- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Amendment No. 4
to
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
and
Amendment No. 4
to
SCHEDULE 13D
Under the Securities Exchange Act of 1934
@ ENTERTAINMENT, INC.
(Name of Subject Company)
UNITEDGLOBALCOM, INC.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
BISON ACQUISITION CORP.
(Bidders)
Common Stock, par value $.01 per share
(Title of Class of Securities)
045920105
(CUSIP Number of Class of Securities)
Anton H.E. van Voskuijlen
United Pan-Europe Communications N.V.
Fred. Roeskestraat 123
P.O. Box 74763
1070 BT Amsterdam, The Netherlands
(31) 20-7789840
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Bidders)
Copies to:
William F. Wynne, Jr., Esq. Michelle L. Keist, Esq.
White & Case LLP UnitedGlobalCom, Inc.
1155 Avenue of the Americas 4643 South Ulster Street
New York, New York 10036 Suite 1300
(212) 819-8200 Denver, Colorado 80237
(303) 770-4001
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<PAGE>
This Amendment No. 4 amends and supplements the Schedule 14D-1 and Schedule
13D filed on June 8, 1999, as amended, relating to the offer by Bison
Acquisition Corp., a Delaware corporation (the "Purchaser") and a wholly owned
subsidiary of United Pan-Europe Communications N.V., a public company with
limited liability incorporated under the laws of The Netherlands ("Parent"), to
purchase all of the issued and outstanding shares of common stock, par value
$0.01 per share (the "Common Stock"), of @ Entertainment, Inc., a Delaware
corporation (the "Company"), at a price of $19.00 per share (the "Offer Price"),
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated June 8, 1999 (the
"Offer to Purchase"), and in the related Letter of Transmittal.
Item 4. Source and Amount of Funds or Other Consideration.
Item 4 is hereby amended and supplemented as follows:
On July 30, 1999, Parent issued a press release announcing that it has
completed its $1.5 billion bond offering. Such press release and the indentures
governing the notes issued in such offering are attached as exhibits hereto and
incorporated herein by reference.
At the close of trading in New York on Thursday, July 29, 1999, 30,119,315
shares of Common Stock of the Company had been validly tendered in connection
with the offer comprising approximately 88.0% (or approximately 64.7% on a fully
diluted basis) of the Common Stock of the Company.
Item 11. Materials to be Filed as Exhibits.
The following is hereby added as an exhibit:
EX-99.1 Exhibit (a)(11) Press Release dated July 30, 1999.
EX-99.2 Exhibit (c)(6) Note Indenture, dated as of July 30, 1999 between
Parent and Citibank N.A., as trustee.
EX-99.3 Exhibit (c)(7) Note Indenture, dated as of July 30, 1999 between
Parent and Citibank, N.A., as trustee.
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 30, 1999 UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Anton H. E. van Voskuijlen
----------------------------------
Name: Anton H. E. van Voskuijlen
Title: Managing Director
Dated: July 30, 1999 BISON ACQUISITION CORP.
By: /s/ Anton H.E. van Voskuijlen
----------------------------------
Name: Anton H.E. van Voskuijlen
Title: Vice President
Dated: July 30, 1999 UNITEDGLOBALCOM, INC., (FORMERLY
UNITED INTERNATIONAL HOLDINGS, INC.)
By: /s/ Ellen P. Spangler
----------------------------------
Name: Ellen P. Spangler
Title: Senior Vice President
Exhibit (a) (11)
United Pan Europe Communications NV (ticker: UPCOY,
exchange: Nasdaq) News Release - Friday, July 30, 1999
UPC FINALISES EUROPE'S LARGEST HIGH YIELD BOND OFFERING
Amsterdam, The Netherlands, July 30/PRNewswire/--United Pan-Europe Communica-
tions (Nasdaq: UPCOY; Amsterdam: UPC) has today announced that it has completed
its $1.5 billion bond offering. The offering consists of three tranches: $800
million of ten year Senior Notes due 2009 with a 10-7/8% coupon; 300 million
Euros of ten year Senior Notes due 2009 with a coupon of 10-7/8%; and $735
million aggregate principal amount of ten year 12-1/2 Senior Discount Notes due
2009. The Senior Discount Notes were sold at 54.521% of the face amount yielding
gross proceeds of $400 million and will accrue but not pay interest until 2004.
Total gross proceeds from the sale of the Senior Notes and Senior Discount Notes
are $1.5 billion.
The $800 million of Senior Notes will be swapped into Euros to minimize UPC's
currency and interest rate exposure. The swap will yield an average rate on the
swap portion of 7.8% and a weighted average interest rate on the total $1.5
billion offering of 9.7%.
