and sold to institutional accredited investors (as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act)
("Institutional Accredited Investors") shall be issued in the form of permanent
U.S. Certificated Notes in registered form in substantially the form set forth
in Exhibit A (the "U.S. Certificated Notes"). Securities issued pursuant to
Section 2.6 in exchange for interests in the Rule 144A Global Note or the
Regulation S Global Note shall be in the form of permanent Certificated Notes in
registered form substantially in the form set forth in Exhibit A (the "Offshore
Certificated Notes").
The Offshore Certificated Notes and U.S. Certificated Notes are
sometimes collectively herein referred to as the "Certificated Notes." The Rule
144A Global Note and the Regulation S Global Note are sometimes referred to
herein as the "Global Notes."
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and "General Terms and
Conditions of Clearstream" and the "Customer Handbook" of Clearstream shall be
applicable to interests in the Global Notes that are held through participants
through Euroclear or Clearstream.
Section 2.2. Execution and Authentication.
Two Officers of the Company shall sign the Notes for the Company by
manual or facsimile signature. The seal of the Company shall be reproduced on
the Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Indenture.
The Trustee, upon a written order of the Company signed by two
Officers of the Company, together with the other documents required by Sections
13.4 and 13.5 of this Indenture, shall authenticate (i) Series A Notes for
original issue on the Issue Date in the aggregate principal amount not to exceed
(euro)400,000,000 and (ii) subject to Section 4.9, Additional Notes which may be
issued from time to time pursuant to Section 2.16. The Trustee, upon written
order of the Company signed by two Officers of the Company, together with the
other documents required by Sections 13.4 and 13.5, shall authenticate Series B
Notes; provided that such Series B Notes shall be issuable only upon the valid
surrender for cancellation of Series A Notes of a like aggregate principal
amount in accordance with the Exchange Offer or an exchange offer specified in
any registration rights agreement relating to the Additional Notes. Such written
order of the Company shall specify the amount of Notes to be authenticated and
the date on which the original issue of Notes is to be authenticated and, in the
case of Additional Notes issued pursuant to Section 2.16, such written order
shall certify that such issuance is not prohibited under Section 4.9 of this
Indenture. Any Additional Notes shall be part of the same issue as the Notes
being issued on the Issue Date and will vote on all matters as one class with
the Notes being issued on the Issue Date, including, without limitation,
waivers, amendments, redemptions, Change of Control Offers and Net Proceeds
Offers. For the purposes of this Indenture, except for Section 4.9, references
to the Notes include Additional Notes, if any.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, in London, England and, so long as the Notes
are admitted to the Official List of the Luxembourg Stock Exchange and the rules
of such stock exchange so require, in Luxembourg where (a) Notes may be
presented for registration of transfer or for exchange ("Registrar") and (b)
Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a
register of the Notes and of their transfer and exchange. At the option of the
Company, payment of interest and Additional Interest may be made by check mailed
to the Holders at their addresses set forth in the register of Holders, provided
that payment by wire transfer of immediately available funds will be required
with respect to principal, Redemption Price and Purchase Price of, and interest
and Additional Interest (if any) on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Trustee
or the Paying Agent. The Company may appoint one or more co-registrars and one
or more additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company shall notify the Trustee in writing of the name and address of any
Paying Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company may act as Paying Agent or Registrar. The Depositary shall, by
acceptance of a Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system maintained by
the Depositary (or its agent).
The Company initially appoints the Trustee as Registrar (acting as the
Company's agent for this purpose) and Paying Agent in the Borough of Manhattan,
The City of New York, the Trustee as Registrar and Paying Agent in London,
England and so long as the Notes are admitted to the Official List of the
Luxembourg Stock Exchange and so long as the rules of the Luxembourg Stock
Exchange so require, the Company will maintain a Paying Agent and Transfer Agent
in Luxembourg (the "Luxembourg Paying Agent"). The Company also appoints the
Trustee to act as Common Depository with respect to the Global Notes and the
Registrar as Transfer Agent in the event the Notes are issued in definitive
registered form.
Section 2.4. Paying Agents to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal and of any premium, if any, interest and Additional Interest, if any,
on the Notes, and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee and account for all monies disbursed. Upon payment over to the Trustee,
the Paying Agent (if other than the Company) shall have no further liability for
the money. If the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish (or cause the Registrar to furnish)
to the Trustee at least five (5) Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes, and the Company shall otherwise comply with
TIA ss. 312(a).
Section 2.6. Transfer and Exchange.
(1) Transfer and Exchange Generally; Book Entry Provisions. Upon
surrender for registration of transfer of any Note to the Registrar, and
satisfaction of the requirements for such transfer set forth in this Section
2.6, the Company shall execute, and the Trustee shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new Notes
of any authorized denominations and of a like aggregate principal amount and
bearing such restrictive legends as may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations
and of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 4.2 of this Indenture. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive
bearing registration numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or
exchange shall be duly endorsed, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Registrar,
and the Notes shall be duly executed by the Holder thereof or his attorney duly
authorized in writing. Except as otherwise provided in this Indenture, and in
addition to the requirements set forth in the legend referred to in Section
2.6(8)(a) below, in connection with any transfer of Transfer Restricted
Securities any request for transfer shall be accompanied by a certification to
the Trustee relating to the manner of such transfer substantially in the form of
Exhibit D(2) hereto.
(2) Book-Entry Provisions for the Global Notes. The Rule 144A Global
Note and Regulation S Global Note initially shall (i) be registered in the name
of the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for the Depositary and (iii) bear legends as set forth in
Section 2.6(8) of this Indenture.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Rule 144A Global Note or
Regulation S Global Note, as the case may be, held on their behalf by the
Depositary, or the Trustee as its custodian, or under the Rule 144A Global Note
or Regulation S Global Note, as the case may be, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of Rule 144A Global Note or Regulation S Global Note, as
the case may be, for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
Transfers of the Rule 144A Global Note and the Regulation S Global
Note shall be limited to transfers of such Rule 144A Global Note or Regulation S
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Beneficial interests in the Rule 144A Global Note and
the Regulation S Global Note may be transferred in accordance with the
applicable rules and procedures of the Depositary and the provisions of this
Section 2.6. The registration of transfer and exchange of beneficial interests
in the Global Note, which does not involve the issuance of a Certificated Note,
shall be effected through the Depositary, in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of
the Common Depository therefor. The Trustee shall have no responsibility or
liability for any act or omission of the Depositary.
At any time at the request of the beneficial holder of an interest in
the Rule 144A Global Note or Permanent Regulation S Global Note to obtain a
Certificated Note, such beneficial holder shall be entitled to obtain a
Certificated Note upon written request to the Trustee and the Common Depository
in accordance with the standing instructions and procedures existing between the
Common Depository and Depositary for the issuance thereof. Upon receipt of any
such request, the Common Depository will cause, in accordance with the standing
instructions and procedures existing between the Depositary and Common
Depository, the aggregate principal amount of the Rule 144A Global Note or
Permanent Regulation S Global Note, as appropriate, to be reduced by the
principal amount of the Certificated Note issued upon such request to such
beneficial holder and, following such reduction, the Company will execute and
the Trustee will authenticate and deliver to such beneficial holder (or its
nominee) a Certificated Note or Certificated Notes in the appropriate aggregate
principal amount in the name of such beneficial holder (or its nominee) and
bearing such restrictive legends as may be required by this Indenture.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements of
this Indenture.
(3) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Transfer Restricted Security to any Institutional
Accredited Investor that is not a QIB (other than any Person that is not a U.S.
Person as defined under Regulation S, a "Foreign Person"):
(a) The Registrar shall register the transfer of any Note, whether or
not such Note bears the Private Placement Legend, if (x) (A) the requested
transfer is at least two (2) years after the later of the Issue Date of the
Notes and (B) the proposed transferee has certified to the Registrar that
the requested transfer is at least two (2) years after the last date on
which such Note was held by an Affiliate of the Company, or (y) the
proposed transferee has delivered to the Registrar (A) a certificate
substantially in the form of Exhibit D hereto and (B) such certifications,
legal opinions and other information as the Trustee and the Company may
reasonably request to confirm that such transaction is in compliance with
the Securities Act; and
(b) If the proposed transferor is an Agent Member holding a beneficial
interest in the Global Note, upon receipt by the Registrar of (x) the
documents, if any, required by clause (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the Global Note in an amount equal to the principal
amount of the beneficial interest in the Global Note to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver,
one or more Certificated Notes of like tenor and amount.
(4) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Transfer Restricted
Security to a QIB (other than Foreign Persons):
(a) if the Note to be transferred consists of Certificated Notes
or an interest in the Regulation S Global Note, the Registrar shall
register the transfer if such transfer is being made by a proposed
transferor who has checked the box provided for on a certificate
substantially in the form of Exhibit C(2) stating, or has otherwise
advised the Company and the Registrar in writing, that the sale has
been made in compliance with the provisions of Rule 144A to a
transferee who is a QIB within the meaning of Rule 144A and is aware
that the sale to it is being made in reliance on Rule 144A; and
(b) if the proposed transferee is an Agent Member, and the Note
to be transferred consists of Certificated Notes or an interest in the
Regulation S Global Note, upon receipt by the Registrar of the
documents referred to in Section 2.6(4)(a) and instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and an
increase in the principal amount of the Rule 144A Global Note in an
amount equal to the principal amount of the Certificated Notes or the
interest in the Regulation S Global Note, as the case may be, to be
transferred, and the Trustee shall cancel the Certificated Notes or
decrease the amount of the Regulation S Global Note so transferred.
(5) Transfers of Interests in the Temporary Regulation S Global Note.
The following provisions shall apply with respect to the registration of any
proposed transfer of interests in the Temporary Regulation S Global Note:
(a) The Registrar shall register the transfer of an interest in
the Temporary Regulation S Global Certificate if (x) the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit E hereto stating, among other things, that the
proposed transferee is a Foreign Person or (y) the proposed transferee
is a QIB and the proposed transferor has checked the box provided for
on a certificate substantially in the form of Exhibit C(2) stating, or
has otherwise advised the Company and the Registrar in writing, that
the sale has been made in compliance with the provisions of Rule 144A
to a transferee who is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A; and
(b) if the proposed transferee is an Agent Member, upon receipt
by the Registrar of the documents referred to in Section 2.6(5)(a)(y)
and instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the
Temporary Regulation S Global Note to be transferred, and the Common
Depository, as custodian, shall decrease the amount of the Temporary
Regulation S Global Note.
(6) Transfers to Foreign Persons. The following provisions shall apply
with respect to any transfer of a Transfer Restricted Security to a Foreign
Person:
(a) the Registrar shall register any proposed transfer of a Note
to a Foreign Person upon receipt of a certificate substantially in the
form of Exhibit E hereto from the proposed transferor and such
certifications, legal opinions and other information as the Trustee or
the Company may reasonably request; and
(b) (i) If the proposed transferor is an Agent Member holding a
beneficial interest in the Rule 144A Global Note or the Note to be
transferred consists of Certificated Notes, upon receipt by the
Registrar of (x) the documents, if any, required by Section 2.6(6)(a)
and (y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Rule
144A Global Note in an amount equal to the principal amount of the
beneficial interest in the Rule 144A Global Note or cancel the
Certificated Notes, as the case may be, to be transferred, and (ii) if
the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Regulation S Global Note in an amount equal to the principal
amount of the Certificated Notes to be transferred, and the Trustee
shall decrease the amount of the Rule 144A Global Note.
(7) The Depositary. The Depositary shall be a clearing agency
registered under the Exchange Act. The Company initially appoints Euroclear and
Clearstream to act as Depositary with respect to the Global Note. Initially, the
Rule 144A Global Note and the Regulation S Global Note shall be issued to the
Common Depository, registered in the name of The Bank of New York Depository
(Nominees) Limited, as the nominee of the Common Depository, and deposited with
the Common Depository.
Notes in Certificated form issued in exchange for all or a part of a
Global Note pursuant to this Section 2.6 shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. Upon execution and authentication, the Trustee shall deliver such
Certificated Notes in Certificated form to the persons in whose names such Notes
in Certificated form are so registered.
Beneficial owners shall be entitled to receive Certificated Notes in
exchange for their beneficial interests in the Rule 144A Global Note or the
Permanent Regulation S Global Note, as the case may be, if at any time:
(a) Euroclear or Clearstream notifies the Company that Euroclear or
Clearstream, as the case may be, is unwilling or unable to continue as a
clearing agency;
(b) the Common Depository notifies the Company that the Common
Depository is unwilling or unable to continue as Common Depository and a
successor Common Depository is not appointed within 120 days of such
notice; or
(c) in the case of any Note, an Event of Default has occurred and is
continuing with respect to such Note,
and the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.2 of this Indenture,
authenticate and deliver Certificated Notes in an aggregate principal amount
equal to the principal amount of the Rule 144A Global Note or the Permanent
Regulation S Global Note, as the case may be, in exchange for such Global Notes.
(8) Legends.
(a) Except as permitted by Sections 2.6(8)(b) and (c), each Note
certificate evidencing Global Notes and Certificated Notes (and all Notes
issued in exchange therefor or substitution thereof) shall (x) be subject
to the restrictions on transfer set forth in this Section 2.6 (including
those set forth in the legend below) unless such restrictions on transfer
shall be waived by written consent of the Company, and the holder of each
Transfer Restricted Security, by such Holder's acceptance thereof, agrees
to be bound by all such restrictions on transfer and (y) bear the legend
set forth below (the "Private Placement Legend"):
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 OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT), (B) IT IS NOT A U.S. PERSON AND
IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR (C) IT IS AN
ACCREDITED INVESTOR (AS DEFINED IN RULE 501(a)(1), (2), (3), OR
(7) UNDER THE SECURITIES ACT (AN "ACCREDITED INVESTOR"), (2)
AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO KRONOS INTERNATIONAL, INC. OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE
FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR THIS
SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT
(IF AVAILABLE), (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (F)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF KRONOS INTERNATIONAL, INC. SO REQUESTS), OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN ADVANCE OF SUCH TRANSFER. IN CONNECTION
WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS
AN ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND KRONOS INTERNATIONAL, INC. SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF
THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES"
AND "U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
(b) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Note)
pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act:
(i) in the case of any Transfer Restricted Security that is a
Certificated Note, the Registrar shall permit the Holder thereof to
exchange such Transfer Restricted Security for a Certificated Note
that does not bear the legend set forth in Section 2.6(8)(a) and
rescind any restriction on the transfer of such Transfer Restricted
Security; and
(ii) in the case of any Transfer Restricted Security represented
by a Global Note, such Transfer Restricted Security shall not be
required to bear the legend set forth in Section 2.6(8)(a), but shall
continue to be subject to the provisions of Section 2.6(2); provided,
however, that with respect to any request for an exchange of a
Transfer Restricted Security that is represented by a Global Note for
a Certificated Note that does not bear the legend set forth in (i)
above, which request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Registrar that such request is
being made pursuant to Rule 144 (such certifications to be
substantially in the form of Exhibit C(2) hereto).
(c) Notwithstanding the foregoing, upon consummation of the Exchange
Offer, the Company shall issue and, upon receipt of an authentication order
in accordance with Section 2.2 of this Indenture, the Trustee shall
authenticate Series B Notes in exchange for Series A Notes accepted for
exchange in the Exchange Offer, which Series B Notes shall not bear the
legend set forth in (a) above, and the Registrar shall rescind any
restriction on the transfer of such Series A Notes, in each case unless the
Company has notified the Registrar in writing that the Holder of such
Series A Notes is either (i) a broker-dealer, (ii) a Person participating
in the distribution of the Series A Notes or (iii) a Person who is an
affiliate (as defined in Rule 144A) of the Company.
