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EXHIBIT T3C.2
ANNEX A
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF , 1998
AMONG
POLYTAMA INTERNATIONAL FINANCE B.V.
AS ISSUER,
P.T. POLYTAMA PROPINDO
AS GUARANTOR,
AND
THE BANK OF NEW YORK
AS TRUSTEE
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$200,000,000 11 1/4% GUARANTEED SECURED NOTES DUE 2007
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This FIRST SUPPLEMENTAL INDENTURE, dated as of , 1998
(the "First Supplemental Indenture"), to the Indenture (as defined in the first
recital) is entered into by and between Polytama International Finance B.V., a
private company with limited liability incorporated under the laws of The
Netherlands, as issuer (the "Issuer"), P.T. Polytama Propindo, a limited
liability company incorporated under the laws of the Republic of Indonesia, as
guarantor (the "Company"), and The Bank of New York, a New York banking
corporation, as trustee (the "Trustee"). Capitalized terms that are not defined
herein shall have the meanings set forth in the Indenture.
WHEREAS, the Issuer, the Company and the Trustee, are parties to that
certain Indenture (as amended, modified or supplemented from time to time in
accordance with the terms thereof, the "Indenture") dated as of June 1, 1997
pursuant to which the Issuer issued US$200,000,000 in aggregate principal amount
of 11 1/4% Guaranteed Secured Notes due 2007.
WHEREAS, the Issuer and the Company desire to amend certain provisions of
the Indenture as more particularly described in Article I herein (the
"Amendments");
WHEREAS, Section 9.02 of the Indenture provides that the Issuer, the
Company and the Trustee may amend the Indenture with the written consent of the
Holders;
WHEREAS, 100% of the Holders have duly consented to the Amendments;
WHEREAS, the conditions set forth in the Indenture for the execution and
delivery of the Amendments have been satisfied; and
WHEREAS, the Issuer, the Company and the Trustee are executing and
delivering this First Supplemental Indenture in order to provide for the
Amendments;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Issuer, the Company and the
Trustee hereby agree as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
SECTION 1.1. Preamble to the Indenture. Paragraph 2 of the Preamble is
hereby amended to read in its entirety as follows:
"Each party agrees as follows for the benefit of the other parties and for
the benefit (except as otherwise provided in this Indenture) of the Holders of
the Issuer's 11 1/4% Guaranteed Secured Notes Due 2007 (the "Notes", which term
shall include the Notes as amended pursuant to the First Supplemental Indenture
and any Notes issued thereafter in accordance with this Indenture, as amended by
the First Supplemental Indenture)."
SECTION 1.2. Section 1.01 of the Indenture -- Definitions. Section 1.01 of
the Indenture is hereby amended to include the following definitions:
""Additional Securities" means additional Securities which may be issued
after the Issue Date pursuant to Article 16 of this Indenture (other than in
exchange for or in replacement of outstanding Securities). All references herein
to "Securities" shall be deemed to include Additional Securities.
"First Supplemental Indenture" means the First Supplemental Indenture,
dated as of , 1998, entered into by and between the Issuer, the
Company and the Trustee.
"First Supplemental Indenture Effective Date" means the date the First
Supplemental Indenture shall have become effective in accordance with the terms
thereof."
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SECTION 1.3. Section 2.02. of the Indenture -- Execution and
Authentication. Paragraph 4 of Section 2.02 of the Indenture shall be amended to
read as follows:
"Section 2.02. Execution and Authentication. The Trustee shall authenticate
and deliver Securities for original issue in the aggregate principal amount of
not more than $200,000,000 (plus the amount of Additional Securities that may be
issued pursuant to the terms and conditions stated in Section 1 -- Interest of
the Form of Reverse Side of Note due 2007), pursuant to a written order of the
Issuer signed by an officer of the Issuer. The order shall specify the amount of
Securities to be authenticated and the date on which the original issue of the
Securities is to be authenticated. The aggregate principal amount of Securities
which may be outstanding at any time may not exceed $200,000,000 (plus the
amount of Additional Securities that may be issued pursuant to the terms and
conditions stated in Section 1 -- Interest of the Form of Reverse Side of Note
due 2007), except as provided in Section 2.07."
SECTION 1.4. Section 4.04 of the Indenture -- Limitation on Indebtedness
and Preferred Stock of Restricted Subsidiaries. Paragraph 1 of Section 4.04 of
the Indenture is hereby amended to read in its entirety as follows:
"Section 4.04. Limitation on Indebtedness and Preferred Stock of Restricted
Subsidiaries. (A) neither the Issuer nor the Company shall permit any Restricted
Subsidiary to Incur, directly or indirectly, any Indebtedness or Preferred
Stock; provided, however, that the Issuer may Incur Indebtedness pursuant to the
issuance of Additional Securities and as permitted pursuant to Section 4.03(a)
or Section 4.03(b)."
SECTION 1.5. Section 4.22 of the Indenture -- Use of Proceeds. Section 4.22
of the Indenture is hereby amended to read in its entirety as follows:
"Section 4.22. Use of Proceeds. The proceeds to the Issuer from the sale of
the Securities (other than Additional Securities) shall be loaned by the Issuer
to the Company. The Company shall use such proceeds as set forth in the "Use of
Proceeds" section of the final prospectus used in connection with the offer and
sale of the Securities, provided however that, with respect to the portion of
the proceeds that constitute the Subsidiary Investment Collateral as of the
First Supplemental Indenture Effective Date, the Company shall use such proceeds
solely for the purposes and in the manner set forth in Article 15."