Headquartered in Amsterdam, UPC is one of the most innovative broadband
communications companies in Europe and owns and operates one of the largest
pan-European groups of broadband communication networks. UPC provides cable
television, telephony, high-speed Internet access and programming services in
twelve countries across Europe, subject to completion of the @Entertainment
acquisition, and in Israel. As of March 31st 1999, subject to closure of
recently announced acquisitions, UPC's systems passed approximately 8.8 million
homes with 5.5 million basic cable subscribers. In addition, UPC systems had
118,000 telephone access lines as well as 35,000 broadband Internet access
subscribers. UPC completed an IPO in February 1999 and its shares are traded on
the Amsterdam Stock Exchange ("UPC") and NASDAQ ("UPCOY").
UPC is a consolidated subsidiary of Denver based UnitedGlobalCom Inc.
("United"), (Nasdaq: "UCOMA"). Microsoft has an interest of approximately 7.8%
in UPC.
"Safe Harbor" Statement under the Private Securities Litigation Reform Act of
1995: Statements in this press release regarding United Pan Europe
Communications NV's business which are not historical facts are "forward-looking
statements" that involve risks and uncertainties. For a discussion of such risks
and uncertainties, which could cause actual results to differ from those
contained in the forward-looking statements, see "Risk Factors" in the Company's
Annual Report or Form 10-K for the most recently ended fiscal year.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Issuer
CITIBANK, N.A. (London Branch)
Trustee
--------------------
Indenture
Dated as of July 30, 1999
---------------------
$800,000,000 10 7/8% Senior Notes Due 2009
(E)300,000,000 10 7/8% Senior Notes Due 2009
<PAGE>
<TABLE>
TABLE OF CONTENTS
Page
<S> <C>
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................1
SECTION 1.1 Definitions. .......................................................1
SECTION 1.2 Compliance Certificates and Opinions................................39
SECTION 1.3 Form of Documents Delivered to
Trustee. ..........................................................40
SECTION 1.4 Acts of Holders.....................................................41
SECTION 1.5 Notices. ...........................................................42
SECTION 1.6 Notice to Holders; Waiver. ........................................44
SECTION 1.7 Effect of Headings and Table of Contents. .........................45
SECTION 1.8 Successors and Assigns. ...........................................45
SECTION 1.9 Separability Clause. ..............................................45
SECTION 1.10 Benefits of Indenture. .............................................45
SECTION 1.11 Governing Law. ....................................................45
SECTION 1.12 Conflict with Trust Indenture Act. ................................46
SECTION 1.13 Legal Holidays. ...................................................46
SECTION 1.14 No Personal Liability of Board Mem-
bers, Officers, Employees and Share-
holders.............................................................46
SECTION 1.15 Independence of Covenants. ........................................47
SECTION 1.16 Exhibits. .........................................................47
SECTION 1.17 Counterparts........................................................47
SECTION 1.18 Duplicate Originals.................................................47
SECTION 1.19 Agent for Service; Submission to Juris-
diction; Waiver of Immunities.......................................47
SECTION 1.20 Judgment Currency...................................................48
ARTICLE II - SECURITY FORMS........................................................................49
SECTION 2.1 Forms Generally. ..................................................49
ARTICLE III - THE SECURITIES.......................................................................49
SECTION 3.1 Title and Terms.....................................................49
SECTION 3.2 Denominations. .....................................................50
SECTION 3.3 Execution, Authentication, Delivery and
Dating. ...........................................................51
SECTION 3.4 Temporary Securities. .............................................55
SECTION 3.5 Registration, Registration of Transfer
and Exchange........................................................55
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities..........................................................57
SECTION 3.7 Payment of Interest; Interest Rights Pre-
served..............................................................57
SECTION 3.8 Persons Deemed Owners...............................................59
SECTION 3.9 Cancellation........................................................59
SECTION 3.10 Computation of Interest.............................................60
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers.......................................60
SECTION 3.12 Book-Entry Provisions for Global Secu-
rities, Certificated Securities.....................................60
SECTION 3.13 Transfer and Exchange of Securities.................................62
SECTION 3.14 Special Transfer Provisions.........................................73
ARTICLE IV - SATISFACTION AND DISCHARGE............................................................74
SECTION 4.1 Satisfaction and Discharge of Indenture.............................74
SECTION 4.2 Application of Trust Money..........................................75
ARTICLE V - REMEDIES...............................................................................76
SECTION 5.1 Events of Default...................................................76
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment.......................................................77
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee..............................................78
SECTION 5.4 Trustee May File Proofs of Claim....................................79
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities............................................80
SECTION 5.6 Application of Money Collected......................................80
SECTION 5.7 Limitation on Suits.................................................81
SECTION 5.8 Unconditional Right of Holders to Re-
ceive Principal, Premium and Interest...............................82
SECTION 5.9 Restoration of Rights and Remedies..................................82
SECTION 5.10 Rights and Remedies Cumulative......................................82
SECTION 5.11 Delay or Omission Not Waiver........................................82
SECTION 5.12 Control by Holders..................................................83
SECTION 5.13 Waiver of Past Defaults.............................................83
SECTION 5.14 Waiver of Stay or Extension Laws....................................83
ARTICLE VI - THE TRUSTEE...........................................................................84
SECTION 6.1 Certain Duties and Responsibilities.................................84
SECTION 6.2 Notice of Default...................................................85
SECTION 6.3 Certain Rights of Trustee...........................................85