(d) Each Global Note, whether or not a Transfer Restricted Security,
shall also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
EXCEPT 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 DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
THIS GLOBAL NOTE IS HELD BY THE COMMON DEPOSITORY (AS DEFINED IN
THE INDENTURE GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO
SECTIONS 2.1, 2.6, 2.7, 3.3, 4.10 AND 4.15 OF THE INDENTURE, (II)
THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 2.6 OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
(e) Any Global Note may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Common Depository or
the Depositary in order for the Notes to be tradable on Euroclear or
Clearstream or as may be required for the Notes to be tradable on any other
market developed for trading of securities pursuant to Rule 144A or
Regulation S under the Securities Act or required to comply with any
applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon
which the Notes may be listed or traded or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to
which any particular Notes are subject.
(9) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in Global Notes have been exchanged for Certificated
Notes, redeemed, purchased or canceled, all Global Notes shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 of this
Indenture. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for Certificated Notes, redeemed, purchased or
canceled, the principal amount of Notes represented by such Global Notes shall
be reduced accordingly and an endorsement shall be made on such Global Note by
the Trustee or the Common Depository, at the direction of the Trustee, to
reflect such reduction. In the event of any transfer of any beneficial interest
between the Rule 144A Global Note and the Regulation S Global Note in accordance
with the standing procedures and instructions between the Depositary and the
Common Depository and the transfer restrictions set forth herein, the aggregate
principal amount of each of the Rule 144A Global Note and the Regulation S
Global Note shall be appropriately increased or decreased, as the case may be,
and an endorsement shall be made on each of the Rule 144A Global Note and the
Regulation S Global Note by the Trustee or the Common Depository, at the
direction of the Trustee, to reflect such reduction or increase.
(10) General Provisions Relating to Transfers and Exchanges.
(a) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Certificated Notes and
Global Notes at the Registrar's request.
(b) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
3.6 and 9.5 of this Indenture).
(c) The Registrar shall not be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(d) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global Notes
shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Certificated
Notes or Global Notes surrendered upon such registration of transfer or
exchange.
(e) The Company shall not be required:
(i) to issue, to register the transfer of or to exchange Notes
during a period beginning at the opening of business 15 days before
the day of any selection of Notes for redemption or purchase under
Section 3.2 of this Indenture and ending at the close of business on
the day of selection; or
(ii) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part; or
(iii) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(f) Prior to due presentment of the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person
in whose name any Note is registered as the absolute owner of such Note for
the purpose of all payments with respect to such Notes, and neither the
Trustee, any Agent nor the Company shall be affected by notice to the
contrary.
(g) The Trustee shall authenticate Certificated Notes and Global Notes
in accordance with the provisions of Section 2.2 of this Indenture.
Section 2.7. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or either the
Company or the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Company shall issue and the Trustee, upon receipt
of an authentication order in accordance with Section 2.2 of this Indenture,
shall authenticate a replacement Note if the Trustee's requirements for
replacement of Notes are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a Note
is replaced. The Trustee and the Company may charge the Holder for their
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.8. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee or the Common Depository in accordance with the provisions hereof, and
those described in this Section 2.8 as not outstanding. Except as set forth in
Section 2.9 of this Indenture, a Note does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 of this Indenture, it
shall cease to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Note is held by a bona fide purchaser for value.
If the principal amount of any Note is considered paid under Section
4.1 of this Indenture, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
If Notes, or portions thereof, for whose payment or redemption money
or Government Obligations in the necessary amount, including accrued interest to
the Redemption Date, has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust for the Holders of such Notes;
provided, that if such Notes 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, such Notes shall be deemed to be no longer
outstanding under this Indenture.
Section 2.9. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, the Guarantors or by any Affiliate thereof shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver of consent,
only Notes that a Responsible Officer of the Trustee knows are so owned shall be
so disregarded. The Company agrees to notify the Trustee of the existence of any
such treasury Notes or Notes owned by the Company or any Guarantor or any such
Notes of which the Company is aware owned by any other Affiliate thereof.
Section 2.10. Temporary Notes.
Until Certificated Notes are ready for delivery, the Company may
prepare and the Trustee, upon receipt of an authentication order in accordance
with Section 2.2 of this Indenture, shall authenticate temporary Notes.
Temporary Notes shall be substantially in the form of Certificated Notes, but
may have such variations as the Company considers appropriate for temporary
Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Certificated
Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy all
canceled Notes in accordance with the Trustee's usual procedures. The Trustee
shall dispose of such Notes as it may reasonably determine. The Company may not
issue new Notes to replace Notes that have been paid or that have been delivered
to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, the
Company shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.1 of this Indenture. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date, provided that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
Section 2.13. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer and
subject to Section 2.12 of this Indenture, the Company, the Trustee, any Paying
Agent, any co-registrar and any Registrar may deem and treat the person in whose
name any Note shall be registered upon the register of Notes kept by the
Registrar as the absolute owner of such Note (whether or not such Note shall be
overdue and notwithstanding any notation of the ownership or other writing
thereon made by anyone other than the Company, any co-registrar or any
Registrar) for the purpose of receiving all payments with respect to such Note
and for all other purposes, and none of the Company, the Trustee, any Paying
Agent, any co-registrar or any Registrar shall be affected by any notice to the
contrary.
Section 2.14. "CUSIP", "ISIN" and "Common Code" Numbers.
The Company in issuing the Notes shall use "CUSIP", "ISIN" and "Common
Code" number(s) and the Trustee shall use the "CUSIP", "ISIN" and "Common Code"
number(s) in notices of redemption or exchange as a convenience to Holders;
provided that neither the Company nor the Trustee shall have any responsibility
for any defect in the "CUSIP", "ISIN" or "Common Code" number that appears on
any Note, check, advice or payment or redemption notice, and any such notice may
state that no representation is made as to the correctness or accuracy of the
"CUSIP", "ISIN" and "Common Code" number(s) printed in the notice or on the
Notes, and that reliance may be placed only on the other identification numbers
printed on the Notes and any such redemption or exchange shall not be affected
by any defect in or omission of such number(s). The Company shall promptly
notify the Trustee of any changes in "CUSIP", "ISIN" or "Common Code" numbers.
Section 2.15. Designation.
The Indebtedness evidenced by the Notes and the Guarantees is hereby
irrevocably designated as "senior indebtedness" or such other term denoting
seniority for the purposes of any future Indebtedness of the Company or a
Guarantor which the Company or a Guarantor makes subordinate to any senior
indebtedness or such other term denoting seniority.
Section 2.16. Issuance of Additional Notes.
The Company shall be entitled to issue Additional Notes under this
Indenture which shall have substantially identical terms as the Series A Notes,
other than with respect to the date of issuance, issue price, amount of interest
payable on the first payment date applicable thereto (and, if such Additional
Notes shall be issued pursuant to a registration statement under the Securities
Act, other than with respect to transfer restrictions or if such Additional
Notes shall be required to be registered under the Securities Act pursuant to
the terms of a registration rights or similar agreement, such Additional Notes
shall be exchangeable for and the Company shall issue and the Trustee shall
authenticate Notes substantially in the form of Exhibit B hereto, but without a
Private Placement Legend, to be delivered in exchange for such Additional
Notes); provided that any issuance is not prohibited by Section 4.9.
With respect to any Additional Notes, the Company shall set forth in a
resolution of its Board of Directors (or a duly appointed committee thereof) and
in an Officers' Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be
authenticated and delivered pursuant to this Indenture;
(2) the issue price and the issue date of such Additional Notes, the
amount of interest payable on the first payment date applicable thereto and
the CUSIP, ISIN or Common Code for such Additional Notes; provided that no
Additional Notes may be issued at a price that would cause such Additional
Notes to have "original issue discount" within the meaning of Section 1273
of the Internal Revenue Code of 1986, as amended; and
(3) whether such Additional Notes shall be Transfer Restricted
Securities and issued in the form of Series A Notes as set forth in Exhibit
A hereto, or shall be registered securities.
ARTICLE III.
REDEMPTION AND PURCHASE
Section 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the provisions of
Section 3.7, 3.8 or 3.9 of this Indenture, it shall furnish to the Trustee, at
least 45 days but not more than 60 days before the Redemption Date, an Officers'
Certificate setting forth the Section of this Indenture pursuant to which the
redemption shall occur, the Redemption Date, the principal amount of Notes to be
redeemed and the Redemption Price.
If the Company is required to offer to purchase Notes pursuant to the
provisions of Section 4.10 or 4.15 of this Indenture, it shall notify the
Trustee in writing, at least 30 days but not more than 60 days before the
Purchase Date, of the Section of this Indenture pursuant to which the purchase
shall occur, the Purchase Date, the principal amount of Notes required to be
purchased and the Purchase Price and shall furnish to the Trustee an Officers'
Certificate to the effect that (a) the Company is required to make or has made a
Net Proceeds Offer or a Change of Control Offer, as the case may be, and (b) the
conditions set forth in Section 4.10 or 4.15 of this Indenture, as the case may
be, have been satisfied.
If the Registrar is not the Trustee, the Company shall, concurrently
with each notice of redemption or purchase, cause the Registrar to deliver to
the Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Notes held by each Holder.
Section 3.2. Selection of Notes.
Except as set forth below, if less than all of the Notes are to be
redeemed or purchased other than pursuant to Section 3.7 or 3.8, the Trustee
shall select the Notes or portions thereof to be redeemed or purchased in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed or, if the Notes are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate. In the event of partial redemption
or purchase by lot, the particular Notes or portions thereof to be redeemed or
purchased shall be selected, unless otherwise provided herein, not less than 30
nor more than 60 days prior to the Redemption Date or Purchase Date by the
Trustee from the outstanding Notes not previously called for redemption or
purchase.
If less than all of the Notes tendered are to be purchased pursuant to
the provisions of Section 4.10 of this Indenture, the Trustee shall select the
Notes or portions thereof to be purchased in compliance with Section 4.10. In
the event of partial purchase by lot, the particular Notes or portions thereof
to be purchased shall be selected at the close of business of the last Business
Day prior to the Purchase Date. If less than all of the Notes tendered are to be
redeemed pursuant to the provisions of Section 3.7 or 3.8 of this Indenture, the
Trustee shall select the Notes only on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to Euroclear and Clearstream procedures),
unless such method is otherwise prohibited.
The Trustee shall promptly notify the Company in writing of the Notes
or portions thereof selected for redemption or purchase and, in the case of any
Note selected for partial redemption or purchase, the principal amount thereof
to be redeemed or purchased. Notes and portions thereof selected shall be in
amounts of (euro)1,000 or integral multiples of (euro)1,000; except that if all
of the Notes of a Holder are to be redeemed or purchased, the entire outstanding
amount of Notes held by such Holder, even if not a multiple of (euro)1,000,
shall be redeemed. No Notes of a principal amount of (euro)1,000 or less shall
be redeemed or purchased in part; provided that no Notes shall be redeemed in
part if the resulting Note would have a minimum denomination that is less than
(euro)50,000.
Section 3.3. Notice of Redemption or Purchase.
(1) In the event Notes are to be redeemed or purchased pursuant to
Section 3.7, 3.8 or 3.9 of this Indenture, at least 30 days but not more than 60
days before the Redemption Date or Purchase Date, as the case may be, the
Company shall mail a notice of redemption or purchase to each Holder whose Notes
are to be redeemed or purchased in whole or in part, with a copy to the Trustee.
So long as the Series B Notes are admitted to the Official List of the
Luxembourg Stock Exchange and it is required by the rules of the Luxembourg
Stock Exchange, publication of such notice to the holders of the Notes shall be
made in English in a leading newspaper having general circulation in Luxembourg
(which is expected to be the Luxemburger Wort) or, if such publication is not
practicable, in one other leading English language daily newspaper with general
circulation in Europe, such newspaper being published on each business day in
morning editions, whether or not it shall be published on Saturday, Sunday or
holiday editions.
(2) The notice shall identify the Notes or portions thereof to be
redeemed or purchased and shall state:
(a) the Redemption Date or Purchase Date, as the case may be;
(b) the Redemption Price or Purchase Price, as the case may be;
(c) if any Note is being redeemed or purchased in part, the portion of
the principal amount of such Note to be redeemed or purchased and that,
after the Redemption Date or Purchase Date. as the case may be, upon
surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed or unpurchased portion will be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption or purchase must be surrendered
to the Paying Agent to collect the Redemption Price or Purchase Price, as
the case may be, Additional Interest, if any, and, unless the Redemption
Date or Purchase Date, as the case may be, is after a record date and on or
before the succeeding interest payment date, accrued interest thereon to
the Redemption Date or Purchase Date, as the case may be;
(f) that, unless the Company defaults in making the redemption or
purchase payment, interest and any Additional Interest on Notes called for
redemption or purchase will cease to accrue on and after the Redemption
Date or Purchase Date, as the case may be, and the only remaining right of
the Holders of such Notes is to receive payment of the Redemption Price or
Purchase Price, as the case may be, any Additional Interest and, unless the
Redemption Date or Purchase Date, as the case may be, is after a record
date and on or before the succeeding interest payment date, accrued
interest thereon to the Redemption Date or Purchase Date, as the case may
be, upon surrender to the Paying Agent of the Notes redeemed or purchased;
(g) if fewer than all the Notes are to be redeemed or purchased, the
identification of the particular Notes (or portions thereof) to be redeemed
or purchased, as well as the aggregate principal amount of the Notes to be
redeemed or purchased and the aggregate principal amount of Notes to be
outstanding after such partial redemption or purchase;
(h) the paragraph of the Notes pursuant to which the Notes called for
redemption or purchase are being redeemed or purchased; and
(i) "CUSIP," "ISIN," "Common Code" or other identifying number.
(3) At the Company's request, the Trustee shall give the notice of
redemption or purchase in the Company's name and at its expense; provided that
the Company shall deliver to the Trustee, at least 40 days prior to the
Redemption Date or Purchase Date, as the case may be, an Officers' Certificate
requesting that the Trustee give such notice and setting forth the information
to be stated in such notice as provided in Section 3.3(2).
Section 3.4. Effect of Notice of Redemption or Purchase.
Once notice of redemption or purchase is mailed, Notes or portions
thereof called for redemption or purchase become due and payable on the
Redemption Date or Purchase Date, as the case may be, at the Redemption Price or
Purchase Price, as the case may be. Upon surrender to any Paying Agent, such
Notes or portions thereof shall be paid at the Redemption Price or Purchase
Price, as the case may be, plus Additional Interest, if any, and accrued and
unpaid interest to the Redemption Date or Purchase Date, as the case may be;
provided, however, that installments of interest which are due and payable on or
prior to the Redemption Date or Purchase Date, as the case may be, shall be
payable to the Holders of such Notes, registered as such, at the close of
business on the relevant record date for the payment of such installment of
interest.
Section 3.5. Deposit of Redemption Price or Purchase Price.
(1) On or before each Redemption Date or Purchase Date, as the case
may be, the Company shall irrevocably deposit with the Trustee or with the
Paying Agent money sufficient to pay the aggregate amount due on all Notes to be
redeemed or purchased on that date, including without limitation any accrued and
unpaid interest and Additional Interest, if any, to the Redemption Date or
Purchase Date, as the case may be. The Trustee or the Paying Agent shall
promptly return to the Company any money not required for that purpose upon the
Company's request.