SECTION 1.6. Section 10.01 of the Indenture -- Guarantee. Paragraph 1 of
Section 10.01 of the Indenture is hereby amended to read in its entirety as
follows:
"Section 10.01. Guarantee. The Company, as principal obligor and not merely
as surety, irrevocably and unconditionally guarantees to each Holder of a
Security (including each Additional Security) authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns that: (i) principal
of, premium, if any, and interest on the Notes (including any Additional Amounts
payable in respect thereof) will be promptly paid in full when due, subject to
any applicable grace period, whether on the relevant Stated Maturity, on an
interest payment date, by acceleration, by call for redemption or upon
repurchase or purchase pursuant to Article 3, Sections 4.07, 4.08 or 4.10 or
Article 11 or otherwise and interest on the overdue principal and premium, if
any, and purchase price and interest on any interest, to the extent lawful (in
each case including interest accruing on or after filing of any petition in
bankruptcy or reorganization relating to the Issuer or the Company, whether or
not a claim for post filing interest is allowed in such proceeding), on the
Notes and all other amounts payable under the Notes and obligations of the
Issuer to the Holders or the Trustee hereunder or thereunder will be promptly
paid in full or performed when the same shall become due and payable, whether on
the relevant maturity date, upon acceleration, by call for redemption, upon
repurchase or purchase pursuant to a Change of Control, any Asset Disposition or
Major Collateral Disposition, any repurchase of Notes pursuant to Article 11 or
otherwise, all in accordance with the terms hereof and thereof; and (ii) in case
of any extension of time of payment or renewal of any Notes or of any such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, subject to any
applicable grace period, whether at maturity, on an interest payment date, by
acceleration, required repurchase or otherwise. All payments under this
Guarantee shall be made in U.S. dollars."
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SECTION 1.7. Section 12.04 of the Indenture -- Disposition of Collateral
Without Trustee Consent. Clause (iv) of Section 12.04 of the Indenture is hereby
amended to read in its entirety as follows:
"(iv) withdraw money from the Subsidiary Investment Account pursuant to
Article 15 in order to make the payments permitted thereunder."
SECTION 1.8. Article 15. There shall be added to the Indenture a new
Article 15 to read in its entirety as follows:
"Article 15
Additional Use Of Proceeds
Section 15.01 Use of Subsidiary Investment Collateral. Notwithstanding any
other provision to the contrary in this Indenture, the Collateral Agency
Agreement or the Security Documents, the Company hereby agrees as of the First
Supplemental Indenture Effective Date, that the Company shall make no further
investments in Use of Proceeds Transactions and that the Subsidiary Investment
Collateral as of the First Supplemental Indenture Effective Date shall be
applied solely for the purposes set forth below.
(a) Promptly upon receipt by the Trustee of notice from the Issuer or the
Company in accordance with Section 15.02(a), the Trustee shall direct the
Collateral Agent to transfer proceeds in the Subsidiary Investment Account to be
released and used as follows:
(i) to pay in full to all Holders the interest on the Securities due
and payable on June 15, 1998, but without any additional interest as
interest on overdue installments of interest pursuant to Section 4.01 of
this Indenture, payment of which is waived;
(ii) to pay in full pursuant to Section 4.01(b) of this Indenture any
Withholding Taxes and Additional Amounts that are due and payable in
relation to the payment of interest on the Securities due and payable on
June 15, 1998; and
(iii) to pay the fees and expenses of professional advisors and fees
and expenses (including the fees and expenses of counsel) of the Trustee
incurred in connection with the preparation of the First Supplemental
Indenture among the Company, the Issuer and the Trustee, the solicitation
of consents in connection therewith and the preparation of the Company's
annual report filed with the SEC on Form 20-F for the year ended December
31, 1997, not to exceed the aggregate amount of US$500,000.
(b) The balance of the proceeds in the Subsidiary Investment Account that
have not been used pursuant to (a) above shall be released and used to redeem in
part the outstanding principal amount of the Securities at a price equal to 100%
of the principal amount thereof plus accrued and unpaid interest to the date of
such redemption in accordance with the following:
(i) Promptly upon receipt by the Trustee of notice from the Issuer or
the Company in accordance with Section 15.02(b), the Trustee shall direct
the Collateral Agent to transfer the balance of the proceeds in the
Subsidiary Investment Account that have not been used pursuant to (a) above
to the Trustee for retention in a segregated account, which account the
Trustee shall establish and maintain at its principal corporate trust
office in New York, NY United States of America, in the name of the Trustee
on behalf of the Holders, which shall be kept separate from all other
accounts and assets of the Issuer and over which the Trustee shall have
sole dominion and control, including the sole right of withdrawal.
(ii) As promptly as possible thereafter, the Trustee shall use the
funds in the segregated account to redeem Securities in an amount equal to
the amount in such segregated account, less the accrued interest owing to
the redemption date and any Withholding Taxes that are payable in relation
to such accrued interest.
(iii) Together with such redemption of Securities, the Trustee shall
use the funds remaining in the segregated account for payment of the
accrued interest owing to the redemption date and upon
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compliance with the provisions of Section 15.02(b) shall release to the
Issuer the amount of such Withholding Taxes.