SECTION 6.4 Trustee Not Responsible for Issuance
of Securities.......................................................87
SECTION 6.5 May Hold Securities.................................................87
SECTION 6.6 Money Held in Trust.................................................87
SECTION 6.7 Compensation and Reimbursement......................................87
SECTION 6.8 Corporate Trustee Required; Eligibility;
Conflicting Interests...............................................89
SECTION 6.9 Resignation and Removal; Appointment of
Successor...........................................................89
SECTION 6.10 Acceptance of Appointment by Succes-
sor.................................................................91
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business..............................................91
ARTICLE VII - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY ...................................92
SECTION 7.1 Disclosure of Names and Addresses of
Holders.............................................................92
SECTION 7.2 Reports by Trustee..................................................92
SECTION 7.3 Reports by Company..................................................92
ARTICLE VIII - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE...........................................................................................93
SECTION 8.1 Company May Consolidate, Etc., Only
on Certain Terms....................................................93
SECTION 8.2 Successor Substituted...............................................94
ARTICLE IX - SUPPLEMENTAL INDENTURES...............................................................94
SECTION 9.1 Indentures Without Consent of Holders...............................94
SECTION 9.2 Indentures with Consent of Holders..................................95
SECTION 9.3 Execution of Indenture..............................................96
SECTION 9.4 Effect of Indentures................................................97
SECTION 9.5 Conformity with Trust Indenture Act.................................97
SECTION 9.6 Reference in Securities to Indentures...............................97
SECTION 9.7 Notice of Indentures................................................97
ARTICLE X - COVENANTS..............................................................................97
SECTION 10.1 Payment of Principal, Premium, if Any,
and Interest........................................................97
SECTION 10.2 Maintenance of Office or Agency.....................................98
SECTION 10.3 Money for Security Payments to Be
Held in Trust.......................................................99
SECTION 10.4 Corporate Existence................................................100
SECTION 10.5 Payment of Taxes and Other Claims..................................101
SECTION 10.6 Maintenance of Properties..........................................101
SECTION 10.7 Insurance..........................................................101
SECTION 10.8 Provision of Financial Statements..................................102
SECTION 10.9 Statement by Officers as to Default................................102
SECTION 10.10 Purchase of Securities upon Change of
Control............................................................103
SECTION 10.11 Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital
Stock..............................................................107
SECTION 10.12 Limitation on Restricted Payments..................................109
SECTION 10.13 Limitation on Dividend and Other Pay-
ment Restrictions Affecting Subsidiar-
ies................................................................112
SECTION 10.14 Limitation on Liens Securing Indebted-
ness...............................................................114
SECTION 10.15 Limitation on Issuances of Guarantees
by Subsidiaries....................................................114
SECTION 10.16 Limitation on Sale of Assets and Subsidiary
Stock..............................................................114
SECTION 10.17 Limitation on Transactions with Affili-
ates...............................................................119
SECTION 10.18 Additional Amounts.................................................120
SECTION 10.19 Waiver of Stay, Extension or Usury Laws............................122
ARTICLE XI - REDEMPTION OF SECURITIES.............................................................123
SECTION 11.1 Right of Redemption................................................123
SECTION 11.2 Applicability of Article...........................................125
SECTION 11.3 Election to Redeem; Notice to Trustee..............................125
SECTION 11.4 Selection by Trustee of Securities to Be
Redeemed...........................................................125
SECTION 11.5 Notice of Redemption...............................................125
SECTION 11.6 Deposit of Redemption Price........................................126
SECTION 11.7 Securities Payable on Redemption Date..............................126
SECTION 11.8 Securities Redeemed in Part........................................127
ARTICLE XII - DEFEASANCE AND COVENANT DEFEASANCE..................................................127
SECTION 12.1 Company's Option to Effect Defeasance
or Covenant Defeasance.............................................127
SECTION 12.2 Defeasance and Discharge...........................................127
SECTION 12.3 Covenant Defeasance................................................128
SECTION 12.4 Conditions to Defeasance or Covenant
Defeasance.........................................................128
SECTION 12.5 Deposited Money and U.S. Government
Securities to Be Held in Trust; Other
Miscellaneous Provisions...........................................130
SECTION 12.6 Reinstatement......................................................131
EXHIBIT A.........................................................................................A-1
EXHIBIT B.........................................................................................B-1
EXHIBIT C.........................................................................................C-1
EXHIBIT D.........................................................................................D-1
EXHIBIT E.........................................................................................E-1
EXHIBIT F.........................................................................................F-1
EXHIBIT G.........................................................................................G-1
EXHIBIT H.........................................................................................H-1
EXHIBIT I.........................................................................................I-1
</TABLE>
<PAGE>
INDENTURE, dated as of July 30, 1999 by and between United Pan- Europe
Communications N.V., a public limited liability company organized and existing
under the laws of The Netherlands (herein called the "Company"), having its
principal office at Fred. Roeskestraat 123, 1076 EE Amsterdam, The Netherlands,
and Citibank, N.A. (London Branch), as Trustee (herein called the "Trustee").
