THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933), AS AMENDED (THE
"SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY IN ANY JURISDICTION, 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 IN THE FOLLOWING SENTENCE. 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) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501 (a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"INSTITUTIONAL ACCREDITED INVESTOR"); (2) AGREES THAT
IT WILL NOT, WITHIN TWO YEARS AFTER THE LATER OF (x)
THE ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST
DATE ON WHICH LONE STAR INDUSTRIES, INC. (THE "ISSUER")
OR ANY AFFILIATE THEREOF WAS THE BENEFICIAL OWNER OF
THIS NOTE (OR ANY PREDECESSOR HEREOF), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (i) IF A QUALIFIED
INSTITUTIONAL BUYER, PURSUANT TO AN APPLICABLE
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION OR (ii) IF AN
INSTITUTIONAL ACCREDITED INVESTOR (A) TO THE ISSUER OR
ANY AFFILIATE THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS NOTE BY AN INSTITUTIONAL ACCREDITED
INVESTOR WITHIN TWO YEARS AFTER THE LATER OF (x) THE
ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE SUCH INSTITUTIONAL
ACCREDITED INVESTOR MUST CHECK THE APPROPRIATE BOX
SET FORTH BELOW RELATING TO THE MANNER OF SUCH
TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRANSFER
AGENT. SUCH INSTITUTIONAL ACCREDITED INVESTOR MUST,
PRIOR TO SUCH TRANSFER, FURNISH TO THE ISSUER AND THE
TRANSFER AGENT SUCH CERTIFICATIONS, LEGAL OPINIONS OR
OTHER INFORMATION, IF ANY, AS THEY 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. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF TWO YEARS FROM THE LATER OF (x) THE
ORIGINAL ISSUANCE OF THIS NOTE AND (y) THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE THEREOF WAS THE
BENEFICIAL OWNER OF THIS NOTE (OR ANY PREDECESSOR
HEREOF). AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT. NO REPRESENTATION CAN BE MADE
AS TO THE AVAILABILITY OF THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT FOR RESALES OF THIS NOTE.
THIS IS A GLOBAL NOTE REFERRED TO IN SECTION 2 OF THE
WITHIN MENTIONED FISCAL AGENCY AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR ON SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
LONE STAR INDUSTRIES, INC.
91/4% Notes due 2010
Guaranteed by
DYCKERHOFF AG
CUSIP: 542290AF8
Number: 0-1
LONE STAR INDUSTRIES, INC., a corporation organized under the laws
of the State of Delaware ("Lone Star" or the "Issuer"), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the
aggregate unpaid principal amount shown on the schedule affixed hereto
and made a part hereof (or on a continuation thereof) which shall be affixed
hereto and made a part thereto as endorsed by the Registrar (as defined on
the reverse hereto pursuant to the Fiscal Agency Agreement (as so defined),
which amount is on the date hereof ONE HUNDRED SIXTY-EIGHT
MILLION DOLLARS ($168,000,000.00), on June 1, 2010 (the "Stated
Maturity"), in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts. In addition, the Issuer promises to pay interest, semi-annually
on June 1, and December 1 of each year (each, an "Interest Payment
Date"), commencing December 1, 2000 on said principal sum, in like coin
or currency, at the rate per annum specified in the title of this Note
(calculated on the basis of a 360-day year of twelve 30-day months), from
and including the date of original issuance of this Note (the "Original Issue
Date") or from and including the most recent Interest Payment Date to
which interest on this Note (or any predecessor Note) has been paid or duly
provided for, until payment of said principal sum has been made or duly
provided for.
The interest payable hereon on any Interest Payment Date will be interest
accrued from and including such dates as stated in the immediately
preceding sentence, to but excluding such Interest Payment Date, provided,
however, that the interest payable hereon on the Stated Maturity will be
interest accrued from and including, such dates to but including such Stated
Maturity. Subject to certain exceptions referred to on the reverse hereof,
interest so payable on any Interest Payment Date will be paid to the person
in whose name this Note is registered at the close of business on November
15 or May 15, as the case may be, next preceding such Interest Payment
Date (each, a "Record Date").
Dyckerhoff AG (the "Guarantor") will fully, unconditionally and
irrevocably guarantee payments of principal of, interest on, and any
Additional Amounts with respect to, the Notes if the Issuer fails to make
any such payment in a timely manner.
The statements set forth in the legend, if any, set forth above are an integral
part of the terms of this Note and by acceptance hereof each Holder of this
Note agrees to be subject to and bound by the terms and provisions set forth
in such legend, if any.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, Lone Star has caused this instrument to be
signed manually or by facsimile by its duly Authorized Officer.
LONE STAR INDUSTRIES, INC.
By: /s/ Michael B. Clarke
Name: Michael B. Clarke
Title: Chief Executive Officer
Date: June 5, 2000
[FORM OF CERTIFICATE OF AUTHENTICATION]
This is one of the Global Notes referred to in the within-mentioned
Fiscal Agency Agreement.
By or on behalf of:
BANKERS TRUST COMPANY
as Registrar
By: /s/ Susan Johnson
Authorized Officer
Date: June 5, 2000
1. General. (a) This Note is one of a duly authorized issue of debt
securities of the Issuer, designated as its 91/4% Notes due June 1, 2010 (the
"Notes"), limited to the aggregate principal amount of U.S. $350,000,000
(subject to the terms of Section 2 of the Fiscal and Paying Agency Agreement,
defined herein) and issued or to be issued pursuant to a fiscal and paying
agency agreement (the "Fiscal Agency Agreement") dated as of June 5, 2000
among the Issuer, the Guarantor and Bankers Trust Company, as fiscal agent,
principal paying agent and as depository for the Guarantee (the "Fiscal and
Principal Paying Agent") and pursuant to which Deutsche Bank Luxembourg
S.A. is acting as paying agent (collectively with the Fiscal and Principal
Paying Agent, the "Paying Agents", which term shall include successors and
assigns as such Paying Agents). The Paying Agents are also each acting as
transfer agent (the "Transfer Agents") and Bankers Trust Company is acting as
registrar ("Registrar") under the Fiscal Agency Agreement. The Holders of the
Notes will be entitled to the benefits of, be bound by, and be deemed to have
notice of, all of the provisions of the Fiscal Agency Agreement. A copy of the
Fiscal Agency Agreement is on file and may be inspected at the corporate trust
office of the Fiscal and Principal Paying Agent and the Registrar. The
Guarantor will fully, unconditionally and irrevocably guarantee payments of
principal of, interest on, and any Additional Amounts with respect to, the
Notes if the Issuer fails to make any such payment in a timely manner.