(iv) Securities shall be redeemed on a pro rata basis and the Trustee
shall notify in writing the Company and the Issuer of the Securities or
portions thereof to be redeemed, provided that, the Securities and any
portions thereof redeemed shall be in denominations of US$1000 or whole
multiples thereof.
(v) Following the receipt of notice from the Trustee of the Securities
or portions thereof to be redeemed, the Issuer shall provide a notice of
redemption containing the information required by Section 3.03 of the
Indenture, except that, the consenting Holders have consented to shorten or
waive the notice period requirement; in lieu of the information required
under clause (6), the notice shall state that the Securities called for
redemption are being redeemed pursuant to Article 15 of the Indenture; and
the provisions of Sections 3.04, 3.05 and 3.06 shall apply mutatis
mutandis, except that the Trustee shall deposit with the Paying Agent money
to pay the redemption price and accrued interest.
Section 15.02 Release of Funds from Subsidiary Investment Account.
(a) Upon the delivery by the Issuer or the Company to the Trustee of a
written notice requesting the release of proceeds from the Subsidiary Investment
Account for use for any of the purposes set forth in Section 15.01(a), such
notice to be accompanied by an Officer's Certificate that (i) specifies the
amount of funds required and the specific payments towards which the funds shall
be applied, and (ii) certifies that such funds shall be used solely for the
purposes permitted under Section 15.01(a), the Trustee shall be required to
direct the Collateral Agent, and to provide any instructions or authorizations
required by the Collateral Agent pursuant to the terms of the Collateral Agency
Agreement, to release, in the case of Section 15.01(a)(i), to the Trustee the
funds from the Subsidiary Investment Account requested pursuant to such written
notice for application by the Trustee to the specific payments specified in such
written notice and, in the case of Section 15.01(a)(ii) or 15.01(a)(iii), to the
Issuer the funds from the Subsidiary Investment Account requested pursuant to
such written notice for application by the Issuer to the specific payments
specified in such written notice.
(b) Upon the delivery by the Issuer or the Company to the Trustee of a
written notice requesting the release of proceeds from the Subsidiary Investment
Account for use of the purposes set forth in Section 15.01(b), such notice to be
accompanied by an Officer's Certificate that certifies that funds paid to the
Issuer for the Withholding Taxes shall be used solely for such purpose, the
Trustee shall be required to direct the Collateral Agent, and to provide any
instructions or authorizations required by the Collateral Agent pursuant to the
terms of the Collateral Agency Agreement, to release, in the case of Section
15.01(b)(i), to the Trustee the funds from the Subsidiary Investment Account
requested pursuant to such written notice for application by the Trustee as
specifically provided in Section 15.01(b).
Section 15.03 Waiver of Overdue Interest. Each Holder hereby waives its
right (if any) to overdue interest or interest on interest (if any) with respect
to the June 15, 1998 interest payment.
Section 15.04 Notation on Securities. Upon the First Supplemental Indenture
Effective Date and subsequent release and use of proceeds in the Subsidiary
Investment Account in accordance with the terms and conditions stated in Section
15.01(b) and 15.02(b) herein (including redemption of Securities), the Trustee,
pursuant to Section 9.05, shall request the holder of the Global Security to
deliver it to the Trustee, who shall place an appropriate notation on the
Security regarding the changed terms and return it to the Holders."
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SECTION 1.9 Article 16. There shall be added to the Indenture a new Article
16 to read in its entirety as follows:
"Article 16
Issuance of Additional Securities
Section 16.01 Procedures for Issuance of Additional Securities. The Issuer
shall deliver written irrevocable notice to the Trustee at least ten (10) and
not more than (30) Business Days prior to the date of issuance of Additional
Securities. Such notice shall be accompanied by a written order of the Issuer,
signed by an Officer of the Issuer, to the Trustee to authenticate and deliver
the Additional Securities in the amount and on the date specified in such order
and otherwise in accordance with the applicable provisions of Article 2.
Section 16.02 Conditions Precedent to Issuance of Additional
Securities. The option of the Issuer to issue Additional Securities for interest
payments due on December 15, 1998, June 15, 1999 and December 15, 1999 may be
exercised only if prior to December 1, 1998 the Trustee has received an Opinion
of Counsel from counsel to the Company substantially to the effect that (i) the
Additional Securities to be issued and each of the Security Documents (and any
amendments thereto) have been duly authorized, executed and delivered by the
Company and constitute valid and legally binding obligations against the Issuer
and the Company in accordance with their terms; (ii) each of the Security
Documents constitutes a valid and perfected (meaning enforceable against third
parties) security interest in the secured property to which it is expressed to
relate; (iii) the Additional Securities are entitled to the benefit of the
security interests created by the Security Documents; (iv) no additional
consents or approvals are necessary in connection with the issuance of the
Additional Securities nor is such issuance in contravention of any law, decree
or governmental order; and (v) the Additional Securities are entitled to the
benefit of the Indenture.
Section 16.03 Authorization. The Trustee is authorized (i) to enter into
any amendments, modifications or changes to the Collateral Agency Agreement that
may be necessary to give effect to the provisions of the First Supplemental
Indenture; and (ii) to instruct the Collateral Agent to enter into any
amendments, modifications or changes in the Security Documents necessary for the
Additional Securities to be entitled to the benefit of the security interests
created thereunder and otherwise to give effect to the provisions of the First
Supplemental Indenture."