Each party agreed as follows for the benefit of the other party and for the
equal and rateable benefit of the Holders (as defined below) of the Company's
107/8 % Senior Notes due 2009 denominated in U.S. Dollars and 107/8% Senior
Notes due 2009 denominated in Euros:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the SEC adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with "GAAP" as defined in this section
1.1;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section, paragraph or other subdivision; and
(e) unless otherwise indicated, references to Articles, Sections,
paragraphs or other subdivisions are references to such Articles, Sections,
paragraphs or other subdivisions of this Indenture.
"Acceleration Notice" has the meaning set forth in Section 5.2.
"Acquired Indebtedness" means Indebtedness (including Disqualified
Capital Stock) of any Person existing at the time such Person becomes a
Subsidiary of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any Person or
all or substantially all the assets of any Person by any other Person, whether
by purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.18.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that with respect to ownership interest in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to constitute
control.
"Agent Member" means, with respect to any Depositary, any member of,
or participant in, such Depositary.
"Applicable Procedures" has the meaning set forth in Section
3.13(b)(ii).
"Annualized Consolidated EBITDA" means Consolidated EBITDA for the
Reference Period multiplied by four.
"Asset Acquisition" means (i) an Investment or capital contribution
(by means of transfers of cash or other property to others or payments for
property or services of the account or use of others, or otherwise) by the
Company or any Subsidiary in any other Person, or any acquisition or purchase of
Capital Stock of another Person by the Company or any Subsidiary, or (ii) an
acquisition by the Company or any Subsidiary of the property and assets (other
than Capital Stock) of any Person other than the Company or any Subsidiary which
constitute substantially all of a division, operating unit or line of business
of such Person or which is otherwise outside the ordinary course of business.
"Asset Sale" has the meaning set forth in Section 10.16.
"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (1) the sum of the
products (a) of the number of years from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (2) the sum of all such principal (or redemption)
payments.
"Beneficial Owner" or "beneficial owner" for purposes of the
definition of "Change of Control" and "Affiliate" has the meaning attributed to
it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Board Resolution" means a copy of a resolution certified by a
managing director or other authorized officer, assistant officer or
representative of the Company to have been duly adopted by the Supervisory Board
of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
and Amsterdam, The Netherlands are authorized or obligated by law or executive
order to close.
"Capital Contribution" means any contribution to the equity of the
Company from a direct or indirect parent of the Company for which no
consideration other than the issuance of Qualified Capital Stock is paid.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that Corporation.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or insured by (i)
the United States of America or any agency or instrumentality thereof or
(ii) any member of the European Economic Area or Switzerland, or any,
agency or instrumentality thereof provided that such country, agency or
instrumentality has a credit rating at least equal to that of the United
States of America (provided that, in each case, the full faith and credit
of such respective nation is pledged in support thereof), or
(2) time deposits and certificates of deposit and commercial paper issued
by the parent Corporation of any domestic (United States) commercial bank
of recognized standing having capital and surplus in excess of $500,000,000
(or the foreign currency equivalent thereof), or
(3) commercial paper issued by others rated at least A-2 or the equivalent
thereof by Standard & Poor's Corporation or at least P-2 or the equivalent
thereof by Moody's Investors Service, Inc.
and in the case of each of (1), (2), and (3) maturing within one year after
the date of acquisition, or
(4) Euro or Dollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding
six months, and overnight bank deposits, in each case with any domestic
(United States) commercial bank (including the Trustee) having capital and
surplus in excess of $500,000,000 (or the foreign currency equivalent
thereof) and a Keefe Bank Watch Rating of "B" or better; provided, in the
case of (1) through (4), that with respect to any non-domestic Person, Cash
Equivalents shall also mean those investments that are comparable to
clauses (ii) and (iv) above in such Person's country of organization or
country where it conducts business operations.
"Cedelbank" means Cedelbank.
"Certificated Security" means any certificated Security in fully
registered definitive form.
"Change of Control" means any merger or consolidation of the Company
with or into any Person or any sale, transfer or other conveyance, whether
direct or indirect, of all or substantially all of the Company's assets, on a
Consolidated basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction(s), either
(A) any "person" or "group" (other than the Parent or any of the
Principals) is or becomes the "beneficial owner", directly or indirectly, of
more than 35% of the total voting power of all classes of the Company's
securities in the aggregate normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee(s) or
surviving entity or entities and such "person" or "group" beneficially owns
(after giving effect to such transaction) a greater percent age of the total
voting power than is at that time beneficially owned by Parent and the
Principals (in the aggregate) and none of the Parent nor any of the Principals
has the right or ability by voting power, contract or otherwise to elect or
nominate for elections a majority of the Company's Supervisory Board, or
(B) the Continuing Directors cease for any reason to constitute a
majority of the Supervisory Board of the Company then in office, or
(C) the Company adopts a plan of liquidation (other than a plan
of liquidation as a consequence of which (1) the Parent and the Principals (in
the aggregate) beneficially own at least the same percentage of voting power
after the consummation of such plan as before or otherwise retain the right or
ability, by voting power, to control the Person that acquires the proceeds of
such liquidation and (2) the Person that acquires the substantial majority of
the proceeds of such liquidation shall have assumed by supplemental indenture
the Company's obligations pursuant to this Indenture).