(b) The issue of the Notes was authorized pursuant to a resolution
of the Board of Directors of the Issuer dated May 5, 2000. The
Guarantee was issued pursuant to resolutions of the Board of
Directors of the Issuer, dated May 5, 2000, a resolution of the
Board of Managers of the Guarantor, dated August 30, 1999
and a resolution of the Supervisory Board of the Guarantor
dated September 2, 1999.
(c) The Notes are unsecured general obligations of the Issuer and
rank pari passu with all other unsecured general obligations of
the Issuer. The obligations of the Guarantor pursuant to the
Guarantee are unsecured and senior obligations of the
Guarantor and will rank pari passu without any preference
among themselves and at least pari passu with all other present
and future unsecured and senior obligations of the Guarantor,
save for such obligations as may be preferred by mandatory
provisions of law.
(d) The Notes are issuable in definitive, fully registered form,
without coupons, in minimum denominations of U.S.$250,000
principal amount and multiples of $1,000 in excess thereof. The
Notes may be exchanged, and transfers thereof shall be
registered, as provided in paragraph 6 hereof and in the Fiscal
Agency Agreement. The person in whose name a Note shall be
registered may (to the fullest extent permitted by applicable
laws) be treated at all times, by all persons and for all purposes,
as the absolute owner of such Note regardless of any notice of
ownership, theft or loss or of any writing thereon.
2. Payment and Paying Agencies. (a) In order to provide for the
payment of principal of and interest on the Notes as and when the same shall
become due and payable, the Issuer (or, failing the Issuer, the Guarantor under
the terms of the Guarantee) shall pay to the Fiscal and Principal Paying Agent
on or before each Interest Payment Date or the Stated Maturity or any date
fixed for redemption of the Notes in such coin or currency of the United States
as at the time shall be legal tender for the payment of public and private
debts, an amount in immediately available funds which (together with any
funds then held by any Paying Agent or the Registrar and available for this
purpose) shall be sufficient to pay the interest or principal or both, as
the case may be, becoming due on such date; provided, however, that if such date
is not a Business Day, the Issuer (or, failing the Issuer, the Guarantor under
the terms of the Guarantee) shall make such payment on the next succeeding
Business Day. A "Business Day" is any day which is not at Saturday, Sunday, or
a day on which banking institutions are authorized or obligated to close in
New York City. All sums payable to the Fiscal and Principal Paying Agent
hereunder shall be paid to such account and with such bank as the Fiscal and
Principal Paying Agent may from time to time notify to the Issuer reasonably in
advance of the time such sum is due and payable.
(b) (i) Payment of interest and principal with respect to interests in
global Notes will be credited to the account of the Holders of such interests
with The Depository Trust Company ("DTC"), Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System
("Euroclear"), and Clearstream Banking, societe anonyme (formerly
Cedelbank) ("Clearstream").
(ii) Principal of certificated Notes will be payable against surrender
of such Notes at the office of the Registrar or any Paying Agent or, subject to
applicable laws and regulations, in such other place or places as are
designated by the Issuer, by dollar check drawn on, or by transfer to a
dollar account maintained by the Holder with, a bank located in New York
City. Payment of interest on certificated Notes, if any, will be made (x)
by a dollar check drawn on a bank in New York City mailed to the Holder at
such Holder's registered address or (y) upon application by a Holder of at
least $1,000,000 aggregate principal amount of Notes to the Registrar or any
Paying Agent not later than the relevant Record Date, by wire transfer in
immediately available funds to a dollar account maintained by the Holder
with a bank in New York City.
(c) Payment of interest on the Notes will be made to the person in
whose name such Note is registered at the close of business on the Record
Date next preceding the relevant Interest Payment Date notwithstanding the
cancellation of such Note upon any transfer or exchange thereof subsequent to
the Record Date and prior to such Interest Payment Date; provided that: (i)
interest payable at the Stated Maturity will be payable to the person to whom
principal shall be payable; and (ii) if and to the extent the Issuer shall
default in the payment of interest due on such interest payment date, such
defaulted interest shall be paid to the persons in whose names the Notes are
registered at the close of business on a subsequent record date established
by notice given by mail by or on behalf of the Issuer to the holders of Notes
not less than 15 days preceding such subsequent record date, such record
date to be not less than 10 days preceding the date of payment of such
defaulted interest.
(d) The Issuer has initially appointed the Paying Agents, the
Transfer Agents and the Registrar for the Notes as stated above. The Issuer
may at any time appoint additional or other paying agents, transfer agents and
registrars and terminate the appointment thereof, provided that while the Notes
are outstanding the Issuer will maintain in New York City an office or agency
(which may be the offices of the Fiscal and Principal Paying Agent) for the
payment of principal of and interest on this Note as herein provided. Notice of
any such termination or appointment and of any change in the office through
which any paying agent, transfer agent or registrar will act will be promptly
given once in the manner described in paragraph 10 herein.
(e) All monies paid by the Issuer (or, failing the Issuer, the
Guarantor under the terms of the Guarantee) to the Fiscal and Principal Paying
Agent for payment of the principal of or interest on any Note and remaining
unclaimed for two years after such payment has been made shall be repaid to
the Issuer or the Guarantor, as applicable, and, to the extent permitted by
law, the holder of such Note thereafter may look only to the Issuer or the
Guarantor, as applicable, for payment thereof.
(f) Should the Issuer (or, failing the Issuer, the Guarantor under the
terms of the Guarantee) at any time default in the payment of any principal of
this Note, the Issuer (or, failing the Issuer, the Guarantor under the terms of
the Guarantee) will pay interest on the amount in default at the rate of
interest borne by the Notes.