(2) Unless the Company defaults in making such payment, interest and
any Additional Interest on the Notes to be redeemed or purchased will cease to
accrue on the applicable Redemption Date or Purchase Date, as the case may be,
whether or not such Notes are presented for payment. If any Note called for
redemption or purchase shall not be so paid upon surrender because of the
failure of the Company to comply with Section 3.5(1), interest will be paid on
the unpaid principal, from the applicable Redemption Date or Purchase Date, as
the case may be, until such principal is paid, and on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1 of this Indenture.
Section 3.6. Notes Redeemed or Purchased in Part.
Upon surrender of a Note that is redeemed or purchased in part, the
Company shall issue and the Trustee shall authenticate for the Holder at the
expense of the Company a new Note equal in principal amount to portion of the
Note surrendered that is not to be redeemed or purchased; provided that no
book-entry interest of less than (euro)50,000 principal amount at maturity, or
less, may be redeemed in part.
Section 3.7. Optional Redemption.
Except as set forth below, the Notes are not redeemable before October
15, 2009. The Company may redeem any or all of the Notes at any time on or after
October 15, 2009 at the Redemption Prices set forth in the Notes. In addition,
the Company must pay accrued and unpaid interest (including Additional Interest,
if any) on the Notes redeemed. Any redemption pursuant to this Section 3.7 shall
be made pursuant to the provisions of Sections 3.1 through 3.6 of this
Indenture.
Section 3.8. Special Redemption.
At any time, or from time to time, on or before April 15, 2009, the
Company, at its option, may use the net cash proceeds from one or more Public
Equity Offerings to redeem up to 35% of the principal amount of the Notes
(including the original principal amount of any Additional Notes) (a "Special
Redemption") at a Redemption Price of 106.5% of the principal amount thereof,
together with accrued and unpaid interest and Additional Interest, if any, to
the date of redemption, provided, however, that at least 65% of the principal
amount of the Notes (including the original principal amount of any Additional
Notes) issued will remain outstanding immediately after any such Special
Redemption; and provided, further, that such Special Redemption shall occur
within 90 days after the date of the closing of the applicable Public Equity
Offering. Any redemption pursuant to this Section 3.8 shall be made pursuant to
the provisions of Sections 3.1 through 3.6 of this Indenture.
Section 3.9. Redemption or Purchase upon Change of Control at the Option of the
Company.
At any time on or prior to October 15, 2009, the Notes may
also be redeemed or purchased (by the Company or any other Person) in whole but
not in part, at the Company's option, upon the occurrence of a Change of
Control, at a price equal to 100% of the principal amount thereof plus the
Applicable Premium as of, and accrued but unpaid interest, if any, to, the
Redemption Date or Purchase Date, as the case may be (subject to the right of
Holders of record on the relevant record date to receive interest due on the
relevant interest payment date).
Such redemption or purchase may be made upon notice mailed by
first-class mail to each Holder's registered address, not less than 30 nor more
than 60 days prior to the Redemption Date or Purchase Date, as the case may be
(but in no event shall such notice be mailed more than 180 days after the
occurrence of such Change of Control). The Company may provide in such notice
that payment of such price and performance of the Company's obligations with
respect to such redemption or purchase may be performed by another Person. Any
such notice may be given prior to the occurrence of the related Change of
Control, and any such redemption, purchase or notice may, at the Company's
discretion, be subject to the satisfaction of one or more conditions precedent,
including but not limited to the occurrence of the related Change of Control.
Any redemption or purchase pursuant to this Section 3.9 shall be made pursuant
to the provisions of Sections 3.1 through 3.6 of this Indenture.
Section 3.10. Purchase upon Change of Control Offer.
(1) In the event that, pursuant to Section 4.15 of this Indenture, the
Company shall be required to commence a Change of Control Offer, it shall follow
the procedures specified below.
(2) The Change of Control Offer shall remain open for a period from
the date of the mailing of the notice of the Change of Control Offer described
in Section 3.10(3) until a date determined by the Company which is at least 30
but no more than 45 days from the date of mailing of such notice and no longer,
except to the extent that a longer period is required by applicable law (the
"Change of Control Payment Date"). On the Change of Control Payment Date, the
Company shall purchase the principal amount of Notes properly tendered in
response to the Change of Control Offer. Payment for any Notes so purchased
shall be made in the same manner as interest payments are made.
(3) Within 60 days following any Change of Control, the Company shall
send, by first class mail, a notice to each of the Holders with a copy to the
Trustee. The notice shall contain all instructions and materials reasonably
necessary to enable such Holders to tender Notes pursuant to the Change of
Control Offer. The Change of Control Offer shall be made to all Holders. The
notice, which shall govern the terms of the Change of Control Offer, shall
state:
(a) the transaction or transactions that constitute the Change of
Control, providing information, to the extent publicly available, regarding
the Person or Persons acquiring control, and stating that the Change of
Control Offer is being made pursuant to this Section 3.10 and Section 4.15
of this Indenture and that, to the extent lawful, all Notes tendered will
be accepted for payment;
(b) the Purchase Price and the Change of Control Payment Date;
(c) that any Note not properly tendered or otherwise not accepted for
purchase will continue to accrue interest and Additional Interest, if any;
(d) that, unless the Company defaults in the payment of the amount due
on the Change of Control Payment Date, all Notes or portions thereof
accepted for purchase pursuant to the Change of Control Offer shall cease
to accrue interest and Additional Interest, if any, after the Change of
Control Payment Date;
(e) that Holders electing to have any Notes purchased pursuant to the
Change of Control Offer will be required to tender the Notes, with the form
entitled Option of Holder To Elect Purchase on the reverse of the Notes
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice not later than the third Business Day preceding the
Change of Control Payment Date;
(f) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the close of business on the Change of Control Payment Date,
a telegram, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a
statement that such Holder is withdrawing his election to have the Notes
purchased in whole or in part; and
(g) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the portion of the Notes
tendered (or transferred by book entry transfer) that is not to be
purchased, which portion must be equal to (euro)1,000 in principal amount
or an integral multiple thereof.
(4) On or before the Change of Control Payment Date, the Company shall
to the extent lawful, (i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent an amount equal to the Purchase Price, together with accrued and
unpaid interest and Additional Interest, if any, thereon to the Change of
Control Payment Date in respect of all Notes or portions thereof so tendered and
accepted for purchase and (iii) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly (but in any case not later than five
days after the Change of Control Payment Date) mail to each Holder of Notes so
purchased the amount due in connection with such Notes, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company in the form of an Officers' Certificate, shall authenticate and mail or
deliver (or cause to transfer by book entry) to each relevant Holder a new Note,
in a principal amount equal to any unpurchased portion of the Notes surrendered
to the Holder thereof; provided that each such new Note shall be in a principal
amount of (euro)50,000 and (euro)1,000 increments thereof (provided that no Note
of less than (euro)50,000 may remain outstanding thereafter). The Company shall
publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.
If the Change of Control Payment Date is on or after an interest
record date and on or before the related interest payment date, any accrued and
unpaid interest and Additional Interest, if any, in each case to the Change of
Control Payment Date, shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest shall be payable to Holders pursuant to the Change of Control Offer.
Section 3.11. Purchase upon Application of Excess Proceeds.
In the event that, pursuant to Section 4.10 of this Indenture, the
Company shall be required to commence a Net Proceeds Offer, it shall follow the
procedures specified below.
The notice shall contain all instructions and materials reasonably
necessary to enable such Holders to tender Notes pursuant to the Net Proceeds
Offer. The Net Proceeds Offer shall be made to all Holders. Each Net Proceeds
Offer will be mailed to the record Holders as shown on the register of Holders
within 25 days following the Net Proceeds Offer Trigger Date, with a copy to the
Trustee, and shall comply with the procedures set forth in this Indenture. Upon
receiving notice of the Net Proceeds Offer, Holders may elect to tender their
Notes in whole or in part in integral multiples of (euro)1,000 (provided that no
Note of less than (euro)50,000 may remain outstanding thereafter) in exchange
for cash. A Net Proceeds Offer shall remain open for a period of 20 Business
Days or such longer period as may be required by law. The notice, which shall
govern the terms of the Net Proceeds Offer, shall state:
(1) that the Net Proceeds Offer is being made pursuant to this Section
3.11 and Section 4.10 of this Indenture;
(2) the Net Proceeds Offer Amount, the Purchase Price and the Purchase
Date;
(3) that any Note not properly tendered or otherwise not accepted for
purchase shall continue to accrue interest and Additional Interest, if any;
(4) that, unless the Company defaults in the payment of the amount due
on the Purchase Date, all Notes or portions thereof accepted for purchase
pursuant to the Net Proceeds Offer shall cease to accrue interest and
Additional Interest, if any, after the Purchase Date;
(5) that Holders electing to have any Notes purchased pursuant to any
Net Proceeds Offer shall be required to tender the Notes, with the form
entitled Option of Holder To Elect Purchase on the reverse of the Notes
completed, or transfer by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice prior to the close of business on the third
Business Day preceding the Purchase Date;
(6) that Holders will be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives,
not later than the Purchase Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes delivered for purchase and a statement that such Holder is
withdrawing his election to have such Notes purchased in whole or in part;
and
(7) that, to the extent Holders properly tender Notes in an amount
exceeding the Net Proceeds Offer Amount, the tendered Notes will be
purchased on a pro rata basis based on the aggregate amounts of Notes
tendered (and the Trustee shall select the tendered Notes of tendering
Holders on a pro rata basis based on the amount of Notes tendered).
On or before the Purchase Date, the Company shall to the extent
lawful, (i) accept for payment, on a pro rata basis in accordance with this
Indenture to the extent necessary, the Net Proceeds Offer Amount of Notes or
portions thereof properly tendered pursuant to the Net Proceeds Offer, or if
less than the Net Proceeds Offer Amount has been tendered, all Notes properly
tendered, (ii) deposit with the Paying Agent an amount equal to the Purchase
Price, plus accrued and unpaid interest and Additional Interest, if any, thereon
to the Purchase Date in respect of all Notes or portions thereof so tendered and
accepted for purchase and (iii) deliver or cause to be delivered to the Trustee
the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount of Notes or portions thereof being purchased by the
Company. The Paying Agent shall promptly (but in any case not later than five
(5) days after the Purchase Date) mail to each Holder of Notes so purchased the
amount due in connection with such Notes, and the Company shall promptly issue a
new Note, and the Trustee, upon written request from the Company in the form of
an Officers' Certificate shall authenticate and mail or deliver such new Note to
such Holder, in a principal amount equal to any unpurchased portion to the
Holder thereof; provided that each such new Note shall be in a principal amount
of (euro)1,000 or an integral multiple thereof. The Company shall publicly
announce the results of the Net Proceeds Offer on or as soon as practicable
after the Purchase Date.
If the Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest and
Additional Interest, if any, in each case to the Purchase Date, shall be paid to
the Person in whose name a Note is registered at the close of business on such
record date, and no additional interest shall be payable to Holders pursuant to
the Net Proceeds Offer.
ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company shall pay or cause to be paid the principal, Redemption
Price and Purchase Price of, and interest on the Notes on the dates, in the
amounts and in the manner provided herein and in the Notes. Principal,
Redemption Price, Purchase Price and interest shall be considered paid on the
date due if the Paying Agent, if other than the Company, as of 12:00 noon in the
place of such Paying Agent's office on the due date, holds money deposited by
the Company in immediately available funds and designated for and sufficient to
pay the aggregate amount then due. The Company shall pay all Additional
Interest, if any, on the dates, in the amounts and in the manner set forth in
the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal, Redemption Price
and Purchase Price at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.2. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, the City of
New York, in London, England and, so long as the Notes are admitted to the
Official List of the Luxembourg Stock Exchange and the rules of such stock
exchange so require, in Luxembourg an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
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 Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligations to maintain an office or agency in the Borough of
Manhattan, the City of New York, in London, England and, so long as the Notes
are admitted to the Official List of the Luxembourg Stock Exchange and the rules
of such stock exchange so require, in Luxembourg, for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Offices of the
Trustee in the Borough of Manhattan, the City of New York, in London, England
and in Luxembourg and the office of the Luxembourg Paying Agent as such offices
or agencies of the Company in accordance with Section 2.3. The Trustee may
resign such agency at any time by giving written notice to the Company no later
than 30 days prior to the effective date of such resignation.
Section 4.3. Reports to Holders.
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company will furnish the
Holders of Notes (or make publicly available through the Commission's electronic
data gathering and retrieval ("EDGAR") database):
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of the Company and its Restricted Subsidiaries separate from the
financial condition and results of operations of the Unrestricted
Subsidiaries of the Company, if any) and, with respect to the annual
information only, a report thereon by the Company's certified independent
accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports,
in each case within the time periods specified in the Commission's rules
and regulations.
In addition, following the consummation of the Exchange Offer, 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 within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. So long as the Notes are admitted to the Official List of the
Luxembourg Stock Exchange, copies of such reports shall be available at the
specified office of the Paying Agent and Transfer Agent in Luxembourg. In
addition, for so long as any Notes remain outstanding, the Company will furnish
to the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Section 4.4. Compliance Certificate.
The Company and each Guarantor shall deliver to the Trustee, within
120 days after the end of each fiscal year, an Officers' Certificate further
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture in all
material respects, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture in all material respects and is not in Default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(and, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default) of which he or she may have knowledge.
The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, promptly upon any Officer of the Company becoming aware
of any Default or Event of Default an Officers' Certificate specifying such
Default or Event of Default.
Section 4.5. Taxes.
The Company shall pay or discharge, and shall cause each of its
Subsidiaries to pay or discharge, prior to delinquency, all material taxes,
assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment would
not reasonably be expected to have a Material Adverse Effect.
Section 4.6. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that (to the extent that it lawfully may do so) it shall not,
by resort to any such law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit the execution of
every such power as though such law has not been enacted.
Section 4.7. Limitation on Restricted Payments.