SECTION 1.10. Section 1 of Exhibit A to the Indenture -- Form of Reverse
Side of Note due 2007, Interest. Section 1 of Exhibit A to the Indenture is
hereby amended to read in its entirety as follows:
"POLYTAMA INTERNATIONAL FINANCE B.V., a closed company with limited
liability duly organized and existing under the laws of The Netherlands, with
its statutory seat in Rotterdam, The Netherlands (herein referred to as the
"Issuer," which term includes its successors and assigns under the Indenture
hereinafter referred to), for value received, hereby promises to pay interest
(as set forth in the Indenture, such terms include Additional Amounts) on the
principal amount of this Security at the rate per annum shown above. The Issuer
will pay interest semiannually on June 15 and December 15 of each year. For
interest payments due on December 15, 1998 and June 15, 1999, the Issuer may, at
its option and subject to Section 16 of the Indenture, make interest payments
through the issuance of Additional Securities for the pro rata benefit of the
registered Holders of the Securities at the close of business on June 1 or
December 1 next preceding interest payment date, in an aggregate principal
amount equal to the amount of the interest that would be payable on such
interest payment dates at the rate per annum shown above. For the interest
payment due on December 15, 1999, the Issuer may, at its option, make this
interest payment through the issuance of Additional Securities in an aggregate
principal amount equal to the amount of the interest that would be payable on
such interest payment date, provided that if the Issuer elects this option
interest payable on such interest payment date shall be calculated at a rate per
annum of 13% for the period commencing on June 15, 1999 and ending on December
15, 1999. Interest on the Securities will accrue from the most recent date to
which interest has been paid or duly provided for or, if no interest has been
paid or duly provided for, from June 13, 1997 (or the date of issue in the case
of Additional Securities). Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Issuer shall pay interest on overdue principal
at the rate borne
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by this Security plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful. If the Issuer
elects to make an interest payment through the issuance of Additional Securities
as provided above, it must provide the Trustee and the Holders with irrevocable
notice of such election at least ten (10) and not more than (30) Business Days
prior to the date for such interest payment."
SECTION 1.11. Section 2 of Exhibit A to the Indenture -- Form of Reverse
Side of Note due 2007, Method of Payment. 2 of Exhibit A to the Indenture is
hereby amended to read in its entirety as follows:
"The Issuer will pay interest on the Securities (except defaulted interest)
to the Persons who are registered holders of the Securities at the close of
business on the June 1 or December 1 next preceding the interest payment date
even if the Securities are canceled after the record date and on or before the
Interest Payment Date. The Issuer will pay principal and, except as provided in
Section 1, interest in money of the United States of America that, at the time
of payment, is legal tender for payment of public and private debts. However,
the Issuer may pay principal and, except as provided in Section 1, interest by
check payable in such money. Payment of this Security will be made upon
surrender or presentation of this Security to a Paying Agent. However, at the
option of the Issuer, it may mail an interest check to a Holder's registered
address."
ARTICLE II
GENERAL PROVISIONS
SECTION 2.1. Effective Date. This First Supplemental Indenture and the
Amendments contained herein shall become effective as of the date first
above-written.
SECTION 2.2. Ratification of Indenture. Except as expressly amended by this
First Supplemental Indenture, the Indenture is in all respects hereby
acknowledged, ratified and confirmed and shall continue in full force and effect
in accordance with the terms thereof. The Indenture and the First Supplemental
Indenture shall be read and construed as one and the same instrument.
SECTION 2.3. Indemnity. The Issuer and the Company shall indemnify the
Trustee (and shall be jointly and severally liable therefor) against any and all
claims, loss, liabilities or expenses (including attorneys' fees) incurred by it
in connection with or arising out of the execution and delivery of the First
Supplemental Indenture and the performance of its duties hereunder. The Issuer
and the Company need not reimburse the Trustee for any expense, or indemnify the
Trustee against, any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence of bad faith.
SECTION 2.4. Successors. All agreements of the Issuer, the Company and the
Trustee in this First Supplemental Indenture shall bind their respective
successors and assigns.
SECTION 2.5. Governing Law. This First Supplemental Indenture 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 laws of another jurisdiction would be
required thereby.
SECTION 2.6. Severability. In case any provision of this First Supplemental
Indenture shall be deemed invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.7. Headings. The Article and Section headings in this First
Supplemental Indenture are for convenience only and shall not affect the
construction of the First Supplemental Indenture.
SECTION 2.8. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be deemed an
original but all such counterparts shall together constitute the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first above written.
POLYTAMA INTERNATIONAL FINANCE
B.V., as Issuer,
By:
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Name:
Title:
P.T. POLYTAMA PROPINDO, as Guarantor,
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee,
By:
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Name:
Title:
Acknowledged and Consented to by:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By:
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Name:
Title:
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ANNEX B
COMPARISON OF PROVISIONS OF THE
INDENTURE AFFECTED BY THE
PROPOSED AMENDMENTS
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
Preamble to the Indenture Preamble to the Indenture
Each party agrees as follows for the Each party agrees as follows for the
benefit of the other parties and for the benefit of the other parties and for the
benefit (except as otherwise provided in benefit (except as otherwise provided in this
this Indenture) of the Holders of the Indenture) of the Holders of the Issuer's
Issuer's 11 1/4 % Guaranteed Secured Notes 11 1/4 % Guaranteed Secured Notes Due 2007
Due 2007 (the "Notes"). (the "Notes", which term shall include the
Notes as amended pursuant to the First
Supplemental Indenture and any Notes issued
thereafter in accordance with this
Indenture, as amended by the First
Supplemental Indenture).