3. Withholding Taxes; Redemption. (a) All payments of, or in
respect of, principal and interest made by the Issuer hereunder in respect of
this Note will be made without withholding or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the United States or by or
within any political subdivision thereof or any authority therein having power
to tax, unless such taxes, duties, assessments or governmental charges are
required by law to be withheld or deducted.
(b) (i) If any deduction or withholding for any present or future
taxes, assessments or other governmental charges of the United States (or any
political subdivision or taxation authority thereof or therein) shall at any
time be required by the United States (or any such political subdivision or
taxing authority) in respect of any amounts to be paid by the Issuer on this
Note, the Issuer will pay to the holder of this Note such additional amounts
(the "U.S. Additional Amounts") as may be necessary in order that the net
amounts paid to such Holder of this Note who is not resident in the United
States for U.S. tax purposes, after such deduction or withholding, shall be
not less than the amounts specified in this Note to which such Holder is
entitled; provided, however, that the Issuer shall not be required to make
any payment of U.S. Additional Amounts to a Holder for or on account of:
(1) any tax, assessment or other governmental charge which would
not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over,
such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the United States or any political subdivision or
territory or possession thereof or area subject to its jurisdiction,
including, without limitation, such Holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been a
citizen, domiciliary, national or resident thereof or being or having been
present or engaged in a trade or business therein or having, or having
had, a permanent establishment therein or otherwise having, or having
had, some connection with the United States or such political
subdivision, territory or possession other than the holding or ownership
of a Note or the collection of principal of and interest, if any, on, or the
enforcement of, a Note or (ii) the presentation by the Holder of a Note
(where presentation is required) for payment on a date more than 30
days after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever
occurs later, except to the extent that the Holder would have been
entitled to such U.S. Additional Amounts if it had presented such Note
for payment on any day within such period of 30 days; or
(2) any tax, fee or duty which the Holder is subject to for any
reason other than the mere fact of being a recipient of principal or
interest in respect of the Notes, in particular if the Holder is subject to
such taxes, fees or duties based on a personal unlimited or limited tax
liability; or
(3) any estate, inheritance, gift, sale, transfer, personal property tax
or any similar tax, assessment or other governmental charge; or
(4) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments of (or in respect
of) principal of, or any interest on, the Notes; or
(5) any tax, assessment or other governmental charge imposed by
reason of such Holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other tax-
exempt organization; or
(6) any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the Holder or beneficial owner of such Note, if
such compliance is required by statute or by regulation of the United
States or of any political subdivision or taxing authority thereof or
therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge; or
(7) any combination of items (1), (2), (3), (4), (5) and (6) above;
nor shall U.S. Additional Amounts be paid with respect to any payment of the
principal of, or any interest on, a Note to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States, or any
political subdivision or taxing authority thereof or therein to be included
in the income, for tax purposes, of a beneficiary or settlor with respect to
such fiduciary or a member of such partnership or a beneficial owner who would
not have been entitled to such U.S. Additional Amounts had such beneficiary,
settlor, member or beneficial owner been the holder of the Note.
(ii) If any deduction or withholding for any present or future taxes,
assessments or other governmental charges of the Federal Republic of
Germany (or any political subdivision or taxation authority thereof or therein)
shall at any time be required by the Federal Republic of Germany (or any such
political subdivision or taxing authority) in respect of any amounts to be paid
by the Guarantor under the terms of the Guarantee, the Guarantor will pay to
the Holder of this Note such additional amounts (the "German Additional
Amounts" and, together with any U.S. Additional Amounts, the "Additional
Amounts") as may be necessary in order that the net amounts paid to such
holder of this Note, after such deduction or withholding, shall be not less
than the amounts specified in this Note to which such Holder is entitled;
provided, however, that the Guarantor shall not be required to make any
payment of German Additional Amounts to a Holder for or on account of:
(1) any tax, assessment or other governmental charge which would
not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of a power over,
such Holder, if such Holder is an estate, a trust, a partnership or a
corporation) and the Federal Republic of Germany or any political
subdivision or territory or possession thereof or area subject to its
jurisdiction, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen, domiciliary, national or resident thereof or
being or having been present or engaged in a trade or business therein
or having, or having had, a permanent establishment therein or
otherwise having, or having had, some connection with the Federal
Republic of Germany or such political subdivision, territory or
possession other than the holding or ownership of a Note subject to the
Guarantee or the collection of principal of and interest, if any, on, or
the enforcement of, a Note or the Guarantee or (ii) the presentation by
the Holder of a Note (where presentation is required) for payment on a
date more than 30 days after the date on which such payment became
due and payable or the date on which payment thereof is duly provided
for, whichever occurs later, except to the extent that the Holder would
have been entitled to such German Additional Amounts if it had
presented such Note for payment on any day within such period of 30
days; or
(2) any tax, fee or duty which the Holder is subject to for any
reason other than the mere fact of being a recipient of principal or
interest in respect of the Notes, in particular if the Holder is subject to
such taxes, fees or duties based on a personal unlimited or limited tax
liability; or
(3) any estate, inheritance, gift, sale, transfer, personal property tax
or any similar tax, assessment or other governmental charge; or
(4) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments of (or in respect
of) principal of, or any interest on, the Notes or the Guarantee; or
(5) any tax, assessment or other governmental charge which would
not have been imposed but for the failure to comply with certification,
information or other reporting requirements concerning the nationality,
residence or identity of the Holder or beneficial owner of such Note, if
such compliance is required by statute or by regulation of the Federal
Republic of Germany or of any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from such
tax, assessment or other governmental charge; or
(6) any combination of items (1), (2), (3), (4) and (5) above;
nor shall German Additional Amounts be paid with respect to any payment of
the principal of or any interest on, a Note to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the Federal Republic of
Germany, or any political subdivision or taxing authority thereof or therein to
be included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
who would not have been entitled to such German Additional Amounts had
such beneficiary, settlor, member or beneficial owner been the Holder of the
Note.