"Common Depositary" means Citivic Nominees Limited, as common
depositary for Euroclear and Cedelbank and depositary for the Euro Denominated
Securities, together with its successors in such capacity.
"Common Stock" of any Person means Capital Stock of the Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of the Person, to shares of Capital Stock of any other class of the Person.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Company by a member of the Company's management board
or its supervisory board, the Chief Executive Officer, the President or a Vice
President, and by the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or
other authorized representative of the Company and delivered to the Trustee.
"Consolidated Coverage Ratio" of any Person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis, of
(a) the aggregate amount of Consolidated EBITDA of such Person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and business permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consolidated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date (and
the application of the proceeds therefrom to the extent used to refinance or
retire other Indebtedness) shall be assumed to have occurred on the first day of
such Reference Period, and (iv) the Consolidated Fixed Charges of such Person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for the
entire period, unless such person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the
12-month period immediately following the Transaction Date) that has the effect
of fixing the interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated Invested Equity Capital" means, with respect to any
Person as of any date, the sum of the Invested Equity Capital of such Person as
of such date and, without duplication, the Invested Equity Capital of each of
its Subsidiaries as of such date. For purposes of calculating the Consolidated
Invested Equity Capital of any Person as of any date, in order to avoid
duplication, the Invested Equity Capital of a Subsidiary of such Person shall
not include any amounts that would be included in the Consolidated Invested
Equity Capital of any equity owner of such Subsidiary, to the extent that such
amounts were utilized by such equity owner prior to such date to permit the
incurrence of Indebtedness pursuant to clauses 2(iii) and (c)(3) of Section
10.11. For example, if a direct Subsidiary of the Company has Consolidated
Invested Equity Capital of $100 and incurs $225 of such Indebtedness, then a
direct or indirect Subsidiary of such Subsidiary will not be deemed to have any
Invested Equity Capital based on contributions or loans to it by such first
Subsidiary. In addition, the Invested Equity Capital of a Subsidiary of a Person
will never be considered to be greater than the Invested Equity Capital of such
Person, except as a result of contributions of Invested Equity Capital to such
Subsidiary by third parties.
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of the Subsidiaries with those of such Person, all in accordance
with GAAP; provided that "Consolidation" will not include consolidation of the
accounts of any Unrestricted Subsidiary with the accounts of such Person. The
term "Consolidated" has a correlative meaning to the foregoing.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such Person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
(1) Consolidated income tax expense,
(2) Consolidated depreciation and amortization expense,
(3) Consolidated Fixed Charges, and
(4) non-cash stock-based compensation,
less the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period; provided that Consolidated income tax expense, depreciation
and amortization of a Subsidiary that is not a Wholly Owned Subsidiary shall
only be added to the extent of the equity interest of such Person in such
Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of:
(a) interest expensed or capitalized, paid, accrued, or scheduled to
be paid or accrued (including, in accordance with the following
sentence, interest attributable to Capitalized Lease Obligations) of
such Person and its Consolidated Subsidiaries during such period,
including (1) original issue discount and non-cash interest payments
or accruals on any Indebtedness, (2) the interest portion of all
deferred payment obligations, and (3) all commissions, discounts and
other fees and charges owed with respect to bankers' acceptances and
letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such
period,
(b) the amount of dividends accrued or payable (or guaranteed) by such
Person or any of its Consolidated Subsidiaries in respect of Preferred
Stock (other than by Subsidiaries of such Person to such Person or
such Person's Wholly Owned Subsidiaries).
For purposes of this definition, (x) interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
in good faith by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any Person for any
period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a Consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
(a) all gains (but not losses) which are either extraordinary (as
determined in accordance with GAAP) or are nonrecurring (including any
gain from the sale or other disposition of assets outside the ordinary
course of business or from the issuance or sale of any capital stock),
(b) the net income, if positive, of any Person, other than a
Consolidated Subsidiary, in which such Person or any of its
Consolidated Subsidiaries has an interest, except to the extent of the
amount of any dividends or distributions actually paid in cash to such
Person or a Consolidated Subsidiary of such Person during such period,
but in any case not in excess of such Person's pro rata equity
interest share of such Person's net income for such period,
(c) the net income or loss of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition, and
(d) the net income, if positive, of any such Person's Consolidated
Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by
operation of the terms of its charter or bylaws or any other
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary
other than this Indenture.