(1) The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly:
(a) declare or pay any dividend or make any distribution (other than
dividends or distributions payable in Qualified Capital Stock of the
Company) on or in respect of shares of the Company's Capital Stock to
holders of such Capital Stock;
(b) purchase, redeem or otherwise acquire or retire for value any
Capital Stock of the Company or any warrants, rights or options to purchase
or acquire shares of any class of such Capital Stock;
(c) make any principal payment on, purchase, defease, redeem, prepay,
decrease or otherwise acquire or retire for value, prior to any scheduled
final maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness of the Company that is subordinate or junior in right of
payment to the Notes; or
(d) make any Investment (other than Permitted Investments);
(each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment") if at the time of such Restricted Payment
or immediately after giving effect thereto,
(i) a Default or an Event of Default shall have occurred and be
continuing; or
(ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.9 of this Indenture; provided, however, that
for purposes of this clause (ii), the Consolidated Fixed Charge
Coverage Ratio of the Company, after giving effect to such Restricted
Payment, must be greater than 3.0 to 1.0; or
(iii) the aggregate amount of Restricted Payments (including such
proposed Restricted Payment) made subsequent to the June 28, 2002 (the
amount expended for such purposes, if other than in cash, being the
fair market value of such property as determined in good faith by the
Board of Directors of the Company) shall exceed the sum of:
(v) 75% of the cumulative Consolidated Net Income (or if
cumulative Consolidated Net Income shall be a loss, minus 100% of such
loss) of the Company earned subsequent to June 28, 2002 and on or
prior to the date the Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); provided, that
for purposes of this paragraph (v), the aggregate provision or benefit
for income taxes used to calculate Consolidated Net Income for any
period after the Issue Date in accordance with GAAP shall be replaced
with income taxes paid (or received) in cash; plus
(w) 100% of the aggregate net cash proceeds received by the
Company from any Person (other than a Restricted Subsidiary of the
Company) from the issuance and sale subsequent to June 28, 2002 and on
or prior to the Reference Date of Qualified Capital Stock of the
Company or warrants, options or other rights to acquire Qualified
Capital Stock of the Company (but excluding any debt security that is
convertible into, or exchangeable for, Qualified Capital Stock); plus
(x) without duplication of any amounts included in Section
4.7(1)(iii)(w) above, 100% of the aggregate net cash proceeds of any
equity contribution received by the Company from a holder of the
Company's Capital Stock (excluding, in the case of Section
4.7(1)(iii)(w) and this Section 4.7(1)(iii)(x), any net cash proceeds
from a Public Equity Offering to the extent used to redeem the Notes
in compliance with the provisions set forth under Section 3.8 of this
Indenture); plus
(y) without duplication, the sum of:
(1) the aggregate amount returned in cash on or with respect
to Investments (other than Permitted Investments) made subsequent
to June 28, 2002, whether through interest payments, principal
payments, dividends or other distributions or payments;
(2) the net cash proceeds received by the Company or any of
its Restricted Subsidiaries from the disposition of all or any
portion of Investments (other than Permitted Investments) made
subsequent to June 28, 2002 other than to a Restricted Subsidiary
of the Company; and
(3) upon redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of such Subsidiary;
provided, however, that the sum of amounts governed by clauses
(y)(1) and (y)(2) above and this clause (y)(3) shall first be
included under this Section 4.7(1)(iii)(y) and, to the extent
that the sum of clauses (y)(1) and (y)(2) above and this clause
(y)(3) exceeds the aggregate amount of all Investments (other
than Permitted Investments) made subsequent to June 28, 2002,
shall be included under Section 4.7(1)(iii)(v) as included in
Consolidated Net Income; plus
(z) $25 million.
(2) Notwithstanding the foregoing, the provisions of this Section 4.7
do not prohibit:
(a) the payment of any dividend within 60 days after the date of
declaration of such dividend if the dividend would have been permitted on
the date of declaration;
(b) the acquisition or redemption of any shares of Capital Stock of
the Company, either (i) solely in exchange for shares of Qualified Capital
Stock of the Company or (ii) through the application of net proceeds of a
substantially concurrent sale for cash (other than to a Restricted
Subsidiary of the Company) of shares of Qualified Capital Stock of the
Company;
(c) the acquisition or redemption of any Indebtedness of the Company
that is subordinate or junior in right of payment to the Notes either (i)
solely in exchange for shares of Qualified Capital Stock of the Company or
(ii) through the application of net proceeds of (a) a substantially
concurrent sale for cash (other than to a Restricted Subsidiary of the
Company) of shares of Qualified Capital Stock of the Company or (b) if no
Default or Event of Default shall have occurred and be continuing,
Refinancing Indebtedness;
(d) so long as no Default or Event of Default shall have occurred and
be continuing, repurchases by the Company of Common Stock of the Company
(or options or warrants to purchase such Common Stock) from directors,
officers and employees of the Company or any of its Subsidiaries or their
authorized representatives upon the death, disability, retirement or
termination of employment of such directors, officers and employees, in an
aggregate amount not to exceed $3 million in any calendar year;
(e) on or before 200 days after June 28, 2002, the partial or complete
redemption of any one or more of (i) the 738 shares of the Company's
outstanding Series A Preferred Stock, $100 par value, (ii) the 647 shares
of the Company's outstanding Series B Preferred Stock, $100 par value, and
(iii) the 5,500,000 shares of the Company's outstanding Profit
Participation Certificates, DM100 par value, in each case including any
accrued and unpaid dividends thereon, using as consideration the Company's
notes or loans receivable from its Affiliates and existing as of the Issue
Date (including accrued and unpaid interest thereon);
(f) on or before 200 days from June 28, 2002, the partial or complete
conversion into Qualified Capital Stock of the Company of any one or more
of (i) the 738 shares of the Company's outstanding Series A Preferred
Stock, $100 par value, (ii) the 647 shares of the Company's outstanding
Series B Preferred Stock, $100 par value, and (iii) the 5,500,000 shares of
the Company's outstanding Profit Participation Certificates, DM100 par
value, in each case including any accrued and unpaid dividends thereon;
(g) on or before 200 days from June 28, 2002, Date, the dividend or
other transfer by the Company to Kronos of all or a portion of the
Company's notes or loans receivable from its Affiliates and existing as of
the Issue Date (including accrued and unpaid interest thereon);
(h) on or before 200 days from June 28, 2002, the redemption of any
Qualified Capital Stock of the Company, using as consideration all or a
portion of the Company's notes receivable from Affiliates and existing as
of the Issue Date (including accrued and unpaid interest thereon); and
(i) one or more Restricted Payments of the net proceeds from the
issuance and sale of the Company's 8-7/8% Senior Secured Notes due 2009
issued in June 2002, on or promptly after June 28, 2002, in an aggregate
amount up to the amount of the net proceeds from the issuance and sale
thereof.
In determining the aggregate amount of Restricted Payments made
subsequent to June 28, 2002 in accordance with Section 4.7(1)(iii) above,
amounts expended pursuant to Section 4.7(2)(a), Section 4.7(2)(b)(ii) (to the
extent included in the calculation of net cash proceeds in Section
4.7(1)(iii)(w)), Section 4.7(2)(c)(ii)(a) (to the extent included in the
calculation of net cash proceeds in Section 4.7(1)(iii)(w)) and 4.7(2)(d) shall
be included in such calculation and amounts expended pursuant to Section
4.7(2)(b)(i), Section 4.7(2)(b)(ii) (to the extent not included in the
calculation of net cash proceeds in Section 4.7(1)(iii)(w) above), Section
4.7(2)(c)(i), Section 4.7(2)(c)(ii)(a) (to the extent not included in the
calculation of net cash proceeds in Section 4.7(1)(iii)(w)), Section
4.7(2)(c)(ii)(b), Section 4.7(2)(e), Section 4.7(2)(f), Section 4.7(2)(g),
Section 4.7(2)(h) and Section 4.7(2)(i) shall be excluded from such calculation,
in each case without duplication.
Section 4.8. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any such Restricted Subsidiary of the Company to:
(1) pay dividends or make any other distributions on or in respect of
its Capital Stock;
(2) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary of the
Company; or
(3) transfer any of its property or assets to the Company or any other
Restricted Subsidiary of the Company,
except, in each case, for such encumbrances or restrictions existing under or by
reason of:
(a) applicable law;
(b) the Notes or this Indenture;
(c) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of any Restricted Subsidiary of the Company;
(d) any instrument governing Acquired Indebtedness, which encumbrance
or restriction is not applicable to properties or assets, other than the
properties or assets so acquired;
(e) agreements existing on the Issue Date to the extent and in the
manner such agreements are in effect on the Issue Date and any amendments,
extensions, renewals or substitutions thereof provided that the terms of
such amendments, extensions, renewals or substitutions are not materially
more restrictive in the aggregate as determined by the Board of Directors
of the Company in its good faith judgment;
(f) customary restrictions in the Credit Agreement, to the extent and
in the manner in effect on the date of effectiveness thereof, and customary
restrictions in other agreements governing Permitted Indebtedness to the
extent such restrictions would not reasonably be expected to have an
adverse effect on the ability of the Company to timely pay the principal
and interest on the Notes;
(g) customary restrictions on the transfer of assets subject to any
Lien permitted under this Indenture imposed by the holder of such Lien;
(h) customary restrictions imposed by any agreement to sell assets or
Capital Stock permitted under this Indenture to any Person pending the
closing of such sale;
(i) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business;
(j) in the case of a joint venture or similar entity 50% owned by the
Company or a Restricted Subsidiary of the Company, customary provisions in
joint venture agreements and other similar agreements (in each case
relating solely to the respective joint venture or similar entity or the
equity interests therein) entered into in the ordinary course of business;
or
(k) an agreement governing Indebtedness incurred to Refinance the
Indebtedness issued, assumed or incurred pursuant to an agreement referred
to in clause (b), (d), (e) or (f) above; provided, however, that the
provisions relating to such encumbrance or restriction contained in any
such Indebtedness are not materially more restrictive in the aggregate as
determined by the Board of Directors of the Company in its good faith
judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (b), (d), (e) or (f).
Section 4.9. Limitation on Incurrence of Additional Indebtedness.
(1) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
(other than Permitted Indebtedness); provided, however, that if no Default or
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company or any of
its Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and any Restricted Subsidiary of the Company that is not or will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness,
in each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio
of the Company is greater than 2.5 to 1.0.
(2) The Company and any Restricted Subsidiary that is a Guarantor will
not incur any Indebtedness that is expressly subordinated to any senior
Indebtedness of the Company or any such Guarantor unless such Indebtedness is
also expressly subordinated on the same basis to the Notes or any such
Guarantees.
Section 4.10. Limitation on Asset Sales.
(1) The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless:
(a) the Company or the applicable Restricted Subsidiary, as the case
may be, receives consideration at the time of such Asset Sale at least
equal to the fair market value of the assets sold or otherwise disposed of
as determined in good faith by the Company's Board of Directors;
(b) at least 75% of the consideration received by the Company or the
Restricted Subsidiary, as the case may be, from such Asset Sale shall be in
the form of cash or Cash Equivalents and is received at the time of such
disposition; provided, however, that for the purposes of this Section 4.10,
the amount of any liability that would be shown on a consolidated balance
sheet of the Company or such Restricted Subsidiary, as the case may be, in
accordance with GAAP and immediately prior to the time of such Asset Sale,
other than liabilities that are by their terms expressly subordinated to
the Notes, that are assumed by the transferee of any such Asset Sale, will
be deemed to be cash; and
(c) upon the consummation of an Asset Sale, the Company shall apply,
or cause such Restricted Subsidiary to apply, the Net Cash Proceeds
relating to such Asset Sale within 365 days of receipt thereof either:
(i) to prepay any secured senior Indebtedness of the Company or
senior Indebtedness of a Restricted Subsidiary and, in the case of any
such senior Indebtedness under any revolving credit facility, effect a
permanent reduction in the availability under such revolving credit
facility;
(ii) to acquire or otherwise make an investment or enter into a
binding commitment to acquire or otherwise make an investment in
properties and assets (including Capital Stock) that replace the
properties and assets (including Capital Stock) that were the subject
of such Asset Sale or in properties and assets (including Capital
Stock) that will be used in the business of the Company and its
Restricted Subsidiaries as existing on the Issue Date or in businesses
reasonably related thereto ("Replacement Assets"); and/or
(iii) a combination of prepayment and investment permitted by the
foregoing Sections 4.10(1)(c)(i) and (c)(ii).
(2) On the 366th day after an Asset Sale or such earlier date, if any,
as the Board of Directors of the Company or of such Restricted Subsidiary
determines not to apply the Net Cash Proceeds relating to such Asset Sale as set
forth in Sections 4.10(1)(c)(i), (1)(c)(ii) and (1)(c)(iii) (each, a "Net
Proceeds Offer Trigger Date"), the aggregate amount of Net Cash Proceeds which
have not been applied on or before such Net Proceeds Offer Trigger Date as
permitted in Sections 4.10(1)(c)(i), (1)(c)(ii) and (1)(c)(iii) (each a "Net
Proceeds Offer Amount") shall be applied by the Company or such Restricted
Subsidiary to make an offer to purchase (the "Net Proceeds Offer") pursuant to
Section 3.11 and this Section 4.10 to all Holders on a date not less than 30 nor
more than 45 days following the applicable Net Proceeds Offer Trigger Date, from
all Holders on a pro rata basis, that amount of Notes equal to the Net Proceeds
Offer Amount at a price equal to 100% of the principal amount of the Notes to be
purchased, plus accrued and unpaid interest thereon, if any, to the Purchase
Date; provided, however, that if at any time any non-cash consideration received
by the Company or any Restricted Subsidiary of the Company, as the case may be,
in connection with any Asset Sale is converted into or sold or otherwise
disposed of for cash (other than interest received with respect to any such
non-cash consideration), then such conversion or disposition shall be deemed to
constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be
applied in accordance with this Section 4.10.
(3) Notwithstanding paragraphs (1) and (2) of this Section 4.10, the
Company and its Restricted Subsidiaries may consummate an Asset Sale without
complying with such paragraphs to the extent that:
(a) at least 80% of the consideration for such Asset Sale constitutes
Replacement Assets; and
(b) such Asset Sale is for fair market value; provided that any
consideration that does not constitute Replacement Assets that is received
by the Company or any of its Restricted Subsidiaries in connection with any
Asset Sale permitted under this paragraph (3) shall constitute Net Cash
Proceeds and shall be subject to the provisions of paragraphs (1) and (2)
of this Section 4.10.
(4) The Company or such Restricted Subsidiary may defer the Net
Proceeds Offer until there is an aggregate unutilized Net Proceeds Offer Amount
equal to or in excess of $20 million resulting from one or more Asset Sales (at
which time, the entire unutilized Net Proceeds Offer Amount, and not just the
amount in excess of $20 million, shall be applied as required pursuant to this
Section 4.10).
(5) In the event of the transfer of substantially all (but not all) of
the property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.1 of this
Indenture, which transaction does not constitute a Change of Control, the
successor corporation shall be deemed to have sold the properties and assets of
the Company and its Restricted Subsidiaries not so transferred for purposes of
this Section 4.10, and shall comply with the provisions of this Section 4.10
with respect to such deemed sale as if it were an Asset Sale. In addition, the
fair market value of such properties and assets of the Company or its Restricted
Subsidiaries deemed to be sold shall be deemed to be Net Cash Proceeds for
purposes of this Section 4.10.
(6) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of
any securities laws or regulations conflict with this Section 4.10, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.10 by virtue
thereof.
(7) After consummation of any Net Proceeds Offers, any Net Proceeds
Offer Amount not applied to any such purchase may be used by the Company for any
purpose permitted by the other provisions of this Indenture.
(8) To the extent that any or all of the Net Cash Proceeds related to
an Asset Sale of a Restricted Subsidiary are prohibited or delayed by applicable
law from being repatriated (in the form of dividends, loans or otherwise) to the
Company, the portion of such Net Cash Proceeds so affected shall not be required
to be applied at the time provided by this Section 4.10, but may be retained by
the applicable Restricted Subsidiary so long, but only so long, as such
applicable law will not permit repatriation to the Company (the Company having
agreed to cause the applicable Restricted Subsidiary to promptly take all
actions required by the applicable law to permit such repatriation). After such
repatriation of any such affected Net Cash Proceeds is permitted under such
applicable law, such repatriation shall be immediately effected and such
repatriated Net Cash Proceeds will be applied in a manner as described in this
Section 4.10.
Section 4.11. Limitations on Transactions with Affiliates.
(1) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
Transaction"), other than Affiliate Transactions on terms that are no less
favorable than those that might reasonably have been obtained in a comparable
transaction at such time on an arm's-length basis from a Person that is not an
Affiliate of the Company or such Restricted Subsidiary.