(c) The Notes may be redeemed, at the option of the Issuer or the
Guarantor, as the case may be, in whole but not in part, upon notice as
described below, at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest to the date fixed for redemption, if
any, if, as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the closing date in respect of the
Notes, on the occasion of the next payment of principal or interest in
respect of the Notes, the Issuer or the Guarantor, as the case may be, would
be obligated to pay U.S. Additional Amounts and such obligation cannot be
avoided by the Issuer or the Guarantor, as the case may be, taking reasonable
measures available to it. Prior to the giving of any notice of redemption of
the Notes pursuant to the foregoing, the Issuer or the Guarantor, as the
case may be, shall deliver to the Fiscal and Principal Paying Agent an
opinion of independent U.S. legal counsel (of recognized standing) stating
that the Issuer or the Guarantor, as the case may be, is entitled to effect
such redemption, together with a certificate of the Issuer or the Guarantor,
as applicable, setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer or the Guarantor, as the case
may be, so to redeem have occurred. The Notes may also be redeemed, at the
option of the Issuer or the Guarantor, in whole but not in part,
upon notice as described below, at a redemption price equal to 100% of
the principal amount thereof, together with accrued interest to the
date fixed for redemption, if any, if as a result of any
change in, or amendment to, the laws (or any regulations or rulings
promulgated thereunder) of the Federal Republic of Germany or any political
subdivision or taxing authority thereof or therein affecting taxation, or any
change in official position regarding application or interpretation of such
laws, regulations or rulings (including a holding by a court of competent
jurisdiction), which change, amendment, application or interpretation becomes
effective on or after the closing date in respect of the Notes, on the
occasion of the next payment of principal or interest required to be made
under the Guarantee, the Guarantor would be obligated to pay German Additional
Amounts by virtue of a payment required to be made under the Guarantee and
such obligation cannot be avoided by the Guarantor taking reasonable
measures available to it. Prior to the giving of any notice of redemption
of the Notes pursuant to the foregoing, the Guarantor shall deliver
to the Fiscal and Principal Paying Agent an opinion of independent
German legal counsel (of recognized standing) to the Guarantor stating
that the Guarantor is entitled to effect such redemption, together with
a certificate of the Guarantor setting forth a statement of facts showing that
the conditions precedent to the right of the Guarantor so to redeem
have occurred. Notice of redemption of the Notes as provided above shall be
given, not less than 30 nor more than 60 days prior to the date fixed for
redemption; provided that no such notice of redemption shall be given earlier
than 90 days prior to the earliest date on which the Issuer would be required
to pay Additional Amounts if a payment in respect of such Notes was then due,
all as provided in the Fiscal Agency Agreement. Notice having been given, the
Notes shall become due and payable on the date fixed for redemption and will
be paid at the redemption price, together with accrued interest to the date
fixed for redemption, at the place or places of payment and in the manner
specified in the Notes.
From and after the redemption date, if moneys for the
redemption of the Notes called for redemption shall have been made available
as provided in the Notes for redemption on the redemption date, such Notes
shall cease to bear interest, and the only right of the Holders of such Notes
shall be to receive payment of the redemption price and all unpaid interest
accrued to the date of redemption.
4. Events of Default. The following will be Events of Default
(each an Event of Default) with respect to the Notes:
(a) the failure to pay the principal amount of, or the redemption
price of, any Note when the same shall become due and payable,
whether at stated maturity, by acceleration, by notice of redemption or
otherwise, or the failure to pay any installment of interest or any
Additional Amounts as and when the same shall become due and
payable and such failure shall continue for a period of 30 days;
(b) except as provided in the preceding clause 4(a), the Issuer or the
Guarantor shall default in the performance of, or shall breach, any
covenant or warranty contained in the Notes or the Guarantee, as
applicable, and continuance of such default or breach for a period of 90
days after written notice thereof shall have been given to the Issuer or
the Guarantor, as applicable, by the Fiscal and Principal Paying Agent
or shall have been given to the Issuer or the Guarantor, as applicable,
and the Fiscal and Principal Paying Agent by the Holders of at least
25% in aggregate principal amount of Notes then outstanding, which
notice shall specify the default and require the Issuer or the Guarantor,
as applicable, to remedy the same;
(c) any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Issuer, the Guarantor or
any of their respective subsidiaries for money borrowed, whether such
indebtedness now exists or shall hereafter be created, shall occur and
shall result in such indebtedness in principal amount in excess of
$40,000,000 (or the equivalent thereof in foreign or composite
currencies) becoming or being declared due and payable prior to the
date on which it would otherwise become due and payable, and such
acceleration shall not be rescinded or annulled, or such indebtedness
shall not have been discharged, within a period of 30 days after written
notice thereof shall have been given to the Issuer or the Guarantor, as
applicable, by the Fiscal and Principal Paying Agent or to the Issuer, or
the Guarantor, as applicable, and the Fiscal and Principal Paying Agent
by the Holders of at least 25% in aggregate principal amount of Notes
then outstanding, which notice shall specify the event of default and
require the Issuer or the Guarantor, as applicable, to cause such
acceleration to be rescinded or annulled or to cause such indebtedness
to be discharged;
(d) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Issuer, the Guarantor, or any
Principal Subsidiary (as defined below) in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
liquidation, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Issuer, the Guarantor or any Principal
Subsidiary, bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Issuer, the Guarantor or any
Principal Subsidiary under any applicable law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer, the Guarantor or any Principal Subsidiary
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days;
(e) the commencement by the Issuer, the Guarantor or any
Principal Subsidiary of a voluntary case or proceeding under any
applicable federal or state bankruptcy, liquidation, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Issuer, the
Guarantor or any Principal Subsidiary in an involuntary case or
proceeding under any applicable federal or state bankruptcy,
liquidation, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by it to
the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Issuer, the Guarantor or any Principal
Subsidiary or of any substantial part of its property, or the making by
the Issuer, the Guarantor or any Principal Subsidiary of an assignment
for the benefit of creditors, or the taking of any corporate action by the
Issuer, the Guarantor or any Principal Subsidiary in furtherance of any
such action; and
(f) the Guarantee shall cease to be in full force and effect, or the
Guarantor shall deny or disaffirm its obligations under the Guarantee.