"Consolidated Subsidiary" means, for any Person, each Subsidiary
(excluding all Unrestricted Subsidiaries) of such Person (whether now existing
or hereafter created or acquired) the financial statements of which are
Consolidated for financial statement reporting purposes with the financial
statements of such Person in accordance with GAAP.
"Consolidated Tangible Assets" of any Person means the total amount of
assets less applicable reserves and other properly deductible items which under
GAAP would be calculated on a Consolidated balance sheet of the Person and its
Subsidiaries after deducting all goodwill, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which, in each case under GAAP,
would be included on such Consolidated balance sheet.
"Continuing Director" means during any period of 12 consecutive months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Supervisory Board of the Company (together with any new
supervisory directors whose election by the shareholders was from a list of
candidates drawn up by the holder or holders of the Company's priority shares
and new supervisory directors designated in or provided for in an agreement
regarding the merger, consolidation or sale, transfer or other conveyance, of
all or substantially all of the assets of the Company or the Parent, if such
agreement was approved by a vote of such majority of supervisory directors).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 5 Carmelite Street, London EC47 0PA, except that, with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.
"Corporation" includes Corporations, associations, companies and
business trusts.
"Credit Agreement" means the loan and note issuance agreement dated
July 27, 1999 between certain Subsidiaries of the Company and Bank of American
International Limited, CIBC World Markets plc, Citibank, N.A., MeesPierson N.V.,
Paribas, The Royal Bank of Scotland plc, Toronto Dominion Bank Europe Limited
and The Toronto Dominion Bank, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as such agreement and/or related documents may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time to time whether
or not with the same agent, trustee, representative lenders or Holders, and,
subject to the proviso to the next succeeding sentence, irrespective of any
changes in the terms and conditions thereof. Without limiting the generality of
the foregoing, the term "Credit Agreement" shall include agreements in respect
of Interest Swap and Hedging Obligations with lenders party to the Credit
Agreement and shall also include any amendment, amendment and restatement,
renewal, extension, restructuring, supplement or modification to any Credit
Agreement and all refundings, refinancings and replacements of any Credit
Agreement, including any agreement:
(1) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby,
(2) adding or deleting borrowers or guarantors thereunder, so long as
borrowers and guarantors may include one or more of the Company and
its Subsidiaries and their respective successors and assigns,
(3) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder; provided that on the date such
Indebtedness is incurred it would not be prohibited by Section
10.11;or
(4) otherwise altering the terms and conditions thereof in a manner
not prohibited by the other terms of this Indenture.
"CT Corporation System" has the meaning specified in Section 1.19.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means the DTC or the Common Depositary, as the case may
be.
"Discount Notes" means the Company's $735,000,000 121/2% Senior
Discount Notes due 2009 issued pursuant to the Discount Notes Indenture.
"Discount Notes Indenture" means the Discount Notes Indenture, dated
as of July 30, 1999, between the Company and Citibank, N.A. as trustee.
"Disqualified Capital Stock" means (a) except as set forth in clause
(b), with respect to any Person, Equity Interests of such Person that, by its
terms or by the terms of any security into which it is convertible, exercisable
or exchangeable, is, or upon the happening of an event or the passage of time or
both would be, required to be redeemed or repurchased (including at the option
of the holder thereof) by such Person or any of its Subsidiaries, in whole or in
part, on or prior to 91 days following the Stated Maturity of the Securities and
(b) with respect to any Subsidiary of the Company, any Equity Interests of such
Subsidiary other than (i) any common equity with no economic preference,
privileges, or redemption or repayment provisions or (ii) preferred stock
convertible into such common equity of such Subsidiary with no payment of
dividends or liquidation preference due or payable thereon on or prior to 91
days following the Stated Maturity of the Securities.
"Dollar Denominated Securities" means the $800,000,000 107/8% Senior
Notes, together with the Exchange Dollar Denominated Securities.
"Dollars" or "$" or "U.S. Dollars" means the lawful currency of the
United States of America and, in relation to any amount to be advanced or paid
under this Indenture or the Securities, funds having immediate value.
"Dollar Paying Agent" means an office or agency of the Company where
Dollar Denominated Securities may be presented for payment.
"Dollar Registrar" means an office or agency of the Company in London,
where Dollar Denominated Securities may be presented for registration of
transfer or exchange.
"DTC" means the Depository Trust Company, its nominees and successors.
"EEA Government Obligation" means direct non-callable obligations of,
or non-callable obligations guaranteed by, any member nation of the European
Union for the payment of which obligation or guarantee the full faith and credit
of the respective nation is pledged; provided that such nation has a credit
rating at least equal to that of the highest rated member nation of the European
Economic Area.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership, participation or membership interests in, such Person.