(2) All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property with a fair market value in excess of $2 million
shall be approved by the Board of Directors of the Company or such Restricted
Subsidiary, as the case may be, such approval to be evidenced by a Board
Resolution stating that such Board of Directors has determined that such
transaction complies with the foregoing provisions. If the Company or any
Restricted Subsidiary of the Company enters into an Affiliate Transaction (or a
series of related Affiliate Transactions related to a common plan) that involves
an aggregate fair market value of more than $12.5 million, the Company or such
Restricted Subsidiary, as the case may be, shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction or
series of related transactions to the Company or the relevant Restricted
Subsidiary, as the case may be, from a financial point of view, from an
Independent Financial Advisor and file the same with the Trustee.
(3) The restrictions set forth in Section 4.11(1) and 4.11(2) shall
not apply to, and the term "Affiliate Transaction" shall not include, any of the
following (each of the following being a "Permitted Affiliate Transaction"):
(a) reasonable fees and compensation paid to and indemnity provided on
behalf of officers, directors, employees or consultants of the Company or
any Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management;
(b) transactions to the extent exclusively between or among the
Company and any of its Restricted Subsidiaries or to the extent exclusively
between or among such Restricted Subsidiaries, provided such transactions
are not otherwise prohibited by this Indenture;
(c) arrangements under the Company's transfer pricing guidelines, the
Intercorporate Services Agreement, dated as of January 1, 2005, among
Kronos Worldwide, Inc., Kronos (US), Inc., the Company and Kronos Canada,
Inc., the Services Agreement, dated as of January 1, 2004, among the
Company, Kronos Europe S.A./N.V., Kronos (US), Inc., Kronos Titan GmbH,
Kronos Denmark ApS, Kronos Canada, Inc., Kronos Limited, Societe
Industrielle Du Titane, S.A., Kronos B.V., Kronos Titan AS and Titania AS,
the Tax Agreement, dated as of May 28, 2002, by and between Kronos, Inc.
(now known as Kronos Worldwide, Inc.) and the Company, the Agency
Agreement, dated as of January 1, 2004, among the Company, Kronos Titan
GmbH, Kronos Europe S.A./N.V., Kronos Canada, Inc., Kronos Titan AS and
Societe Industrielle Du Titane, S.A., the Titanium Dioxide Products and
Titanium Chemicals Distribution Agreement, dated as of January 1, 2005,
among Kronos Titan GmbH, Kronos Europe, S.A./N.V., Kronos Canada, Inc., =
Kronos Titan AS, Kronos (US), Inc., Kronos Denmark ApS, Kronos Titan GmbH,
Kronos Limited, Societe Industrielle Du Titane, S.A. and Kronos B.V., the
Raw Material Purchase and Sale Agreement, dated as of January 1, 2004,
among Kronos (US), Inc., Kronos Titan GmbH, Kronos Europe S.A./N.V. and
Kronos Canada, Inc., the Assignment and Assumption Agreement, dated as of
January 1, 1999, by and between Kronos (US), Inc. and the Company, the
Amended and Restated Technology Transfer and License Agreement, dated as of
May 30, 1990, between Kronos (USA), Inc. (now known as Kronos Worldwide,
Inc.) and Kronos Titan-GmbH, the Amended and Restated Technology, Patent
and Trademark License Agreement, dated as of May 30, 1990, by and between
Kronos (USA), Inc. (now known as Kronos Worldwide, Inc.) and Kronos Europe
S.A./N.V., the Amended and Restated Technology, Patent and Trademark
License Agreement, dated as of May 30, 1990, by and between Kronos (USA),
Inc. (now known as Kronos Worldwide, Inc.) and Kronos Canada, Inc., the
Cross License Agreement, effective January 1, 1999, between Kronos Inc.
(now known as Kronos Worldwide, Inc.) and the Company and the Trademark Use
Agreement, dated as of May 30, 1990, between Kronos, Inc. (now known as
Kronos (US), Inc.), Kronos (USA), Inc. (now known as Kronos Worldwide,
Inc.), Kronos Titan-GmbH and = Kronos Titan A/S and amended effective as of
October 16, 1993 and January 1, 1999, in each case as in effect as of the
Issue Date or any amendment thereto or any transaction contemplated thereby
(including pursuant to any amendment thereto) in any replacement agreement
thereto so long as any such amendment or replacement agreement is not more
disadvantageous to the Holders in any material respect than the original
agreement as in effect on the Issue Date or is required by law or
regulatory authority or the Transfer Pricing Guidelines issued by the
Organization for Economic Cooperation and Development;
(d) purchases and sales of product and raw materials, insurance
arrangements and payments, all of the foregoing in the ordinary course of
business consistent with past practice or as may be necessary to
accommodate legal, regulatory or other changes in the business of the
Company and its Restricted Subsidiaries; and
(e) Restricted Payments (or Permitted Investments set forth in clauses
(4), (7) and (12) of the definition thereof contained in Section 1.1)
permitted by this Indenture.
Section 4.12. Limitation on Liens.
The Company will not, and will not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom,
unless:
(1) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Notes, the Notes are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; and
(2) in all other cases, the Notes are equally and ratably secured,
except for:
(a) Liens existing as of the Issue Date to the extent and in the
manner such Liens are in effect on the Issue Date and any amendments,
extensions, renewals or substitutions thereof provided that the
property subject to such Liens as amended, extended, renewed or
substituted is not materially different from that initially subject to
such Liens as determined by the Board of Directors of the Company in
their good faith judgment;
(b) Liens securing Indebtedness under the Credit Agreement;
(c) Liens securing senior Indebtedness incurred pursuant to
clauses (11) or (12) of the definition of Permitted Indebtedness, as
defined in Section 1.1;
(d) Liens securing the Notes and any Guarantees;
(e) Liens of the Company or a Wholly Owned Restricted Subsidiary
of the Company on assets of any Restricted Subsidiary of the Company;
(f) Liens securing Indebtedness incurred to Refinance any
Indebtedness which has been secured by a Lien permitted under this
Indenture and which has been incurred without violation of this
Indenture; provided, however, that such Liens do not extend to or
cover any property or assets of the Company or any of its Restricted
Subsidiaries not securing the Indebtedness so Refinanced; and
(g) Permitted Liens.
In the event that any Lien the existence of which gives rise to a Lien
securing the Notes pursuant to the provisions of this Section 4.12 ceases to
exist, the Lien securing the Notes required by this Section 4.12 shall
automatically be released and the Trustee shall execute appropriate
documentation.
Section 4.13. Conduct of Business.
The Company and its Restricted Subsidiaries will not engage in any
businesses which are not the same, similar or reasonably related to, or
ancillary or complementary to, the businesses in which the Company and its
Restricted Subsidiaries are engaged on the Issue Date.
Section 4.14. Maintenance of Properties and Insurance.
(1) The Company shall cause all material properties owned by or leased
by it or any of the Restricted Subsidiaries used in the conduct of its business
or the business of any of the Restricted Subsidiaries to be maintained and kept
in normal condition, repair and working order (reasonable wear and tear
excepted) and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as, and to the extent
that, in its judgment may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted; provided,
however, that nothing in this Section 4.14(1) shall prevent the Company or any
of the Restricted Subsidiaries from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or of the Board of Directors of any Restricted Subsidiary, or of an
officer (or other agent employed by the Company or of any of the Restricted
Subsidiaries) of the Company or any of its Restricted Subsidiaries having
managerial responsibility for any such property, desirable in the conduct of the
business of the Company or any Restricted Subsidiary, and if such discontinuance
or disposal would not reasonably be expected to have a Material Adverse Effect.
(2) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, workers' compensation and
interruption of business insurance to the extent available on commercially
reasonable terms; provided, however, that nothing in this Section 4.14(2) shall
prevent the Company or any of the Restricted Subsidiaries from discontinuing any
insurance, or modifying any such deductibles, retentions, self-insured amounts
or co-insurance provisions, if such discontinuance or modification is, in the
judgment of the Board of Directors of the Company or of the Board of Directors
of any Restricted Subsidiary, or of an officer (or other agent employed by the
Company or of any of the Restricted Subsidiaries) of the Company or any of its
Restricted Subsidiaries having managerial responsibility for any such insurance,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary, and if such discontinuance or modification would not reasonably be
expected to have a Material Adverse Effect.
Section 4.15. Offer to Purchase upon Change of Control.
Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require that the Company purchase all or any part (equal to
(euro)50,000 or an integral multiple of (euro)1,000 in excess thereof) of such
Holder's Notes (a "Change of Control Offer") at a Purchase Price equal to 101%
of the aggregate principal amount thereof, together with accrued and unpaid
interest and Additional Interest, if any, thereon to the Purchase Date. The
Change of Control Offer shall be made in compliance with the applicable
procedures set forth in Article III of this Indenture and shall include all
instructions and materials reasonably necessary to enable Holders to tender
their Notes.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company, and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the purchase
of Notes pursuant to a Change of Control Offer. To the extent that the
provisions of any securities laws or regulations conflict with this Section
4.15, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.15 by virtue of such compliance.
Section 4.16. Limitation of Guarantees by Restricted Subsidiaries.
(1) The Company will not permit any of its Restricted Subsidiaries,
directly or indirectly, by way of the pledge of any intercompany note or
otherwise, to assume, guarantee or in any other manner become liable with
respect to any Indebtedness of the Company or any other Restricted Subsidiary of
the Company (other than: (i) Indebtedness and other obligations under the Credit
Agreement; (ii) Permitted Indebtedness of a Restricted Subsidiary of the
Company; (iii) Indebtedness under Currency Agreements or Commodity Agreements in
reliance on clause (5) of the definition of Permitted Indebtedness; or (iv)
Interest Swap Obligations incurred in reliance on clause (4) of the definition
of Permitted Indebtedness), unless, in any such case:
(a) such Restricted Subsidiary executes and delivers a supplemental
indenture to this Indenture, providing a guarantee of payment of the Notes
by such Restricted Subsidiary; and
(b) if such assumption, guarantee or other liability of such
Restricted Subsidiary is provided in respect of Indebtedness that is
expressly subordinated to the Notes (or a Guarantee of the Notes), the
guarantee or other instrument provided by such Restricted Subsidiary in
respect of such subordinated Indebtedness shall be subordinated to the
Guarantee pursuant to subordination provisions no less favorable to the
Holders of the Notes than those contained in such other Indebtedness.
(2) Notwithstanding the foregoing, any such Guarantee by a Restricted
Subsidiary of the Notes shall (and shall provide by its terms that it shall) be
automatically and unconditionally released and discharged, without any further
action required on the part of the Trustee or any Holder, upon:
(a) the unconditional release of such Restricted Subsidiary from its
assumption, guarantee or other liability in respect of the Indebtedness in
connection with which such Guarantee was executed and delivered pursuant to
Section 4.16(1); or
(b) any sale or other disposition (by merger or otherwise) to any Person
which is not a Restricted Subsidiary of the Company of all of the Capital Stock
in, or all or substantially all of the assets of, such Restricted Subsidiary;
provided that (i) such sale or disposition of such Capital Stock or assets is
otherwise in compliance with the terms of this Indenture and (ii) such
assumption, guarantee or other liability of such Restricted Subsidiary has been
released by the holders of the other Indebtedness so guaranteed.
Section 4.17. Provision of Security.
The Company will not form, acquire or maintain any direct Restricted
Subsidiary (other than Kronos Chemie-GmbH and Kronos World Services, S.A./N.V.,
so long as each such company shall have gross assets of less than $3 million
(net of assets contributed thereto for the express purposes of expunging
contingent liabilities), and any other direct Restricted Subsidiary having gross
assets of less than $1 million), unless, concurrently with the formation,
acquisition or maintenance of such Subsidiary, the Company shall execute and
deliver, or cause to be executed and delivered, to the Trustee or the Collateral
Agent for their respective benefit as Trustee or Collateral Agent or for the
benefit of Holders, one or more pledge agreements, in form and substance
reasonably satisfactory to the Trustee or the Collateral Agent for their
respective benefit as Trustee or Collateral Agent or for the benefit of the
Holders, pursuant to which not less than 65% of the Capital Stock of such
Subsidiary is pledged to the Trustee or the Collateral Agent for their
respective benefit as Trustee or Collateral Agent or for the benefit of the
Holders and the Company shall, concurrently therewith, execute and deliver all
documents, instruments and agreements in form and substance reasonably
satisfactory to the Trustee or the Collateral Agent for their respective benefit
as Trustee or Collateral Agent or for the benefit of the Holders reasonably
necessary in the opinion of the Trustee or the Collateral Agent for their
respective benefit as Trustee or Collateral Agent or for the benefit of the
Holders to grant and maintain at all times a fully perfected senior Lien on the
collateral pledged pursuant to such pledge agreements.
Section 4.18. Limitation on Preferred Stock of Restricted Subsidiaries.
The Company will not permit any of its Restricted Subsidiaries to
issue any Preferred Stock (other than to the Company or to a Wholly Owned
Restricted Subsidiary of the Company) or permit any Person (other than the
Company or a Wholly Owned Restricted Subsidiary of the Company) to own any
Preferred Stock of any Restricted Subsidiary of the Company.
Section 4.19. Payments to the Collateral Agent.
Notwithstanding any other provision of this Indenture or the Notes,
the Company irrevocably and unconditionally undertakes to pay to the Collateral
Agent, as a creditor in its own right and not as a representative of the
Holders, sums equal to and in the currency of, its Primary Obligations as when
the same fall due for payment under this Indenture or the Notes (the "Parallel
Obligations").
The rights of the Holders to receive payment of the Primary
Obligations are several and separate and independent from, without prejudice to,
the rights of the Collateral Agent to receive payment of the Parallel
Obligations. The Collateral Agent shall have its own independent right to demand
payment of the Parallel Obligations.
The amounts due and payable by the Company under this Section 4.19
shall be decreased to the extent that the Company has paid any amounts to (i)
any Holder in respect of the Primary Obligations or (ii) to the Collateral Agent
in respect of the Parallel Obligations.
Section 4.20. Corporate Existence.
Except as otherwise permitted by Article V, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other existence
of each of the Restricted Subsidiaries in accordance with the respective
organizational documents of each Restricted Subsidiary (as the same may be
amended from time to time); provided, however, that the Company shall not be
required to preserve any such corporate, partnership or other existence of any
Restricted Subsidiary if the Board of Directors of the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Restricted Subsidiaries, taken as a whole, and
that the loss thereof would not reasonably be expected to have a Material
Adverse Effect.
Section 4.21. Compliance with Laws.
The Company shall comply, and shall cause each of the Restricted
Subsidiaries to comply, with all applicable statutes, rules, regulations, orders
and restrictions of the European Union, any state that is a member of the
European Union on the Issue Date, the United States, any states thereof, the
District of Columbia or the Kingdom of Norway and of any governmental
department, commission, board, regulatory authority, bureau, agency and
instrumentality of the foregoing, each to the extent applicable, in respect of
the conduct of their respective businesses and the ownership of their respective
properties, except for such noncompliances as would not in the aggregate
reasonably be expected to have a Material Adverse Effect.
ARTICLE V.
SUCCESSORS
Section 5.1. Merger, Consolidation and Sale of Assets.