In each and every such case where such Event of Default shall have
occurred and be continuing (other than an Event of Default specified in clause
(a) above or an Event of Default in respect of the Issuer, the Guarantor or any
Principal Subsidiary specified in clauses (d) or (e) above) the Holders of at
least 25% in aggregate principal amount of the Notes at the time outstanding
may, by written notice to the Issuer, the Guarantor and the Fiscal and
Principal Paying Agent, declare the principal of and all accrued
interest on the Notes to be due and payable upon the date that written
notice is received by or on behalf of the Issuer, the Guarantor and
the Fiscal and Principal Paying Agent unless prior to such date all Events of
Default in respect of all the Notes shall have
been cured. Upon any such declaration, the Holders of a majority in the
principal amount of all the Notes by notice to the Issuer, the Guarantor and
the Fiscal and Principal Paying Agent may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
by a court of competent jurisdiction and if all existing Events of Default have
been cured or waived except non-payment of principal that has become due
solely because of the acceleration. If an Event of Default specified in clause
(a) above occurs, each Holder may, by written notice to the Issuer, the
Guarantor and the Fiscal and Principal Paying Agent, declare the principal
of and all accrued interest on the Notes of such Holder to be immediately
due and payable upon the date that written notice is received by or on
behalf of the Issuer, the Guarantor and the Fiscal and Principal Paying
Agent unless prior to such date all Events of Default in respect of
such Holder's Notes have been cured. If an Event of Default in respect
of the Issuer, the Guarantor or any Principal Subsidiary specified in
clause (d) or (e) above occurs, the principal of
and accrued interest on the Notes will be immediately due and payable without
any declaration or other act on the part of any Holder of Notes.
As used herein, "Principal Subsidiary" means any direct or indirect
Subsidiary (as defined in Section 5 herein) of the Issuer or the Guarantor
whose total assets, shareholders equity or earnings before tax (as determined
in accordance with applicable generally accepted accounting principles) exceeds
10% of the Issuer's or the Guarantor's consolidated total assets, shareholders
equity or earnings before tax, respectively (in each case determined in
accordance with applicable generally accepted accounting principles).
5. Certain Covenants of the Issuer and the Guarantor. (a)
Consolidation, Merger, Sale or Conveyance. (i) The Issuer may consolidate
with or merge into any other person, or sell, convey or transfer all or
substantially all of its assets to any other person, without the consent of the
Holders of the Notes, provided that:
(w) the entity (if other than the Issuer) formed by or resulting from any
such consolidation or merger shall be organized and existing under
the laws of the United States, any state thereof or the District of
Columbia, and shall expressly assume, by an amendment to the
Fiscal Agency Agreement and the Notes pursuant to the Fiscal
Agency Agreement, the due and punctual payment of the principal
of, and premium, if any, and interest on, the Notes and the due and
punctual performance and observance of all the covenants and
conditions to be performed or observed by the Issuer pursuant to the
Fiscal Agency Agreement and the Notes;
(x) such amendment shall be in form reasonably satisfactory to the
Fiscal and Principal Paying Agent, shall be duly executed by the
entity succeeding the Issuer and, when so executed, shall constitute
a valid and legally binding agreement of such entity succeeding the
Issuer, enforceable against such entity in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally and to general principles of equity,
regardless of whether in a proceeding in equity or at law, and shall
be delivered to the Fiscal and Principal Paying Agent;
(y) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred or be
continuing; and
(z) the Issuer has delivered to the Fiscal and Principal Paying Agent an
officers' certificate and an opinion of counsel, each stating that the
conditions precedent to such consolidation, merger, sale,
conveyance or transfer have been satisfied.
Notwithstanding the foregoing, the Issuer may sell, convey or transfer
all or substantially all of its assets to any person which is directly or
indirectly wholly-owned by one or more of the Issuer, the Guarantor and their
wholly-owned Subsidiaries.
(ii) The Guarantor may consolidate with or merge into any
other person, or sell, convey or transfer all or substantially all of its
assets to any other person, without the consent of the Holders of the Notes,
provided that:
(v) the purchasing or transferee corporation or the successor,
continuing or resulting corporation in the case of a merger or
consolidation (if the Guarantor is not the surviving corporation),
as the case may be (the "Successor Guarantor"), expressly
assumes, by an amendment to the Fiscal Agency Agreement
and the Guarantee pursuant to the Fiscal Agency Agreement,
the obligations of the Guarantor under the Fiscal Agency
Agreement and the Guarantee and the due and punctual
performance and observance of all the covenants and conditions
to be performed or observed by the Guarantor pursuant to the
Fiscal Agency Agreement and the Guarantee;
(w) such amendment shall be in form reasonably satisfactory to the
Fiscal and Principal Paying Agent, shall be duly executed by the
Successor Guarantor and, when so executed, shall constitute a
valid and legally binding agreement of such Successor
Guarantor, enforceable against such Successor Guarantor in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally and to
general principles of equity, regardless of whether in a
proceeding in equity or at law, and shall be delivered to the
Fiscal and Principal Paying Agent;
(x) if such Successor Guarantor is organized under the laws of a
jurisdiction other than the Federal Republic of Germany (a
"Successor Guarantor Jurisdiction"), such Successor Guarantor
agrees to assume the Guarantor's obligations under the
Guarantee to pay any U.S. Additional Amounts pursuant to
Section 3(b)(i) herein or any amounts akin to German
Additional Amounts pursuant to Section 3(b)(ii) herein imposed
by the laws of the jurisdiction in which the Successor Guarantor
is organized;
(y) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred or
be continuing; and
(z) the Guarantor shall have delivered to the Fiscal and Principal
Paying Agent an officers' certificate and an opinion of counsel,
each stating that the conditions precedent to such consolidation,
merger, sale, conveyance or transfer have been satisfied.
In addition to the foregoing conditions, in the event of any such
assumption of the obligations of the Issuer or the Guarantor, the Issuer or the
Guarantor, as the case may be, will be required to deliver an opinion of its
counsel of recognized standing to the effect that such assumption of the
Issuer's or the Guarantor's obligations under the Notes or the Guarantee, as
the case may be, shall not be deemed for U.S. federal income tax purposes to
be a taxable exchange of the Notes for new Notes by the Holders thereof,
resulting in the recognition of gain or loss for such purposes or resulting
in any other material adverse tax consequences to Holders of the Notes.