SECTION 1.01 Definitions SECTION 1.01 Definitions
[None] "Additional Securities" means additional
Securities which may be issued after the Issue
Date pursuant to this Indenture (other than
in exchange for or in replacement of
outstanding Securities). All references
herein to "Securities" shall be deemed to
include Additional Securities.
[None] "First Supplemental Indenture" means the
First Supplemental Indenture, dated as of
, 1998, entered into by and
between the Issuer, the Company and the
Trustee.
[None] "First Supplemental Indenture Effective
Date" means the date the First Supplemental
Indenture shall have become effective in
accordance with the terms thereof.
SECTION 2.02. Execution and Authentication SECTION 2.02. Execution and Authentication.
The Trustee shall authenticate and The Trustee shall authenticate and
deliver Securities for original issue in the deliver Securities for original issue in the
aggregate principal amount of not more than aggregate principal amount of not more than
$200,000,000 pursuant to a written order of $200,000,000 (plus the amount of Additional
the Issuer signed by an officer of the Securities that may be issued pursuant to
Issuer. The order shall specify the amount the terms and conditions stated in Section
of Securities to be authenticated and the 1 -- Interest of the Form of Reverse Side of
date on which the original issue of the Note due 2007), pursuant to a written order
Securities is to be authenticated. The of the Issuer signed by an officer of the
aggregate principal amount of Securities Issuer. The order shall specify the amount
which may be outstanding at any time may not of Securities to be authenticated and the
exceed $200,000,000, except as provided in date on which the original issue of the
Section 2.07. Securities is to be authenticated. The
aggregate principal amount of Securities
which may be outstanding at any time may not
exceed $200,000,000 (plus the amount of
Additional Securities that may be issued
pursuant to the terms and conditions stated
in Section 1 -- Interest of the Form of Re-
verse Side of Note due 2007), except as
provided in Section 2.07.
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INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
SECTION 4.04. Limitation on Indebtedness SECTION 4.04. Limitation on Indebtedness
and Preferred Stock of Restricted and Preferred Stock of Restricted
Subsidiaries Subsidiaries.
(A) neither the Issuer nor the Company (A) neither the Issuer nor the Company
shall permit any Restricted Subsidiary to shall permit any Restricted Subsidiary to Incur,
Incur, directly or indirectly, any directly or indirectly, any Indebtedness or
Indebtedness or Preferred Stock; provided, Preferred Stock; provided, however, that the
however, that the Issuer may Incur In- Issuer may Incur Indebtedness pursuant to
debtedness permitted pursuant to Section the issuance of Additional Securities and as
4.03(a) or Section 4.03(b) permitted pursuant to Section 4.03(a) or
Section 4.03(b).
SECTION 4.22 Use of Proceeds SECTION 4.22 Use of Proceeds
The proceeds to the Issuer from the The proceeds to the Issuer from the sale
sale of the Securities shall be loaned by of the Securities (other than Additional
the Issuer to the Company. The Company shall Securities) shall be loaned by the Issuer to
use such proceeds as set forth in the "Use the Company. The Company shall use such
of Proceeds" section of the final prospectus proceeds as set forth in the "Use of
used in connection with the offer and sale Proceeds" section of the final prospectus
of the Securities used in connection with the offer and sale
of the Securities, provided however that,
with respect to the portion of the proceeds
that constitute the Subsidiary Investment
Collateral, as of the First Supplemental
Indenture Effective Date, the Company shall
use such proceeds solely for the purposes
and in the manner set forth in Article 15.
SECTION 10.01. Guarantee. SECTION 10.01. Guarantee.