(1) The Company will not, in a single transaction or series of related
transactions, consolidate or merge with or into any Person, or sell, assign,
transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless:
(a) either:
(i) the Company shall be the surviving or continuing corporation;
or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and of the
Company's Restricted Subsidiaries substantially as an entirety (the
"Surviving Entity"):
(A) shall be a corporation organized and validly existing
under the laws of the United States, any state thereof or the
District of Columbia; and
(B) shall expressly assume, by supplemental indenture (in
form and substance satisfactory to the Trustee), executed and
delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the
Notes and the performance of every covenant of the Notes, this
Indenture and the Registration Rights Agreement on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction and the
assumption contemplated by Section 5.1(1)(a)(ii)(B) (including giving
effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be, (a)
shall have a Consolidated Net Worth equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transaction
and (b) shall be able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.9;
(c) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by Section 5.1(1)(a)(ii)(B)
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted in connection with or in respect of the transaction), no Default or
Event of Default shall have occurred or be continuing; and
(d) the Company or the Surviving Entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have
been satisfied.
(2) For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries of the Company, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(3) Notwithstanding the foregoing, neither the Company nor any
Subsidiary will consolidate or merge with NL Industries.
(4) Each Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.10 of
this Indenture) will not, and the Company will not cause or permit any Guarantor
to, consolidate with or merge with or into any Person other than the Company or
any other Guarantor unless:
(a) the entity formed by or surviving any such consolidation or merger
(if other than the Guarantor) or to which such sale, lease, conveyance or
other disposition shall have been made is a corporation organized and
existing under the laws of the European Union, any state that is a member
of the European Union on the Issue Date, the United States, any State
thereof, the District of Columbia or the Kingdom of Norway;
(b) such entity assumes by supplemental indenture all of the
obligations of the Guarantor on the Guarantee;
(c) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(d) immediately after giving effect to such transaction and the use of
any net proceeds therefrom on a pro forma basis, the Company (i) shall have
a Consolidated Net Worth equal to or greater than the Consolidated Net
Worth of the Company immediately prior to such transaction and (ii) shall
be able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.9 of this Indenture.
(5) Any merger or consolidation of a Guarantor with and into the
Company (with the Company being the surviving entity) or another Guarantor need
only comply with Section 5.1(1)(d).
Section 5.2. Successor Corporation Substituted.
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Company in accordance with Section
5.1, in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such surviving entity
had been named as such.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
Each of the following constitutes an "Event of Default":
(1) the failure to pay interest on any Note when the same becomes due
and payable and the default continues for a period of 30 days;
(2) the failure to pay the principal of any Note, when such principal
becomes due and payable, at maturity, upon redemption or otherwise
(including the failure to make a payment to purchase Notes tendered
pursuant to a Change of Control Offer or a Net Proceeds Offer);
(3) a default in the observance or performance of any other covenant
or agreement contained in this Indenture or any Security Document which
default continues for a period of 45 days after the Company receives
written notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Notes (except in the case of a default
with respect to Section 5.1 of this Indenture, which will constitute an
Event of Default with such notice requirement but without such passage of
time requirement);
(4) the failure to pay at final maturity (after giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the acceleration of the final stated maturity of any such
Indebtedness (which acceleration is not rescinded, annulled or otherwise
cured within 20 days of receipt by the Company or such Restricted
Subsidiary of notice of any such acceleration), if the aggregate principal
amount of such Indebtedness, together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final
maturity or which has been accelerated (in each case with respect to which
the 20-day period described above has elapsed), aggregates $20 million or
more at any time;
(5) the repudiation by the Company of any of its obligations under any
Security Document, or the unenforceability of any Security Document against
the Company, if such unenforceability reasonably would be expected to
result in a material adverse effect on the Liens granted by the Company
pursuant to such Security Documents;
(6) one or more judgments in an aggregate amount in excess of $20
million shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid or
unstayed for a period of 60 days after such judgment or judgments become
final and non-appealable;
(7) the Company or any Significant Subsidiary of the Company:
(a) commences a voluntary case under any Bankruptcy Law,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a custodian or receiver of it
or for all or substantially all of its property,
(d) makes a general assignment for the benefit of its creditors,
or
(e) admits in writing its inability to pay its debts as they
become due; or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief in an involuntary case against the Company or
any Significant Subsidiary of the Company;
(b) appoints a custodian or receiver of the Company or any
Significant Subsidiary or for all or substantially all of the property
of any of the foregoing; or
(c) orders the liquidation of the Company or any of its
Significant Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days.
Section 6.2. Acceleration.
If any Event of Default (other than an Event of Default specified in
clause (7) or (8) of Section 6.1 of this Indenture with respect to the Company)
shall occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes by written notice to the Company
(and the Trustee, if such notice is given by such Holders) may declare the
principal of and accrued and unpaid interest on the Notes to be due and payable
immediately, which notice shall specify the respective Events of Default and
that it is a "Notice of Acceleration". Upon any such declaration, the entire
principal amount of, and accrued and unpaid interest and Additional Interest, if
any, on the Notes shall become immediately due and payable.
Notwithstanding the foregoing, if an Event of Default specified in
clause (7) or (8) of Section 6.1 of this Indenture with respect to the Company
occurs and is continuing, then all unpaid principal of, and premium, if any, and
accrued and unpaid interest on all of the outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the then outstanding
Notes by written notice to the Company and the Trustee may, on behalf of the
Holders of all of the Notes, rescind and cancel such declaration and its
consequences:
(1) if the rescission would not conflict with any judgment or decree;
(2) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of
the acceleration;
(3) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid;
(4) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances;
and
(5) in the event of the cure or waiver of an Event of Default of the
type described in Section 6.1(6) of this Indenture, the Trustee shall have
received an Officers' Certificate and an Opinion of Counsel that such Event
of Default has been cured or waived.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right consequent thereto.
Section 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, interest or Additional Interest, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding, and any recovery
or judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Notes. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 6.4. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Notes may waive
any existing or past Default or Event of Default under this Indenture, and its
consequences, except a default in the payment of the principal of or interest on
any Notes. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
Section 6.5. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture that the Trustee reasonably
determines may be unduly prejudicial to the rights of other Holders of Notes or
that may subject the Trustee to personal liability and shall be entitled to the
benefit of Sections 7.1(3)(c) and 7.1(5) of this Indenture.
Section 6.6. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(1) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default (other than an Event of Default specified in
Section 6.1(7) or 6.1(8));
(2) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders of Notes offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(5) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
Notwithstanding the foregoing, if an Event of Default specified in
clause (7) or (8) of Section 6.1 of this Indenture with respect to the Company
occurs and is continuing, then all unpaid principal of, and premium, if any, and
accrued and unpaid interest on all of the outstanding Notes shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
Section 6.7. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal of, or premium, if any,
interest or Additional Interest, if any, on the Note, on or after the respective
due dates thereon (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the written consent of such
Holder.
Section 6.8. Collection Suit by Trustee.
If an Event of Default specified in Section 6.l(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Additional Interest, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and Additional Interest, if any, and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expense, disbursements and advances of the Trustee, its
agents and counsel.
Section 6.9. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents (including accountants,
experts or such other professionals as the Trustee deems necessary, advisable or
appropriate) and counsel) and the Holders of the Notes allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims, and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 of this
Indenture. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7 of this Indenture out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys, and any Collateral
Agent, for amounts due under Section 7.7 of this Indenture, including
payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, Purchase Price, Redemption Price and Additional Interest, if
any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
Purchase Price, Redemption Price and Additional Interest, if any, and
interest, respectively; and
Third: to the Company, the Guarantors, if any, or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7 of this Indenture, or a suit by Holders of more than 10%
in principal amount of the then outstanding Notes.
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such rights and powers vested in it by this Indenture, and use
the same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(a) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the TIA and the Trustee need
perform only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read into
this Indenture or the TIA against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, without investigation, as to the truth or the statements
and the correctness of the opinions expressed therein, upon and statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions required to be furnished to the Trustee under
this Indenture to determine whether or not they conform on their face to
the requirements of this Indenture but need not confirm, verify or
investigate the accuracy of any mathematical calculations or other facts
stated therein.
(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) this paragraph (3) does not limit the effect of paragraph (2) of
this Section 7.1;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5 of this Indenture.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to this Section
7.1.
(5) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request or direction of any Holders, pursuant to the provisions of this
Indenture, including, without limitation, Section 6.5, unless such Holder shall
have offered to the Trustee security and indemnity satisfactory to it against
any loss, liability or expense which might be incurred by it in compliance with
such request or direction.
(6) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
Section 7.2. Rights of Trustee.
(1) The Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in such document.
(2) Before the Trustee acts or refrain from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel of its choice and the advice of such counsel and Opinions of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(3) The Trustee may act through its attorneys, accountants, experts
and such other professionals as the Trustee deems necessary, advisable or
appropriate and shall not be responsible for the misconduct or negligence of any
attorney, accountant, expert or other such professional appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficiently
evidenced by a written order signed by two Officers of the Company.
(6) The Trustee shall not be charged with knowledge of any Default or
Event of Default under Section 6.1 of this Indenture (other than under Section
6.1(1) (subject to the following sentence) or Section 6.1(2) of this Indenture)
unless either (i) a Responsible Officer shall have actual knowledge thereof, or
(ii) the Trustee shall have received notice thereof in accordance with Section
13.2 of this Indenture from the Company or any Holder of the Notes, which notice
specifically references the Notes. The Trustee shall not be charged with
knowledge of the Company's obligation to pay Additional Interest, or the
cessation of such obligation, unless the Trustee receives written notice thereof
from the Company or any Holder.
(7) 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, directions, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(8) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its rights to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder.
(9) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any Person authorized to sign an
Officers' Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest within the meaning of the TIA it must eliminate such conflict within 90
days, apply (subject to the consent of the Company) to the Commission for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 of this
Indenture.
Section 7.4. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture, or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing, the Trustee
shall mail to Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default in payment on
any Note (including the failure to make a mandatory purchase pursuant hereto),
the Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes.
Section 7.6. Reports by Trustee to Holders of the Notes.
Within 60 days after each April 1 beginning with April 1, 2007, and
for so long as Notes remain outstanding, the Trustee shall mail to the Holders
of the Notes a brief report dated as of such reporting date that complies with
TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within
the twelve (12) months preceding the reporting date, no report need be
transmitted). The Trustee also shall comply with TIA ss. 313(b). The Trustee
shall also transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA ss. 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange.
Section 7.7. Compensation, Reimbursement and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon by the Company and the Trustee for its
acceptance of this Indenture and the rendering by it of the services required
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable out-of-pocket disbursements,
advances and expenses incurred or made by or on behalf of it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's attorneys,
accountants, experts and such other professionals as the Trustee reasonably
deems necessary, advisable or appropriate.
The Company shall indemnify the Trustee, any predecessor Trustee and
their officers, employees and agents against any and all out-of-pocket losses,
liabilities or expenses, including taxes (other than taxes based upon, measured
by or determined by the income of the Trustee) incurred by it arising out of or
in connection with the acceptance or administration of its duties under this
Indenture (including its duties under Section 9.6 of this Indenture), including
the out-of-pocket costs and expenses of enforcing this Indenture or any
Guarantee against the Company or a Guarantor (including this Section 7.7) and
defending itself against or investigating any claim (whether asserted by the
Company, any Guarantor, any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend any claim or threatened claim
asserted against the Trustee, and the Trustee shall cooperate in the defense.
The Trustee shall have the right to employ separate counsel in any such action
proceeding and participate in the investigation and defense thereof, and the
Company shall pay the reasonable fees and expenses of such separate counsel;
provided, however, that the Trustee may only employ separate counsel at the
expense of the Company if in the reasonable judgment of the Trustee (i) a
conflict of interest exists by reason of common representation or (ii) there are
legal defenses available to the Trustee that are different from or are in
addition to those available to the Company or if all parties commonly
represented do not agree as to the action (or inaction) of counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall survive
the resignation or removal of the Trustee, the satisfaction and discharge of
this Indenture and the termination of this Indenture.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal, Redemption
Price or Purchase Price of or Additional Interest, if any, or interest on,
particular Notes. Such Lien shall survive the resignation or removal of the
Trustee, the satisfaction and discharge of this Indenture and the termination of
this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(7) or (8) of this Indenture occurs, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 of this Indenture;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian, receiver or public officer takes charge of the
Trustee or its property for the purpose of rehabilitation, conversation or
liquidation; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the date on which the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee does not take office within 30 days after the
retiring trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who has
been a bona fide holder of a Note or Notes for at least six (6) months, fails to
comply with Section 7.10, such Holder of a Note may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The Company shall mail a notice of its succession to
Holder of the Notes. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all sums owing to the
Trustee hereunder have been paid and subject to the Lien provided for in Section
7.7 of this Indenture. Notwithstanding replacement of the Trustee pursuant to
this Section 7.8, the Company's obligations under Section 7.7 of this Indenture
shall continue for the benefit of the retiring Trustee.
Section 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation
that is eligible under Section 7.10 of this Indenture, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States or of any state
thereof (including the District of Columbia) that is authorized under such laws
to exercise corporate trust power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of
at least $100 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
Section 7.12. Concerning the Trustee and the Collateral.
The Trustee shall have no duty to act outside of the United States or
the United Kingdom in respect of any Collateral located in the jurisdiction
other than the United States or the United Kingdom ("Foreign Collateral") but
shall at the specific request of a majority in aggregate principal amount of the
Notes or the Company appoint a Person or Persons to act on behalf of the Holders
with respect to such Foreign Collateral. Such qualified Person or Persons and
the Trustee shall, provided the same are reasonably acceptable to the Trustee,
enter into a collateral assignment pledge agreement, mortgage, enforcing
document or other security agreement relating to the Lien or Security Interest
in such item of Foreign Collateral pursuant to which such Person or Persons
shall exercise the rights and remedies of the Trustee and Holders in the
Collateral for their respective benefit. The duties and responsibilities of the
Trustee with respect to any Person or Persons and any Collateral are limited to
those set forth in this Article VII.
Both before and after an Event of Default, the Trustee shall have no
duty to supervise or monitor such Collateral Agent or its performance, and no
liability for any acts or omissions of such Collateral Agent; provided that (x)
if a Responsible Officer has actual knowledge of willful misconduct or
negligence of such Collateral Agent, the Trustee may replace such Collateral
Agent with a successor Collateral Agent which it may appoint and (y) (i) the
Trustee shall satisfy itself that any instructions given by the Trustee to such
Collateral Agent have been carried out; (ii) the Trustee shall give to such
Collateral Agent such instructions to make effective the Liens granted by the
Collateral Documents as the Company may request or, if an Event of Default has
occurred, as shall be stated to be necessary in the Opinions of Counsel
furnished pursuant to Section 11.2 of this Indenture with respect to the Foreign
Collateral with respect to which any such Collateral Agent is acting and the
Liens granted therein; (iii) the Trustee shall give notice to such Collateral
Agent of any Event of Default of which a Responsible Officer has actual
knowledge; and (iv) the Trustee may, but has no obligation to, request
information from such Collateral Agent with respect to realization on Foreign
Collateral.
Section 7.13. Appointment of Co-Trustee.
It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture,
and in particular in case of the enforcement thereof on default, or in the case
the Trustee deems that by reason of any present or future law of any
jurisdiction it may not exercise any of the powers, rights or remedies herein
granted to the Trustee or hold title to the properties, in trust, as herein
granted or take any action which may be desirable or necessary in connection
therewith, it may be necessary that the Trustee appoint an individual or
institution as a separate or co-trustee. The following provisions of this
Section 7.13 are adopted to these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction is incapable of
exercising such powers, rights and remedies and every covenant and obligations
necessary to the exercise thereof by such separate or co-trustee shall run to
and be enforceable by either of them.