(b) Limitations on Liens. For so long as any Notes remain
outstanding, neither the Issuer nor the Guarantor will create or allow, and nor
will either the Issuer or the Guarantor permit any Subsidiary to create or
allow, any lien, mortgage, pledge, security interest, charge or other
encumbrance (a "Lien") on any part of its Property (as defined below) to secure
any Indebtedness for borrowed money without providing that the Notes will be
secured equally and ratably with or prior to such Indebtedness, for so long as
the Indebtedness is secured. However, this limitation will not apply to any
Lien that: (i) exists on or prior to the date of the Fiscal Agency Agreement;
(ii) arises by operation of law and does not secure amounts that are more
than 90 days overdue or are otherwise being contested in good faith;
(iii) arises from any judgment that does not give rise to an event of
default; (iv) exists over Property or shares of any Subsidiary (as defined
below) which becomes a Subsidiary after the date of the Fiscal
Agency Agreement, provided that the Lien was not created in contemplation
of the Subsidiary becoming a Subsidiary; (v) exists over any Property as a
security for indebtedness incurred to finance all or part of the price
including costs such as increased costs due to escalation, interest during
construction and similar costs of the acquisition of the Property, or (in the
case of Property other than shares of any Subsidiary)
the development, redevelopment, modification or improvement of the
Property, and created within 180 days after the acquisition; (vi) exists over
any Property which is acquired by the Issuer, the Guarantor or any Subsidiary,
or Property or shares of any entity that merges into or consolidates with the
Issuer, the Guarantor or any Subsidiary, provided that the Lien was not created
in contemplation of the transaction; (vii) is incurred to secure the
performance of tenders, bids, leases, statutory obligations, surety and appeal
bonds, government contracts, performance and return-of-money bonds and other
similar obligations incurred in the ordinary course of business; (viii) is in
favor of the federal government of the United States or the government of any
state in the United States with respect to the Issuer and its Subsidiaries,
or the government of the Federal Republic of Germany or any member state of the
European Union or any other government with respect to the Guarantor's
Subsidiaries (other than the Issuer), or any instrumentality of any of them,
securing obligations of the Issuer, the Guarantor, or any Subsidiary under any
contracts or payments owed to any such entity, when the law requires that such
obligations be so secured; (ix) secures taxes or assessments or other
governmental charges, which, if overdue, are being contested diligently and in
good faith; (x) was created on any Property to secure Indebtedness incurred in
connection with the financing of such Property, the repayment of which is to
be made from revenues arising out of, or other proceeds of realization from,
such Property, with recourse to those revenues and proceeds and other
Property used in connection with or forming the subject matter of such
Property, but without recourse to the Issuer, the Guarantor or any of their
Subsidiaries; (xi) secures Indebtedness in respect of interest rate agreement
obligations or currency agreement obligations entered into to protect against
fluctuations in interest rates or currency exchange rates and not for
speculative reasons; (xii) constitutes an extension, renewal or replacement of
any Lien referred to above, for amounts not exceeding the principal amount of
the borrowed money secured by such Liens, provided that the extension, renewal
or replacement is limited to the same Property that secured the original Lien
(plus improvements on the property); or (xiii) is in the favor of the Issuer or
the Guarantor or a Subsidiary of either of them. The Issuer, the Guarantor
or any Subsidiary may also create or allow Liens over any Property so long
as the aggregate amount of Indebtedness for borrowed money secured by all
Liens (excluding the amount of the indebtedness secured by the Liens
described above) and the aggregate Attributable Debt (as defined below) of
all Sale and Leaseback Transactions (as defined below) does not exceed 15%
of the Consolidated Net Tangible Assets (as defined below) of the Guarantor.
(c) Limitations on Sale and Leaseback Transactions. For so long as
any Notes remain outstanding, the Issuer and the Guarantor will not, and will
not permit any Subsidiary to, enter into any arrangement providing for the
leasing for a period of more than three years, of any Property which has been
owned by the Issuer, the Guarantor or such Subsidiary for more than 180 days
and which has been or is to be transferred by the Issuer, the Guarantor or such
Subsidiary to a buyer/lessor that is not the Issuer, the Guarantor or a
Subsidiary of either of them (a "Sale and Leaseback Transaction") unless:
(i) the Issuer, the Guarantor or such Subsidiary would be entitled to
create indebtedness secured by a Lien (pursuant the provisions of
Section 5(b) herein) on the Property to be leased back in an amount
equal to the Attributable Debt of the Sale and Leaseback Transaction
without equally and ratably securing the Notes; or
(ii) within 180 days after the consummation of the Sale and
Leaseback Transaction, the Issuer, the Guarantor or such Subsidiary, as
applicable, spends for any Property, including any capital
improvements, an amount equal to: (x) the greater of: (1) the net
proceeds that the Issuer receives from the Sale and Leaseback
Transaction, and (2) the fair market value of the property at the time of
the transaction, as determined in good faith by the board of directors of
the Issuer, the Guarantor or such Subsidiary, as applicable (such greater
amount referred to here as the "net proceeds"); or (y) a part of the net
proceeds, and the Issuer, the Guarantor or such Subsidiary elect to
apply the balance of the net proceeds in the manner described in the
following clause (iii); or
(iii) within 180 days after the consummation of any Sale and
Leaseback Transaction, the Issuer, the Guarantor or such Subsidiary, as
applicable, applies an amount equal to the net proceeds (less any
amount spent pursuant to Section 5(c)(ii) herein) to the retirement or
repayment of Indebtedness (as defined below) of the Issuer, the
Guarantor, or such Subsidiary. No retirement referred to in this clause
may be effected by payment at maturity or pursuant to any mandatory
sinking fund or prepayment provision (unless the repayment is required
because of the receipt of the net proceeds).
(d) For the purpose of Sections 5(b) and (c) above, the following
terms shall have the following respective meanings:
"Attributable Debt" means, as to any lease in respect of a Sale and
Leaseback Transaction, as of the date of determination, the lesser of (a)
the fair value of the property subject to the Sale and Leaseback Transaction
(as determined in good faith by the Board of Directors of the Issuer or the
Guarantor, as applicable), and (b) the present value, discounted at the rate of
interest set forth or implicit in the terms of the lease (or, if this rate of
interest is not practicable to determine, the weighted average annual
interest rate borne by the Notes) compounded semi-annually, of the total
amount of rent required to be paid under the lease during the remaining
term of the lease, including any period for which the lease has been
extended. For the purposes of clause (b) of this definition, rental payments
will not include amounts payable by or on behalf of the lessee on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges.