"Equity Offering" means (i) an underwritten public offering or
floatation of ordinary shares of the Company which has been registered under the
Securities Act, or admitted to listing on the Amsterdam Stock Exchange or its
equivalent in any other European Union jurisdiction, in any case resulting in
Net Cash Proceeds to the Company of at least $100,000,000 (or its foreign
currency equivalent), or (ii) a sale of Qualified Capital Stock of the Company
to any Person which is (or a controlled Affiliate of a Person which is), engaged
principally in a Related Business, resulting in Net Cash Proceeds to the Company
of at least $100,000,000 (or its foreign currency equivalent); provided,
however, that a sale of Qualified Capital Stock of the Company to any subsidiary
of the Company or any Person that is a controlled Affiliate of the Company shall
not be an Equity Offering.
"Euro" or "(E)" means the currency adopted by those countries
participating in the third stage of European monetary union.
"Euro Denominated Securities" means the (E)300,000,000 107/8% Senior
Notes, together with the Exchange Euro Denominated Securities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"European Economic Area" means the member nations of the European
Economic Area pursuant to the Oporto Agreement on the European Economic Area
dated May 2, 1992 as amended.
"European Union" means the member nations to the third stage of
economic and monetary union pursuant to the treaty of Rome establishing the
European Community, as amended by the Treaty on European Union, signed at
Maastricht on February 7, 1992.
"Euro Paying Agent" means an office or agency of the Company where
Euro Denominated Securities may be presented for payment.
"Euro Registrar" means an office or agency of the Company where Euro
Denominated Securities may be presented for registration of transfer or
exchange.
"Event of Default" has the meaning set forth under Section 5.1.
"Event of Loss" means, with respect to any property or asset, any (1)
loss, destruction or damage of such property or asset or (2) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended (or any successor act), and the rules and regulations
thereunder (or respective successors thereto).
"Exchange Dollar Denominated Securities" means the Dollar Denominated
Securities to be issued pursuant to this Indenture in connection with the offer
to exchange Securities for Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
"Exchange Euro Denominated Securities" means the Euro Denominated
Securities to be issued pursuant to this Indenture in connection with the offer
to exchange Securities for Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
"Exchange Offer" means the exchange registered with the SEC to
exchange Initial Securities for Exchange Securities pursuant to the terms of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means an Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" means the Exchange Dollar Denominated Securities
and the Exchange Euro Denominated Securities.
"Exempted Affiliate Transaction" means (i) Restricted Payments
comprised of pro rata dividends paid in cash on any class of Equity Interests
and made in compliance with this Indenture, (ii) transactions, at arms-length
and as so set forth in a Board Resolution, between or among holders of any
Equity Interest of any Subsidiary of the Company and such Subsidiary, so long as
such holder is not otherwise an Affiliate of the Company, (iii) transactions
between or among the Company, and its Subsidiaries, (iv) the Company or any of
its Subsidiaries entering into or performing any employment agreement, stock
option agreement or other agreement relating to the terms of employment,
compensation or termination of employment in the ordinary course of business of
the Company or such Subsidiary, (v) any contract, agreement, arrangement or
transaction with any Affiliate in effect as of the Issue Date and any amendment,
waiver, variation or other modification in respect of any such contract,
agreement, arrangement or transaction so long as such amendment, waiver,
variation or other modification is not disadvantageous to the Company and its
Subsidiaries in any material respect, (vi) Restricted Payments and Investments
permitted under Section 10.12, (vii) transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms of this
Indenture which are fair to the Company and its Subsidiaries, in the reasonable
determination of the Company or Subsidiary, as the case may be, or are on terms
no less favorable to the Company or the Subsidiary than those that could be
obtained in a comparable arm's length transaction with an entity that is not an
Affiliate or Principal and is in the best interests of the Company or the
Subsidiary, and (viii) transactions with respect to network capacity or dark or
lit communications fiber capacity or telecom munications conduit between the
Company or any Subsidiary and any Unrestricted Subsidiary or other Affiliate and
joint sales and marketing pursuant to an agreement or agreements between the
Company or any Subsidiary and any Unrestricted Subsidiary or other Affiliate,
provided that in the case of this clause (viii), such agreements are on terms
that are no less favorable to the Company or the Subsidiary than those that
could be obtained in an arm's-length transaction with an entity that is not an
Affiliate or Principal and are in the best interests of the Company and the
Subsidiary entered into in the ordinary course of business.
"Existing Agreements" means (i) any and all instruments, as in effect
on the Issue Date, between the Company or any of its Subsidiaries and a
commercial lending institution or institutions, which makes borrowing of funds
available to the Company or any such Subsidiary from such institution or
institutions and (ii) any replacements of the instruments in clause (i) entered
into by the respective Subsidiary that was party to the instrument so replaced
or their respective successors and a commercial lending institution or
institutions for an amount up to the maximum amount of the instrument so
replaced.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the Issue Date, reduced to the extent such amounts are repaid.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Security" means a Regulation S Global Security (or
Unrestricted Global Security) or a Restricted Global Security.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as verb has a corresponding meaning.