Should any instrument in writing from the Company be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
reasonable request, be executed, acknowledged and delivered by the Company;
provided, that if an Event of Default shall have occurred and be continuing, if
the Company does not execute any such instrument within fifteen (15) days after
request therefor, the Trustee shall be empowered as an attorney-in-fact for the
Company to execute any such instrument in the Company's name and stead, such
power to be effective for only such continuance of such Event of Default. In
case any separate or co-trustee or a successor to either shall die, become
incapable of acting, resign or be removed, all the estates, properties, rights,
powers, trusts, duties and obligations of such separate or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate or co-trustee.
Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(1) all rights and powers, conferred or imposed upon the Trustee shall
be conferred or imposed upon and may be exercised or performed by such
separate trustee or co-trustee; and
(2) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article.
Any separate trustee or co-trustee may at any time appoint the Trustee as
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successors trustee.
Section 7.14. Trustee Not Liable for Losses or Damages.
Anything in this Indenture to the contrary notwithstanding, in no
event shall the Trustee be liable under or in connection with this Indenture for
indirect, special, incidental, punitive or consequential losses or damages of
any kind whatsoever, including but not limited to lost profits, whether or not
foreseeable, even if the Trustee has been advised of the possibility thereof and
regardless of the form of action in which such damages are sought.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.2 or 8.3 of this Indenture be applied to all outstanding Notes
upon compliance with the conditions set forth below in this Article VIII.
Section 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of this Indenture of the
option applicable to this Section 8.2, the Company and, if any, the Guarantors,
shall, subject to the satisfaction of the conditions set forth in Section 8.4 of
this Indenture, be deemed to have been discharged from their obligations with
respect to all outstanding Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal Defeasance
means that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Notes, which shall thereafter be
deemed to the "outstanding" only for the purposes of Section 8.5 and the other
Sections of this Indenture referred to in clauses (1) through (2) below, and to
have satisfied all its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following provisions
which shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders to receive payments in respect of the
principal of, premium, if any, and interest on the Notes when such payments
are due;
(2) the Company's obligations with respect to the Notes concerning
issuing temporary Notes, registration of Notes, mutilated, destroyed, lost
or stolen Notes and the maintenance of an office or agency for payments;
(3) the rights, powers, trust, duties and immunities of the Trustee
and the Company's obligations in connection therewith; and
(4) the Legal Defeasance provisions of this Article VIII.
Subject to compliance with this Article VIII, the Company may exercise
its option under this Section 8.2, notwithstanding the prior exercise of its
option under Section 8.3 of this Indenture.
Section 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of this Indenture of the
option applicable to this Section 8.3, the Company, the Guarantors and the
Restricted Subsidiaries of the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.4 of this Indenture, be released from its
obligations under the covenants contained in Sections 3.9, 3.10, 3.11, 4.3, 4.5,
4.7 through 4.18 of this Indenture, inclusive, and Section 5.1 with respect to
the outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document, and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1 of this Indenture, but, except
as specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
of the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4, Sections 6.1(3), and 6.1(5) through 6.1(8)
of this Indenture shall not constitute Events of Default.
Section 8.4. Conditions to Legal or Covenant Defeasance.
The following are the conditions precedent to the application of
either Section 8.2 or 8.3 of this Indenture to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders cash in Euros or Government Securities, or a
combination thereof, in such amounts as will be sufficient, in the opinion
of a nationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, and interest on the Notes on the stated
date for payment thereof or on the applicable redemption date, as the case
may be, and, in the event that the Trustee at any time determines the
amount on deposit is insufficient to pay the principal of, premium, if any,
and interest on the Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be, the Company must
irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders additional cash in Euros or Government Securities, or a combination
thereof, in such amounts as will be, together with prior deposit(s),
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest
on the Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(2) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such deposit
and the granting of Liens to secure such borrowing and such deposit) or
insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound (other than a breach, violation or default resulting
from the borrowing of funds to be applied to such borrowing and such
deposit and the granting of Liens to secure such deposit);
(6) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified in this Indenture providing for or relating to the
Legal Defeasance or the Covenant Defeasance have been complied with; and
(8) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that:
(a) either (i) the Company has irrevocably assigned all of its
ownership interest in the trust funds to the Trustee or (ii) the
Trustee has a valid perfected security interest in the trust fund; and
(b) assuming no intervening bankruptcy of the Company between the
date of deposit and the 91st day following the date of deposit and
that no Holder is an insider of the Company, after the 91st day
following the date of deposit, the trust funds will not be subject to
avoidance as a preference under Section 547 of the U.S. Bankruptcy
Code.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (2) above with respect to a Legal Defeasance need not be delivered if all
Notes not theretofore delivered to the Trustee for cancellation (1) have become
due and payable or (2) will become due and payable on the maturity date within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company.
Section 8.5. Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.6 of this Indenture, all money and Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5 only, the
"Trustee") pursuant to Section 8.4 of this Indenture in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal or Redemption Price of, and
Additional Interest, if any, interest on, the Notes, that such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or Government Securities
deposited pursuant to Section 8.4 of this Indenture or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or Government Securities held by it as provided in
Section 8.4 of this Indenture which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.4(a) of this Indenture), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
Section 8.6. Repayment to the Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal, Redemption Price or
Purchase Price of, or Additional Interest, if any, or interest on any Notes and
remaining unclaimed for two (2) years after such amount has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Notes shall
thereafter look only to the Company for payment thereof as a general creditor,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, at the expense of the Company, if required
by applicable law shall cause to be published once, in The New York Times and
The Wall Street Journal (national editions) and, so long as the Series B Notes
are admitted to the Official List of the Luxembourg Stock Exchange and it is
required by the rules of the Luxembourg Stock Exchange, shall cause the
publication of such notice in English in a leading newspaper having general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) or, if
such publication is not practicable, in one other leading English language daily
newspaper with general circulation in Europe, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days after the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any Euros or
Government Securities in accordance with Section 8.2 or 8.3 of this Indenture,
as the case may be, by reason of any order of judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Company under this Indenture, and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.2 or 8.3 of this Indenture until such time as the Trustee or Paying
Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3
of this Indenture, as the case may be; provided, however, that, if the Company
makes any payment with respect to any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. Without Consent of Holders of Notes.
Notwithstanding Section 9.2 of this Indenture, the Company and the
Trustee (and, in the case of the Security Documents to which the Collateral
Agent is a party, the Collateral Agent) may amend or supplement this Indenture,
the Security Documents or the Notes without the consent of any Holder of a Note:
(1) to cure any ambiguity, defect or inconsistency so long as such
changes do not, in the opinion of the Trustee, adversely affect the rights
of any of the Holders in any material respect;
(2) to provide for uncertificated notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Company's obligations to the
Holders of the Notes in the case of a merger or consolidation or sale of
all or substantially all of the Company's assets pursuant to Article V of
this Indenture;
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA; or
(5) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Notes in any material respect.
Upon the request of the Company, accompanied by a resolution of the
Board of Directors (evidenced by an Officers' Certificate) authorizing the
execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.2(2) of this Indenture, the
Trustee shall join with the Company in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
Section 9.2. With Consent of Holders of Notes.
Except as provided below in this Section 9.2, the Company and the
Trustee (and, in the case of the Security Documents to which the Collateral
Agent is a party, the Collateral Agent) may amend or supplement this Indenture,
the Security Documents (including any amendments that provide for the release of
all or a portion of the Collateral as set forth in, and subject to, the
conditions herein and in the Security Documents) and the Notes with the consent
of the Holders of at least a majority in principal amount of the Notes then
outstanding (including, without limitation, consents obtained in connection with
a tender offer or exchange offer for the Notes), and, subject to Sections 6.2,
6.4 and 6.7 of this Indenture, any existing Default or Event of Default or
compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender offer
or exchange offer for the Notes).
Without the consent of each Holder affected, an amendment or waiver
may not (with respect to any Notes held by a non-consenting Holder):
(1) reduce the amount of Notes whose Holders must consent to an
amendment;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any Notes;
(3) reduce the principal of or change or have the effect of changing
the fixed maturity of any Notes, or change the date on which any Notes may
be subject to redemption or reduce the redemption price therefor;
(4) make any Notes payable in money other than that stated in the
Notes;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Holder's Note on or after the due date thereof or to bring suit to
enforce such payment, or permitting Holders of a majority in principal
amount of Notes to waive Defaults or Events of Default;
(6) after the Company's obligation to purchase Notes arises hereunder,
amend, change or modify in any material respect the obligation of the
Company to make and consummate a Change of Control Offer in the event of a
Change of Control or make and consummate a Net Proceeds Offer with respect
to any Asset Sale that has been consummated or, after such Change of
Control has occurred or such Asset Sale has been consummated, modify any of
the provisions or definitions with respect thereto; or
(7) modify or change any provision of this Indenture or the related
definitions affecting the ranking of the Indebtedness evidenced by the
Notes.
Upon the written request of the Company accompanied by a resolution of
the Board (evidenced by an Officers' Certificate) authorizing the execution of
any such amended or supplemental indenture, and upon the filing with the Trustee
of evidence satisfactory to the Trustee of the consent of the Holders of Notes
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.2(2) of this Indenture, the Trustee shall join with the Company in the
execution of such amended or supplemental indenture unless such amended or
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary to obtain the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver.
Section 9.3. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.4. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and therefore binds every Holder.
Section 9.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company, in
exchange for all Notes, may issue, and the Trustee shall authenticate, new Notes
that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.6. Trustee to Sign Amendment, Etc.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article IX if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves such amendment or supplemental indenture. In executing any
amended or supplemental indenture, the Trustee shall be entitled to receive, in
addition to the documents required by Sections 13.4 and 13.5 of this Indenture,
and, subject to Section 7.1, shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that (i) the execution
of such amended or supplemental indenture is authorized or permitted by this
Indenture, (ii) no Event of Default shall occur as a result of the execution of
such Officers' Certificate or the delivery of such Opinion of Counsel and (iii)
the amended or supplemental indenture complies with the terms of this Indenture.
ARTICLE X.
SATISFACTION AND DISCHARGE
Section 10.1. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect (except as set forth below) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:
(1) either:
(a) all the Notes theretofore authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid as
provided in Section 2.7 and Notes for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust) have been
delivered to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee funds in an amount
sufficient to pay and discharge the entire Indebtedness on the Notes not
theretofore delivered to the Trustee for cancellation, for principal of,
premium, if any, and interest on the Notes to the date of deposit together
with irrevocable instructions from the Company directing the Trustee to
apply such funds to the payment thereof at maturity or redemption, as the
case may be;
(2) the Company has paid all other sums payable under this Indenture by the
Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel stating that all conditions precedent under this Indenture
relating to the satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
Company's obligations in Sections 2.3, 2.4, 2.6, 2.7, 2.11, 7.7, 7.8, 13.2, 13.3
and 13.4, and the Trustee's and Paying Agent's obligations in Section 10.2 shall
survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.7 shall survive.
Section 10.2. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 10.1 shall be held
in trust and, at the written direction of the Company, be invested by or on
behalf of the Trustee prior to maturity in Government Securities, any money
market funds that invests solely in Government Securities or time deposits
issued by a commercial bank or banks having at least $100,000,000 in undivided
capital and surplus, and applied by the Trustee in accordance with the
provisions of the Notes and this Indenture, to the payment, either directly or
through any Paying Agent as the Trustee may determine, to the Persons entitled
thereto, of the principal (and premium, if any) and interest for the payment of
which money has been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE XI.
COLLATERAL AND SECURITY
Section 11.1. Security Documents.
(1) In order to secure the due and punctual payment of all amounts due
under this Indenture and the Notes, the Company has entered into the respective
Security Documents to which they are party to create the Security Interests and
for related matters.
(2) Each holder of a Note, by accepting a Note, agrees to all of the
terms and provisions of the Security Documents, as the same may be amended from
time to time pursuant to the provisions of the Security Documents and this
Indenture; including but not limited to any powers of attorney provided for
therein.
(3) Pursuant to the terms of this Indenture, the Collateral as now or
hereafter constituted shall be held by the Trustee or the Collateral Agent for
the equal and ratable benefit of the Holders, including Holders of Additional
Notes, if any, without preference, priority or distinction of any thereof over
any other by reason of difference in time of issuance, sale or otherwise, as
security for the Notes, including Additional Notes, if any, and any proceeds
realized from the Collateral shall be distributed to the Holders, the Trustee,
the Collateral Agent, each other agent employed to act hereunder, or the
Company, pursuant to the terms of this Indenture.
(4) The Company shall deliver to the Trustee copies of all documents
delivered to the Collateral Agent pursuant to the Security Documents, and shall
do or cause to be done all such acts and things as may be necessary or proper,
or as may be required by the provisions of the Security Documents, to assure and
confirm to the Trustee and any Collateral Agent the Security Interest in the
Collateral contemplated hereby or any part thereof, by the Security Documents or
any part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture and of the Notes or
Parallel Obligations, as applicable secured thereby, according to the intent and
purposes herein and therein expressed.
Section 11.2. Recording, etc.
(1) The Company and the Guarantors, if any, will cause, at their own
expense, the Security Documents, this Indenture, the Collateral Agency
Agreement, as applicable, and all amendments or supplements thereto or notices
or acknowledgments thereof to be registered, recorded and filed or re-recorded,
refiled, renewed or acknowledged in such manner and in such place or places, if
any, as may be required by law in order fully to preserve and protect the Liens
created by the Security Documents on all parts of the Collateral and to
effectuate and preserve the Security Interest of the Holders, the Trustee or the
Collateral Agent, as applicable.
(2) The Company shall furnish or cause to be furnished to the Trustee:
(a) at the time of execution and delivery of this Indenture,
Opinion(s) of Counsel substantially in the form of the Opinion of Counsel
delivered on the Issue Date to the Initial Purchaser of the Notes (or the
Trustee shall be permitted to rely on such Opinion(s) of Counsel); and
(b) the Company shall furnish to the Trustee, promptly but in no event
later than 30 days after the execution and delivery of this Indenture,
Opinion(s) of Counsel required by TIA ss. 314(b)(1) and thereafter
Opinion(s) of Counsel required by TIA ss. 314(b)(2).
(3) The Company and the Guarantors, if any, agree to record and file,
at its or their own expense, financing statements (and continuation statements
when applicable) with respect to the Collateral now existing or hereafter
created meeting the requirements of applicable law in such manner and in such
jurisdictions as are necessary to perfect, and maintain the perfection of, the
Lien, and deliver a file stamped copy of each such financing statement or other
evidence of filing to the Trustee and, if applicable, the Collateral Agent,
promptly. Neither the Trustee nor the Collateral Agent shall be under any
obligation whatsoever to file such financing or contamination statements or to
make any other filing under the UCC in connection therewith.
Section 11.3. Release of Collateral.