The Company, as principal obligor and The Company, as principal obligor and
not merely as surety, irrevocably and not merely as surety, irrevocably and
unconditionally guarantees to each Holder of unconditionally guarantees to each Holder of
a Security authenticated and delivered by a Security (including each Additional
the Trustee and to the Trustee and its Security), authenticated and delivered by
successors and assigns, that: (i) principal the Trustee and to the Trustee and its
of, premium, if any, and interest on the successors and assigns that: (i) principal
Notes (including and Additional Amounts of, premium, if any, and interest on the
payable in respect thereof) will be promptly Notes (including any Additional Amounts
paid in full when due, subject to any payable in respect thereof) will be promptly
applicable grace period, whether on the paid in full when due, subject to any
relevant Stated Maturity, on an interest applicable grace period, whether on the
payment date, by acceleration, by call for relevant Stated Maturity, on an interest
redemption or upon repurchase or purchase payment date, by acceleration, by call for
pursuant to Article 3, Sections 4.07, 4.08 redemption or upon repurchase or purchase
or 4.10 or Article 11 or otherwise and pursuant to Article 3, Sections 4.07, 4.08
interest on the overdue principal and or 4.10 or Article 11 or otherwise and
premium, if any, and purchase price and interest on the overdue principal and
interest on any interest, to the extent premium, if any, and purchase price and
lawful (in each case including interest interest on any interest, to the extent
accruing on or after filing of any petition lawful (in each case including interest
in bankruptcy or reorganization relating to accruing on or after filing of any petition
the Issuer or the Company, whether or not a in bankruptcy or reorganization relating to
claim for post filing interest is allowed in the Issuer or the Company, whether or not a
such proceeding), on the Notes and all other claim for post filing interest is allowed in
amounts payable under the Notes and such proceeding), on the Notes and all other
obligations of the Issuer to the Holders or amounts payable under the Notes and
the Trustee hereunder or thereunder will be obligations of the Issuer to the Holders or
promptly paid in full or performed when the the Trustee hereunder or thereunder will be
same shall become due and payable, whether promptly paid in full or performed when the
on the relevant maturity date, upon same shall become due and payable, whether
acceleration, by call for redemption, upon on the relevant maturity date, upon
repurchase or purchase pursuant to a Change acceleration, by call for redemption, upon
of Control, any Asset Disposition or Major repurchase or purchase pursuant to a Change
Collateral Disposition, any repurchase of of Control, any Asset Disposition or Major
Notes pursuant to Article 11 or otherwise, Collateral Disposition, any repurchase of
all in accordance with the terms hereof Notes pursuant to Article 11 or otherwise,
all in
B-2
11
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
and thereof; and (ii) in case of any accordance with the terms hereof and
extension of time of payment or renewal of thereof; and (ii) in case of any extension
any Notes or of any such other obligations, of time of payment or renewal of any Notes
that the same will be promptly paid in full or of any such other obligations, that the
when due or performed in accordance with the same will be promptly paid in full when due
terms of the extension or renewal, subject or performed in accordance with the terms of
to any applicable grace period, whether at the extension or renewal, subject to any
maturity, on an interest payment date, by applicable grace period, whether at
acceleration, required repurchase or maturity, on an interest payment date, by
otherwise. All payments under this Guarantee acceleration, required repurchase or
shall be made in U.S. dollars otherwise. All payments under this Guarantee
shall be made in U.S. dollars.
SECTION 12.04 Disposition of Collateral SECTION 12.04 Disposition of Collateral
Without Trustee Consent Without Trustee Consent
(iv) withdraw money from the Subsidiary (iv) withdraw money from the Subsidiary
Investment Account in the manner and to the Investment Account pursuant to Article 15 in
extent permitted by Article 11 and Section order to make the payments permitted
4.05(b)(v) hereof and the Collateral Agency thereunder; and
Agreement in order to make investments in
the Use of Proceeds Transactions; and
ARTICLE 15 ADDITIONAL USE OF PROCEEDS ARTICLE 15 ADDITIONAL USE OF PROCEEDS
SECTION 15.01 Use of Subsidiary Investment SECTION 15.01 Use of Subsidiary Investment
Collateral Collateral
[None] Notwithstanding any other provision to
the contrary in this Indenture, the Collateral
Agency Agreement or the Security Documents,
the Company hereby agrees as of the First
Supplemental Indenture Effective Date, that
the Company shall make no further
investments in Use of Proceeds Transactions
and that the Subsidiary Investment
Collateral as of the First Supplemental
Indenture Effective Date shall be applied
solely for the purposes set forth below.
(a) Promptly upon receipt by the Trustee
of notice from the Issuer or the Company in
accordance with Section 15.02(a), the
Trustee shall direct the Collateral Agent to
transfer proceeds in the Subsidiary
Investment Account to be released and used
as follows:
(i) to pay in full to all Holders the
interest on the Securities due and payable
on June 15, 1998, but without any additional
interest as interest on overdue installments
of interest pursuant to Section 4.01 of this
Indenture, payment of which is waived;
(ii) to pay in full pursuant to Section
4.01(b) of this Indenture any Withholding
Taxes and Additional Amounts that are due
and payable in relation to the payment of
interest on the Securities due and payable
on June 15, 1998; and
(iii) to pay the fees and expenses of
professional advisors and fees and expenses
(including the fees and expenses of counsel)
of the Trustee in-
B-3
12
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
curred in connection with the preparation of
the First Supplemental Indenture among the
Company, the Issuer and the Trustee, the
solicitation of consents in connection
therewith and the preparation of the
Company's annual report filed with the SEC
on Form 20-F for the year ended December 31,
1997, not to exceed the aggregate amount of
US$500,000.
(b) The balance of the proceeds in the
Subsidiary Investment Account that have not
been used pursuant to (a) above shall be
released and used to redeem in part the
outstanding principal amount of the
Securities at a price equal to 100% of the
principal amount thereof plus accrued and
unpaid interest to the date of such
redemption in accordance with the following:
(i) Promptly upon receipt by the Trustee
of notice from the Issuer or the Company in
accordance with Section 15.02(b), the
Trustee shall direct the Collateral Agent to
transfer the balance of the proceeds in the
Subsidiary Investment Account that have not
been used pursuant to (a) above to the
Trustee for retention in a segregated
account, which account the Trustee shall
establish and maintain at its principal
corporate trust office in New York, NY
United States of America, in the name of the
Trustee on behalf of the Holders, which
shall be kept separate from all other
accounts and assets of the Issuer and over
which the Trustee shall have sole dominion
and control, including the sole right of
withdrawal.