"Consolidated Net Tangible Assets" means the total of all assets
reflected on a consolidated balance sheet of the Guarantor and its consolidated
subsidiaries prepared in accordance with International Accounting Standards
("IAS") at their net book values (after deducting related depreciation,
depletion, amortization and all other valuation reserves which, in accordance
with IAS, should be set aside in connection with the business conducted), but
excluding goodwill and all other like intangible assets, less the aggregate
of the current liabilities of the Guarantor and its consolidated
subsidiaries, all as determined in accordance with IAS. For purposes of
this definition, "current liabilities" include all indebtedness
for money borrowed, incurred, issued, assumed or guaranteed by the Guarantor
and its consolidated subsidiaries, and other payables and accruals, in each
case payable on demand or due within one year of the date of determination
of Consolidated Net Tangible Assets, but shall exclude any portion of
long-term debt maturing within one year of the date of such determination,
all as reflected on such consolidated balance sheet of the Guarantor and
its consolidated subsidiaries prepared in accordance with IAS.
"Indebtedness" means any indebtedness for borrowed money in the
form of bonds, notes, debentures or other similar evidence of indebtedness
which by its terms or by the terms of any instrument or agreement relating to
such indebtedness matures, or which is otherwise payable or unpaid, more than
one year from, or is directly or indirectly renewable or extendible at the
option of the debtor to a date more than one year from the date of
creation thereof.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Property" means (a) any and all land, buildings, fixtures, machinery,
equipment and other tangible assets owned by the Issuer, the Guarantor or any
Subsidiary, and any and all leasehold interests of the Issuer, the Guarantor or
any Subsidiary in any of the foregoing to the extent any are leased by the
Issuer, and any and all leasehold improvements in respect of the foregoing; and
(b) any shares of Subsidiaries that are owned by the Issuer or the Guarantor.
"Subsidiary" means any corporation of which the outstanding voting
equity interests having at least a majority of the votes entitled to be cast
in the election of directors will at the time be owned directly or
indirectly by the Issuer or the Guarantor, or any other person of which at
least a majority of voting equity interests are at the time directly or
indirectly owned by the Issuer or the Guarantor.
(e) Defeasance. The Issuer or the Guarantor, as applicable, may
discharge its respective obligation to comply with the covenants specified in
Section 5 herein by irrevocably depositing funds or obligations issued by the
United States in an amount sufficient to provide for the timely payment of
principal, premium, if any, interest and all other amounts due under the Notes
with the Fiscal and Principal Paying Agent, acting as trustee for such purposes,
provided that (i) such deposit will not result in a breach or violation of, or
constitute a default under the Notes or any other agreement or instrument of
which the Issuer or the Guarantor is a party or by which it is bound; (ii) no
Event of Default or event which with the giving of notice or lapse of time
would be reasonably expected to become an Event of Default with respect to
the Notes shall have occurred and be continuing on the date of such deposit;
(iii) in the event that, on the date of such deposit, all Notes then outstanding
are not due and payable, or have not been called for redemption, within one
year, the Issuer has delivered to the Fiscal and Principal Paying Agent an
opinion of independent tax counsel of recognized standing to the effect that
Holders of the Notes will not recognize income, gain or loss for United States
Federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to United States Federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such deposit and defeasance had not occurred; and (iv) the
Issuer has delivered to the Fiscal and Principal Paying Agent an officer's
certificate and an opinion of independent counsel of recognized standing,
each stating that all the conditions precedent herein provided for relating
to the defeasance contemplated by this paragraph 5(d) have been complied with.
6. Replacement, Exchange and Transfer of Notes. (a) In case any Note
shall become mutilated, destroyed, lost or stolen, the Issuer may execute, and,
upon the request of the Issuer, the Fiscal and Principal Paying Agent shall
authenticate and deliver, a new Note and bearing a number not
contemporaneously outstanding, in exchange and substitution for the mutilated
or defaced Note or in lieu of and in substitution for the destroyed, lost or
stolen Note. In every case the applicant for a substitute Note shall furnish
to the Issuer and to the Paying Agents such security or indemnity as may be
required by them to indemnify and defend and to save each of them and any
agent of the Issuer or the Paying Agents harmless and, in every case of
destruction, loss or theft evidence to their satisfaction of the destruction,
loss or theft of such Note and of the ownership thereof. Upon the issuance
of any substitute Note, the Issuer may require the payment of a
sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Registrar or Transfer
Agents) connected therewith.
(b) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, and subject to paragraph 6(e) hereof, a Note or
Notes may be exchanged for an equal aggregate principal amount of Notes in
different Authorized Denominations by surrender of such Note or Notes to any
Transfer Agent or at the office of any other agent of the Issuer designated for
such purpose, duly endorsed or accompanied by a proper instrument of
assignment and transfer, together with a written request for the exchange.
(c) Upon the terms and subject to the conditions set forth in the
Fiscal Agency Agreement, and subject to paragraph 6(e) hereof, a Note may be
transferred in whole or in part (in the amount of U.S.$250,000 or any multiple
of $1,000 in excess thereof) by the Holder or Holders surrendering the Note for
registration of transfer at the office of any Transfer Agent or at the office
of any other agent of the Issuer designated for such purpose, duly endorsed or
accompanied by an executed instrument of assignment and transfer.
(d) The costs and expenses of effecting any exchange or
registration of transfer pursuant to the foregoing provisions, except for the
expenses of delivery by other than regular mail (if any) and except for the
payment of a sum sufficient to cover any tax or other governmental charge or
insurance charges that may be imposed in relation thereto, will be borne by the
Issuer.
(e) The Transfer Agents or Registrar may decline to accept any
request for an exchange or registration of transfer during the period of 10
days preceding (i) the due date for any payment of principal of or interest,
if any, on the Notes or (ii) the date on which the Notes are scheduled for
redemption.