(1) The Company will have the right to obtain a release of items of
Collateral from the Lien of the Security Documents (the "Released Collateral")
subject to a sale or disposition in accordance with this Indenture (including,
without limitation, in Section 4.11) and the Trustee or the Collateral Agent, as
applicable, will release (or instruct the Collateral Agent to release) the
Released Collateral from the Lien of the relevant Security Documents (and
notwithstanding any provision of the applicable Security Documents to the
contrary) and reconvey the Released Collateral to the Company promptly prior to
such sale or disposition upon compliance with the condition that the Company
deliver to the Trustee the following and any other documents necessary to effect
the release of the Collateral:
(a) Release Notice. A notice (each, a "Release Notice") from the
Company (i) describing the proposed Released Collateral, (ii) certifying
that if such transfer would constitute an Asset Sale, such Asset Sale
complies with the terms and conditions of this Indenture with respect
thereto and (iii) accompanied by a counterpart of the instruments proposed
to give effect to the release fully executed and acknowledged (if
applicable) by all parties thereto other than the Trustee or the Collateral
Agent, as applicable, with a copy to the Collateral Agent, if the
Collateral Agent is a party to the relevant Security Document;
(b) Officers' Certificate. An Officers' Certificate of the Company
stating that (i) all Net Cash Proceeds, if any, from the sale of any of the
Released Collateral will be applied pursuant to the provisions of this
Indenture in respect of Asset Sales, (ii) there is no Default or Event of
Default in effect and continuing on the date thereof, (iii) the release of
the Collateral and the sale or disposition will not result in a Default or
Event of Default under Section 6.1, with a copy to the Collateral Agent, if
the Collateral Agent is a party to the relevant Security Document;
(c) Opinions of Counsel. An Opinion of Counsel stating that the
documents that have been or are therewith delivered to the Trustee and the
Collateral Agent, if applicable, in connection with such release conform to
the requirements of this Indenture and that all conditions precedent herein
provided for such release have been complied with; and
(d) Other Documents. All documentation required by the TIA, if any,
prior to the release of Collateral by the Trustee or the Collateral Agent,
as applicable, and, in the event there is to be a substitution of property
for the Collateral subject to the transfer, all documentation necessary to
subject such new Collateral to the Lien of the Security Documents.
(2) Notwithstanding the foregoing provisions of this Section 11.3, the
Company may obtain a release of (a) Collateral pursuant to Section 9.2 and (b)
any Net Cash Proceeds for the purposes set forth in Section 4.10(c) or as may be
required to purchase Notes pursuant to Section 4.10 of this Indenture by
directing the Trustee in writing to cause to be applied such Net Cash Proceeds
to such purchase in accordance with Section 4.10 of this Indenture, as
applicable, and this Article XI.
(3) The Company shall also have the right to obtain releases of
Collateral pursuant to, and subject to, Section 9.2.
Section 11.4. Satisfaction and Discharge; Defeasance.
The Company shall be entitled to obtain a full release of all of the
Collateral from the Lien of this Indenture and the Security Documents upon
compliance with all of the conditions precedent for satisfaction and discharge
of this Indenture pursuant to Article X, for a defeasance pursuant to Article
VIII or in accordance with, and subject to, Section 9.2. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an Opinion of Counsel,
each to the effect that all of the conditions precedent have been complied with
(which may be the same Officers' Certificate and Opinion of Counsel required by
Article VIII), together with such documentation, if any, as may be required by
this Indenture or the TIA (including without limitation, TIA Section 3.14(d))
prior to the release of such Collateral, the Trustee shall take all necessary
action, at the request and expense of the Company, to release and reconvey, or
to ensure that the Collateral Agent shall release and reconvey, to the Company
all of the Collateral, and shall deliver, or shall instruct delivery by the
Collateral Agent of, such Collateral in its, or their, possession to the Company
including, without limitation, the execution and delivery of releases or waivers
whenever necessary.
Section 11.5. Additional Collateral.
The Company shall grant to the Trustee or any Collateral Agent a
Security Interest in additional Collateral pursuant to Section 4.17 of this
Indenture or the Security Documents and shall deliver to the Trustee or a
Collateral Agent, as applicable, the following documents:
(1) an instrument or instruments in recordable form or otherwise
proper form for the applicable jurisdiction sufficient for the valid creation
and perfection, if applicable, of a senior Lien of the Security Documents to
cover and create a Security Interest in the additional Collateral; and
(2) Opinion(s) of Counsel in each jurisdiction in which such
Collateral is located substantially in the form of the local counsel opinions
delivered on the date hereof and otherwise in form and substance satisfactory to
the Trustee with respect to the documents executed and delivered by the Company
and the Collateral encumbered thereby.
Any such additional Collateral shall be pledged to the Trustee or a
Collateral Agent, directly or indirectly, on behalf of all Holders pursuant to
the terms of this Indenture, regardless of the enforceability of such pledge in
respect to any specific series of Notes issued under this Indenture or any
amendments or supplements hereto.
Section 11.6. Trust Indenture Act Requirements.
The release of any Collateral pursuant to Article X or XI, from the
Lien of any of the Security Documents or the release of, in whole or in part,
the Liens created by any of the Security Documents, will not be deemed to impair
the Security Interests in contravention of the provisions hereof if and to the
extent the Collateral or Liens are released pursuant to the applicable Security
Documents and pursuant to the terms hereof. The Trustee and each of the Holders
of the Notes acknowledge that a release of Collateral or Liens strictly in
accordance with the terms of the Security Documents and the terms hereof will
not be deemed for any purpose to be an impairment of the Security Interests in
contravention of the terms of this Indenture. To the extent applicable, without
limitation, the Company and the Guarantors, if any, on the Notes shall cause TIA
Section 314(d) relating to the release of property or securities from the Liens
hereof and of the Security Documents to be complied with. Any certificate or
opinion required by TIA Section 314(d) may be made by an Officer of the Company,
except in cases in which TIA Section 314(d) requires that such certificate or
opinion be made by an independent Person.
Section 11.7. Authorization of Actions to be Taken by the Trustee or the
Collateral Agent Under the Security Documents.
Subject to the provisions of the Security Documents:
(a) The Trustee or a Collateral Agent, as applicable may, in its sole
discretion and without the consent of the Holders, take all actions it
deems necessary or appropriate in order to (i) enforce any of the terms of
the Security Documents and (ii) collect and receive any and all amounts
payable in respect of the Obligations of the Company and the Guarantors, if
any, hereunder and under the Security Documents; and
(b) Each of the Trustee and the Collateral Agent shall have power to
institute and to maintain such suits and proceedings as they may deem
expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of any of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee or the Collateral
Agent, as applicable, may deem expedient to preserve or protect its
interests and the interests of the Holders of the Notes, the Trustee or the
Collateral Agent, as applicable, in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of
or compliance with any legislative or other governmental enactment, rule or
order that may be unconstitutional or otherwise invalid if the enforcement
of, or compliance with, such enactment, rule or order would impair the
Security Interests or be prejudicial to the interests of the Holders of the
Notes, the Trustee or the Collateral Agent, as applicable).
Section 11.8. Release Upon Termination of the Company's Obligations.
In the event that the Company delivers an Officers' Certificate and
Opinion of Counsel certifying that its obligations under this Indenture have
been satisfied and discharged by complying with the provisions of Article X,
together with any documentation, if any, as may be required by this Indenture or
the TIA (including, without limitation, TIA Section 314(d)) prior to the release
of the Collateral, the Trustee or the Collateral Agent, as applicable, shall (i)
execute and deliver such releases, termination statements and other instruments
(in recordable form, where appropriate) as the Company, may reasonably request
evidencing the termination of the Security Interests created by the Security
Documents and (ii) not be deemed to hold the Security Interests for its benefit
and the benefit of the Holders of the Notes.
Section 11.9. Intercreditor Agreement.
Prior to, and as a condition to, the creation or imposition of any
consensual Lien (other than that in favor of the Holders, the Trustee or the
Collateral Agent) on the Collateral, the Company, the Trustee and the proposed
holder of such Lien will enter into an intercreditor agreement, in form and
substance reasonably satisfactory to the Trustee and the Company, and the
Trustee is hereby authorized to enter into such intercreditor agreements.
Section 11.10. Limitation on Duty of Trustee and Collateral Agent of Collateral;
Indemnification.
(a) Beyond the exercise of reasonable care in the custody thereof,
neither the Trustee nor the Collateral Agent shall have any duty as to any
Collateral in its possession or control or in the possession or control of any
agent or bailee or any income thereon or as to preservation of rights against
prior parties or any other rights pertaining thereto and neither the Trustee nor
the Collateral Agent shall be responsible for filing any financing or
continuation statements or recording any documents or instruments in any public
office at any time or times or otherwise perfecting or maintaining the
perfection of any security interest in the Collateral. The Trustee and
Collateral Agent shall be deemed to have exercised reasonable care in the
custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and
shall not be liable or responsible for any loss or diminution in the value of
any of the Collateral, by reason of the act or omission of any carrier,
forwarding agency or other agent or bailee selected by the Trustee or the
Collateral Agent in good faith.
(b) Neither the Trustee nor the Collateral Agent shall be responsible
for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the
Collateral, whether impaired by operation of law or by reason of any of any
action or omission to act on its part hereunder, except to the extent such
action or omission constitutes negligence, bad faith or willful misconduct on
the part of the Trustee or the Collateral Agent, as applicable, for the validity
or sufficiency of the Collateral or any agreement or assignment contained
therein, for the validity of the title of the Company to the Collateral, for
insuring the Collateral or for the payment of taxes, charges, assessments or
Liens upon the Collateral or otherwise as to the maintenance of the Collateral.
(c) The Company shall indemnify the Collateral Agent as set forth in
the Collateral Agency Agreement.
ARTICLE XII.
APPLICATION OF TRUST MONIES
Section 12.1. Collateral Account
On the date of this Indenture there shall be established and, at all
times hereafter until this Indenture shall have terminated, there shall be
maintained with the Trustee a collateral account (the "Collateral Account"). The
Collateral Account shall be established and maintained by the Trustee at its
Corporate Trust Office. All Trust Monies which are received by the Trustee or
the Collateral Agent shall be deposited in the Collateral Account and thereafter
shall be held by and under the sole dominion and control of the Trustee for its
benefit and for the benefit of the Holders as a part of the Collateral and, upon
any sale or other disposition of the Collateral or any part thereof pursuant to
any of the Security Documents, said Trust Monies shall be applied in accordance
with Section 6.10; but prior to any such sale or other disposition, all or any
part of the Trust Monies may be withdrawn, and shall be released, paid or
applied by the Trustee in accordance with the terms of this Indenture.
Section 12.2. Investment of Trust Monies
So long as no Event of Default shall have occurred and is continuing,
all or any part of any Trust Monies held by the Trustee shall from time to time
be invested or reinvested by the Trustee in any Cash Equivalents upon the
Company's written request, which shall specify the Cash Equivalents in which
such Trust Monies shall be invested and shall certify that such investments
constitute Cash Equivalents and the Trustee shall sell any such Cash Equivalent
only upon receipt of a written request from the Company specifying the
particular Cash Equivalent to be sold. So long as no Event of Default occurs and
is continuing, any interest or dividends accrued, earned or paid on such Cash
Equivalents (in excess of any accrued interest or dividends paid at the time of
purchase) that may be received by the Trustee shall be forthwith paid to the
Company. Such Cash Equivalents shall be held by the Trustee as a part of the
Collateral, subject to the same provisions hereof as the cash used by it to
purchase such Cash Equivalents.
The Trustee shall not be liable or responsible for any loss resulting
from such investments or sales except only for its own negligent action, its own
negligent failure to act or its own willful misconduct in complying with this
Section 12.2.
ARTICLE XIII.
MISCELLANEOUS
Section 13.1. Trust Indenture Act Controls.
If any provision hereof limits, qualifies or conflicts with a
provision of the TIA or another provision that would be required or deemed under
such Act to be part of and govern this Indenture if this Indenture were subject
thereto, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the TIA 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 13.2. Notices.
Any notice or communication by the Company or the Trustee to others is
duly given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Kronos International, Inc.
5430 LBJ Freeway, Suite 1700
Dallas, TX 75240
Attention: Robert D. Graham
Fax: (972) 448-1445
With a copy to:
Locke Liddell & Sapp LLP
2200 Ross Avenue
Suite 2200
Dallas, Texas 75201
Attention: Don M. Glendenning, Esq.
Fax: (214) 756-8623
If to the Trustee:
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Global Finance Unit
Fax: (212) 235-2530
The Company or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the address
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
So long as the Series B Notes are admitted to the Official List of the
Luxembourg Stock Exchange and it is required by the rules of the Luxembourg
Stock Exchange, publication of such notice to the Holders of the Series B Notes
shall be made in English in a leading newspaper having general circulation in
Luxembourg (which is expected to be the Luxemburger Wort) or, if such
publication is not practicable, in one other leading English language daily
newspaper with general circulation in Europe, such newspaper being published on
each business day in morning editions, whether or not it shall be published on
Saturday, Sunday or holiday editions.
Section 13.3. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA ss.
312(c).
Section 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company and/or any Guarantor to
the Trustee to take any action under this Indenture, the Company and/or any
Guarantor shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.5 of this Indenture) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been satisfied; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 13.5 of this Indenture) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.
Section 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 13.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 13.7. No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator,
agent or stockholder or Affiliate of the Company, as such, shall have any
liability for any obligations of the Company under the Notes, this Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. No past, present or future director, officer, employee,
incorporator, agent or stockholder or Affiliate of any of the Guarantors, as
such, shall have any liability for any obligations of the Guarantors under the
Guarantees, this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder of Notes and
Guarantees by accepting a Note and a Guarantee waives and releases all such
liabilities. The waiver and release are part of the consideration for issuance
of the Notes and the Guarantees. Such waiver may not be effective to waive
liabilities under the federal securities law and it is the view of the
Commission that such a waiver is against public policy.
Section 13.8. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
THIS INDENTURE, THE GUARANTEES AND THE NOTES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE GUARANTEES AND THE NOTES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE NOTES
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN ANY
OTHER JURISDICTION.
Section 13.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10. Judgment Currency.
The Company and the Guarantors, if any, jointly and severally, agree
to indemnify the Holders and each person, if any, who controls any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act against any loss incurred, as incurred, as a result of any judgment or award
against the Company or such Guarantor in connection with this Indenture being
expressed in a currency (the "Judgment Currency") other than Euros and as a
result of any variation as between (i) the spot rate of exchange in London at
which the Judgment Currency could have been converted into Euro as of the date
such judgment or award is paid and (ii) the spot rate of exchange at which the
indemnified party converts such Judgment Currency; provided, however, that the
liability of the Company and the Guarantors, if any, to the indemnified party
under this Section 13.10 shall be limited to that which would have arisen if the
indemnified party had acted promptly to convert such judgment or award from the
Judgment Currency into Euros. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and the Guarantors, if any,
and shall continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of, or conversion
into, the relevant currency.
Section 13.11. Successors.
All agreements of the Company in this Indenture and the Notes shall
bind their successors. All agreements of the Trustee in this Indenture shall
bind its successors.
Section 13.12. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.13. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture, which have been inserted for
convenience of reference only, are not to be considered a part of this Indenture
and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.15. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all reasonable out-of-pocket costs and expenses (including attorneys' fees for
the Company, the Trustee and the Holders of the Notes) incurred in connection
therewith, including, but not limited to, costs and expenses of qualification of
this Indenture and the Notes and printing this Indenture and the Notes. The
Trustee shall be entitled to receive from the Company any such Officers'
Certificates, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
[Signatures on following pages]
SIGNATURES
KRONOS INTERNATIONAL, INC.
By: /s/ Robert D. Graham
--------------------------------------------
Name: Robert D. Graham
Title: Vice President, General Counsel
and Assistant Secretary
By: /s/ John St. Wrba
-----------------------------------
Name: John St. Wrba
Title: Vice President and Assistant Treasurer
THE BANK OF NEW YORK,
as Trustee
By: /s/ Luis Perez
--------------------------------------------
Name:Luis Perez
Title: Assistant Vice President
* This Cross-Reference Table shall not, for any purpose, be deemed a part of
the Indenture.