(ii) As promptly as possible thereafter,
the Trustee shall use the funds in the
segregated account to redeem Securities in
an amount equal to the amount in such
segregated account, less the accrued
interest owing to the redemption date and
any Withholding Taxes that are payable in
relation to such accrued interest.
(iii) Together with such redemption of
Securities, the Trustee shall use the funds
remaining in the segregated account for
payment of the accrued interest owing to the
redemption date and concurrently with such
redemption shall pay to the Issuer the
amount of such Withholding Taxes.
(iv) Securities shall be redeemed on a
pro rata basis and the Trustee shall notify in
writing the Company and the Issuer of the
Securities or portions thereof to be
redeemed, provided that, the Securities and
any portions thereof redeemed shall be in
denominations of US$1000 or whole multiples
thereof.
B-4
13
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
SECTION 15.02 Release of Funds from SECTION 15.02 Release of Funds from
Subsidiary Investment Account Subsidiary Investment Account
[None] (a) Upon the delivery by the Issuer or
the Company to the Trustee of a written notice
requesting the release of proceeds from the
Subsidiary Investment Account for use for
any of the purposes set forth in Section
15.01(a), such notice to be accompanied by
an Officer's Certificate that (i) specifies
the amount of funds required and the
specific payments towards which the funds
shall be applied, and (ii) certifies that
such funds shall be used solely for the
purposes permitted under Section 15.01(a),
the Trustee shall be required to direct the
Collateral Agent, and to provide any
instructions or authorizations required by
the Collateral Agent pursuant to the terms
of the Collateral Agency Agreement, to
release, in the case of Section 15.01(a)(i),
to the Trustee the funds from the Subsidiary
Investment Account requested pursuant to
such written notice for application by the
Trustee to the specific payments specified
in such written notice and, in the case of
Section 15.01(a)(ii) or 15.01(a)(iii), to
the Issuer the funds from the Subsidiary
Investment Account requested pursuant to
such written notice for application by the
Issuer to the specific payments specified in
such written notice.
(b) Upon the delivery by the Issuer or
the Company to the Trustee of a written notice
requesting the release of proceeds from the
Subsidiary Investment Account for use of the
purposes set forth in Section 15.01(b), such
notice to be accompanied by an Officer's
Certificate that certifies that funds paid
to the Issuer for the Withholding Taxes
shall be used solely for such purpose, the
Trustee shall be required to direct the
Collateral Agent, and to provide any
instructions or authorizations required by
the Collateral Agent pursuant to the terms
of the Collateral Agency Agreement, to re-
lease, in the case of Section 15.01(b)(i),
to the Trustee the funds from the Subsidiary
Investment Account requested pursuant to
such written notice for application by the
Trustee as specifically provided in Section
15.01(b).
SECTION 15.03 Waiver of Overdue Interest SECTION 15.03 Waiver of Overdue Interest.
[None] Each Holder hereby waives its right (if
any) to overdue interest or interest on interest
(if any) with respect to the June 15, 1998
interest payment.
SECTION 15.04 Notation on Securities SECTION 15.04 Notation on Securities.
[None] Upon the First Supplemental Indenture Ef-
fective Date and subsequent release and use of
proceeds in the Subsidiary Investment
Account in accordance with the terms and
conditions stated in
B-5
14
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
Section 15.01(b) and 15.02 herein (including
redemption of Securities), the Trustee,
pursuant to Section 9.05, shall request the
holder of the Global Security to deliver it
to the Trustee, who shall place an
appropriate notation on the Security
regarding the changed terms and return it to
the Holders.
ARTICLE 16 ISSUANCE OF ADDITIONAL SECURITIES ARTICLE 16 ISSUANCE OF ADDITIONAL SECURITIES
SECTION 16.01 Procedures for Issuance of SECTION 16.01 Procedures for Issuance of
Additional Securities Additional Securities.
[None] The Issuer shall deliver written irrevo-
cable notice to the Trustee at least ten (10) and
not more than (30) Business Days prior to
the date of issuance of Additional
Securities. Such notice shall be accompanied
by a written order of the Issuer, signed by
an Officer of the Issuer, to the Trustee to
authenticate and deliver the Additional
Securities in the amount and on the date
specified in such order and otherwise in
accordance with the applicable provisions of
Article 2.
SECTION 16.02 Conditions Precedent to SECTION 16.02 Conditions Precedent to
Issuance of Additional Securities Issuance of Additional Securities.
[None] The option of the Issuer to issue Addi-
tional Securities for interest payments due on
December 15, 1998, June 15, 1999 and
December 15, 1999 may be exercised only if
prior to December 1, 1998 the Trustee has
received an Opinion of Counsel from counsel
to the Company substantially to the effect
that (i) the Additional Securities to be
issued and each of the Security Documents
(and any amendments thereto) have been duly
authorized, executed and delivered by the
Company and constitute valid and legally
binding obligations against the Issuer and
the Company in accordance with their terms;
(ii) each of the Security Documents
constitutes a valid and perfected (meaning
enforceable against third parties) security
interest in the secured property to which it
is expressed to relate; (iii) the Additional
Securities are entitled to the benefit of
the security interest created by the
Security Documents; (iv) no additional
consents or approvals are necessary nor is
the issuance of the Additional Securities in
contravention of any law, decree or
governmental order; and (v) the Additional
Securities are entitled to the benefit of
the Indenture.