7. Modifications and Amendments; Noteholders' Meetings. (a)
Notifications of and amendments to the Fiscal Agency Agreement or to the
terms and conditions of the Notes may be made, and future compliance
therewith or past default by the Issuer or the Guarantor may be waived, with
the consent of the Holders of at least a majority in aggregate principal amount
of the Notes at the time outstanding, or of such lesser percentage as may act
at a meeting of Holders held in accordance with the provisions of the Fiscal
Agency Agreement; provided, that no such modification, amendment, waiver
or consent may, without the consent of the holder of each Note so affected: (i)
change the Stated Maturity of the principal of, or of any installment of
interest on, any Note; (ii) change any Interest Payment Date; (iii) reduce the
principal amount of or interest on any Note or Additional Amounts payable with
respect thereto or reduce the amount payable in the event of redemption or
default; (iv) change the place or currency of payment of principal of or
interest on the Notes or Additional Amounts payable with respect thereto; (v)
change the obligation of the Issuer or the Guarantor to pay Additional Amounts;
(vi) impair the right to institute suit for enforcement of any such payment on
or with respect to the Notes; or (vii) reduce the above-stated percentage of
aggregate principal amount of Notes outstanding necessary (w) to modify or
amend the Fiscal Agency Agreement or the terms and conditions of the Notes,
or (x) to waive any future compliance or past default, or (y) to reduce the
quorum requirements or the percentage of aggregate principal amount of Notes
outstanding required for the adoption of any action at a Holders meeting or (z)
to reduce the percentage of aggregate principal amount of Notes outstanding
necessary to rescind or annul any declaration of the principal of and all
accrued interest on the Notes to be due and payable.
Any modifications, amendments or waivers to the Fiscal Agency
Agreement or to these terms and conditions will be conclusive and binding on
all Holders of the Notes, whether or not they have given such consent or were
present at such meeting, and on all future Holders of Notes, whether or not
notation of such modifications, amendments or waivers is made upon the
Notes. Any instrument given by or on behalf of any Holder of a Note in
connection with any consent to any such modification, amendment or waiver
will be irrevocable once given and will be conclusive and binding on all
subsequent Holders of such Note.
(b) At a meeting of the Holders of the Notes for the purpose of
approving a modification or amendment to, or obtaining a waiver of, any
covenant or condition set forth in the Notes, persons entitled to vote at least
a majority in aggregate principal amount of the Notes at the time outstanding
shall constitute a quorum. In the absence of a quorum at any such meeting, the
meeting may be adjourned for a period of not less than 10 days; in absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days; at the reconvening of any
meeting further adjourned for lack of a quorum, the persons entitled to vote at
least 25% in aggregate principal amount of the Notes at the time outstanding
shall constitute a quorum for the taking of any action set forth in the
notice of the original meeting. At a meeting or an adjourned meeting duly
convened and at which a quorum is present as aforesaid, any resolution to modify
or amend, or to waive compliance with, any of the covenants or conditions
referred to above shall be effectively passed if passed by the persons entitled
to vote the lesser of (i) at least a majority in aggregate principal amount of
Notes then outstanding or (ii) at least 75% in aggregate principal amount of
the Notes represented and voting at the meeting.
8. Non-business Days; Calculation of Interest. (a) In any case
where the date of maturity of the principal of or interest on the Notes or the
date fixed for redemption of the Notes shall be in New York City a Saturday,
Sunday, or a day on which banking institutions are authorized or obligated by
law to close, then payment of principal or interest need not be made on such
date at such place but it may be made on the next succeeding day which is not,
in New York City, a Saturday, Sunday, or a day on which banking institutions
are authorized or obligated by law to close, with the same force and effect as
if made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
(b) Interest in respect of any period of less than one year shall be
calculated on the basis of a 360-day year of twelve 30-day months.
9. Paying Agents, Transfer Agents and Registrar. In acting under
the Fiscal Agency Agreement and in connection with the Notes, the Paying
Agents, Transfer Agents and the Registrar are acting solely as agents of the
Issuer and do not assume any obligation towards or relationship of agency or
trust for or with the owners or Holders of the Notes, except that any funds held
by any Paying Agent or Registrar for payment of principal of or interest on the
Notes, or Additional Amounts with respect thereto, shall be held in trust by it
for such owners and Holders and applied as set forth herein, but need not be
segregated from other funds held by it, except as required by law. For a
description of the duties and the immunities and rights of the Paying Agents,
Transfer Agents and Registrar under the Fiscal Agency Agreement, reference
is made to the Fiscal Agency Agreement, and the obligations of the Paying
Agents, Transfer Agents and Registrar to the Holders hereof are subject to such
immunities and rights.
10. Notices. Notices to Holders of Notes will be mailed to them (or
the first named of joint Holders) by first class mail (or, if first class mail
is unavailable, by airmail) at their respective addresses in the register and
deemed to have been given on the fourth weekday after the date of mailing.
Notice of any meeting of Holders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed to Holders at their registered addresses
not less than 30 nor more than 60 days prior to the date fixed for the
meeting. In addition, so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such exchange so
require, notice will also be published in a daily newspaper with general
circulation in Luxembourg. Any such notice will be deemed to have been
given on the date of such publication or if published in such newspapers on
different dates, on the date of the first publication.
11. Governing Law. (a) The Notes shall be construed in accordance
with and governed by the laws of the State of New York.
(b) The Issuer has irrevocably submitted to the non-exclusive
jurisdiction of any New York State or United States Federal court sitting in
the Borough of Manhattan, New York, New York over any suit, action or
proceeding arising out of or relating to the Fiscal Agency Agreement or any
Note. The Issuer has appointed CT Corporation System, 111 8th Avenue, New
York, New York 10011 as its agent upon whom process must be served in any
such suit, action or proceeding.
12. Authentication. This Note shall not become valid or obligatory
until the certificate of authentication hereon shall have been duly signed by
the Registrar acting under the Fiscal Agency Agreement.
13. Descriptive Headings. The descriptive headings appearing in
these terms and conditions are for convenience of reference only and shall not
alter, limit or define the provisions hereof.
SCHEDULE TO RULE 144A GLOBAL NOTE
Initial Principal Amount
$168,000,000
Date of Decrease/Increase
Decrease in Principal Amount at Maturity
Increase in Principal Amount at Maturity
Total Principal Amount at Maturity Following such Increase/Decrease
Notation Made by or on behalf of Registrar