SECTION 16.03 Authorization SECTION 16.03 Authorization.
[None] The Trustee is authorized (i) to enter
into any amendments, modifications or changes
to the Collateral Agency Agreement that may be
necessary to give effect to the provisions
of the First Supplemental Indenture; and
(ii) to instruct the Collateral Agent to
enter into any amendments, modifications or
changes necessary to give effect to the
provisions of the First Supplemental
Indenture.
B-6
15
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
Section 1 of Exhibit A to the Section 1 of Exhibit A to the
Indenture -- Form of Reverse Side of Note Indenture -- Form of Reverse Side of Note
due 2007, Interest due 2007, Interest
POLYTAMA INTERNATIONAL FINANCE B.V., a POLYTAMA INTERNATIONAL FINANCE B.V., a
closed company with limited liability duly closed company with limited liability duly
organized and existing under the laws of The organized and existing under the laws of The
Netherlands, with its statutory seat in Netherlands, with its statutory seat in
Rotterdam, The Netherlands (herein referred Rotterdam, The Netherlands (herein referred
to as the "Issuer," which term includes its to as the "Issuer," which term includes its
successors and assigns under the Indenture successors and assigns under the Indenture
hereinafter referred to), for value hereinafter referred to), for value
received, hereby promises to pay interest received, hereby promises to pay interest
(as set forth in the Indenture, such terms (as set forth in the Indenture, such terms
include Additional Amounts) on the principal include Additional Amounts) on the principal
amount of this Security at the rate per amount of this Security at the rate per
annum shown above. The Issuer will pay annum shown above. The Issuer will pay
interest semiannually on June 15 and interest semiannually on June 15 and
December 15 of each year. Interest on the December 15 of each year. For interest
Securities will accrue from the most recent payments due on December 15, 1998 and June
date to which interest has been paid or duly 15, 1999, the Issuer may, at its option and
provided for or, if no interest has been subject to Section 16 of the Indenture, make
paid or duly provided for, from June 13, interest payments through the issuance of
1997. Interest will be computed on the basis Additional Securities for the pro rata
of a 360-day year of twelve 30-day months. benefit of the registered Holders of the
The Issuer shall pay interest on overdue Securities at the close of business on June
principal at the rate borne by this Security 1 or December 1 next preceding interest
plus 1% per annum, and it shall pay interest payment date, in an aggregate principal
on overdue installments of interest at the amount equal to the amount of the interest
same rate to the extent lawful. that would be payable on such interest
payment dates at the rate per annum shown
above. For the interest payment due on
December 15, 1999, the Issuer may, at its
option, make this interest payment through
the issuance of Additional Securities in an
aggregate principal amount equal to the
amount of the interest that would be payable
on such interest payment date, provided that
if the Issuer elects this option interest
payable on such interest payment date shall
be calculated at a rate per annum of 13% for
the period commencing on June 15, 1999 and
ending on December 15, 1999. Interest on the
Securities will accrue from the most recent
date to which interest has been paid or duly
provided for or, if no interest has been
paid or duly provided for, from June 13,
1997 (or the date of issue in the case of
Additional Securities). Interest will be
computed on the basis of a 360-day year of
twelve 30-day months. The Issuer shall pay
interest on overdue principal at the rate
borne by this Security plus 1% per annum,
and it shall pay interest on overdue
installments of interest at the same rate to
the extent lawful. If the Issuer elects to
make an interest payment through the
issuance of Additional Securities as
provided above, it must provide the Trustee
and the Holders with irrevocable notice of
such election at least ten (10) and not more
than (30) Business Days prior to the date
for such interest payment.
Section 2 of Exhibit A to the Section 2 of Exhibit A to the
Indenture -- Form of Reverse Side of Note Indenture -- Form of Reverse Side of Note
due 2007, Method of Payment due 2007, Method of Payment
B-7
16
INDENTURE PROVISIONS INDENTURE PROVISIONS
AS CURRENTLY IN EFFECT AS PROPOSED TO BE AMENDED
The Issuer will pay interest on the The Issuer will pay interest on the
Securities (except defaulted interest) to Securities (except defaulted interest) to
the Persons who are registered holders of the Persons who are registered holders of
the Securities at the close of business on the Securities at the close of business on
the June 1 or December 1 next preceding the the June 1 or December 1 next preceding the
interest payment date even if the Securities interest payment date even if the Securities
are canceled after the record date and on or are canceled after the record date and on or
before the Interest Payment Date. The Issuer before the Interest Payment Date. The Issuer
will pay principal and, interest in money of will pay principal and, except as provided
the United States of America that, at the in Section 1, interest in money of the
time of payment, is legal tender for payment United States of America that, at the time
of public and private debts. However, the of payment, is legal tender for payment of
Issuer may pay principal and, and interest public and private debts. However, the
by check payable in such money. Payment of Issuer may pay principal and, except as
this Security will be made upon surrender or provided in Section 1, interest by check
presentation of this Security to a Paying payable in such money. Payment of this
Agent. However, at the option of the Issuer, Security will be made upon surrender or
it may mail an interest check to a Holder's presentation of this Security to a Paying
registered address. Agent. However, at the option of the Issuer,
it may mail an interest check to a Holder's
registered address.
B-8