"Guarantor" is defined to mean any Person obligated under a Guarantee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means, without duplication,
(a) all liabilities and obligations, contingent or otherwise, of any
Person, to the extent such liabilities and obligations would appear as
a liability upon the Consolidated balance sheet of such Person in
accordance with GAAP, (1) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (2) evidenced by bonds, notes,
debentures or similar instruments, (3) representing the balance
deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade
creditors which have remained unpaid for greater than 90 days past
their original due date) those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade
creditors;
(b) all liabilities and obligations, contingent or otherwise, of such
Person (1) evidenced by bankers' acceptances or similar instruments
issued or accepted by banks, (2) relating to any Capitalized Lease
Obligation, or (3) evidenced by a letter of credit or a reimbursement
obligation of such Person with respect to any letter of credit (other
than obligations with respect to letters of credit securing
obligations (other than obligations described in (a)(1) through (3)
above) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon);
(c) all net obligations of such Person under Interest Swap and Hedging
Obligations;
(d) all liabilities and obligations of others of the kinds described
in the preceding clauses (a), (b) or (c) that such Person has
guaranteed or provided credit support or that is otherwise its legal
liability or which are secured by any assets or property of such
Person;
(e) any and all deferrals, renewals, extensions, refinancing and
refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described
in any of the preceding clauses (a), (b), (c) or (d), or this clause
(e), whether or not between or among the same parties; and
(f) all Disqualified Capital Stock of such Person (measured at the
greater of its voluntary or involuntary maximum fixed repurchase
price, plus accrued and unpaid dividends).
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were
purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good faith
by the Supervisory Board of the Company.
The amount of any Indebtedness outstanding as of any date shall be (1)
the accreted value thereof, in the case of any Indebtedness issued
with original issue discount, but the accretion of original issue
discount in accordance with the original terms of Indebtedness issued
with an original issue discount will not be deemed to be an incurrence
and (2) the principal amount thereof, excluding any interest thereon,
in the case of any other Indebtedness.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Institutional Accredited Investor" means an institutional "Accredited
Investor", as defined in Regulation D of the Securities Act.
"Initial Purchasers" means, with respect to the Initial Securities
issued pursuant to this Indenture on the Issue Date, each of Goldman Sachs
International, Donaldson, Lufkin & Jenrette International, Morgan Stanley & Co.
International Limited, TD Securities (USA) Inc., Bank of America International
Limited, Chase Manhattan International Limited, CIBC World Markets Corp., Credit
Suisse First Boston (Europe) Limited, Merrill Lynch International and Salomon
Brothers International Limited.
"Initial Securities" means the $800,000,000 107/8% Senior Notes due
2009 and the (E)300,000,000 107/8% Senior Notes due 2009, issued under this
Indenture on the Issue Date.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Invested Equity Capital" means, with respect to any Person as of any
date, without duplication, the sum of (i) the total dollar amount contributed in
cash plus the value of all property contributed (valued at fair market value at
the time of contribution, determined in good faith by the Supervisory Board) to
such Person since the date of its creation in the form of common equity, plus,
(ii) the total dollar amount contributed in cash plus the value of all property
contributed (valued at fair market value at the time of contribution, determined
in good faith by the Supervisory Board) to such Person since the date of
creation by the holders of its common equity (and their Affiliates) in
consideration of the issuance of preferred equity or Indebtedness, on a basis
that is substantially proportionate to their common equity interests (with any
disproportionately large equity interests received by the Company or a
Subsidiary relative to their respective contributions being ignored for this
purpose), plus, (iii) the total dollar amount contributed in cash plus the value
of all property contributed (valued at fair market value at the time of
contribution, determined in good faith by the Supervisory Board) to such Person
since the date of its creation by the Company or a Wholly Owned Subsidiary of
the Company in consideration of the issuance of preferred equity or
Indebtedness, and less (iv) the value of all interest, returns in respect of
Indebtedness, dividends and other distributions (in whatever form and however
designated, valued at fair market value as determined in good faith by the
Supervisory Board) made by such Person since the date of its creation to the
holders of its common equity (and their Affiliates); provided that in no event
shall the aggregate amount of interest, dividends and other distributions made
to any holder of common equity of a Person (or its Affiliates) operate to reduce
the Invested Equity Capital of such Person by more than the total contributions
to such Person (per clauses (i) through (iii) above) by such equity holder (and
its Affiliates).
"Investment" by any Person in any other Person means (without
duplication):
(a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services,
securities or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities,
including any options or warrants, of such other Person or any
agreement to make any such acquisition;
(b) the making by such Person of any deposit with, or advance, loan or
other extension of credit to, such other Person (including the
purchase of property from another Person subject to an understanding
or agreement, contingent or otherwise, to resell such property to such
other Person) or any commitment to make any such advance, loan or
extension (but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of business);
(c) other than guarantees of Indebtedness of the Company or to the
extent permitted by Section 10.11, the entering into by such Person of
any guarantee of, or other credit support or contingent obligation
with respect to, Indebtedness or other liability of such other Person;
(d) the making of any capital contribution by such Person to such
other Person; and
(e) the designation by the Supervisory Board of the Company of any
Person to be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an amount equal
to the fair market value of the net assets of any Subsidiary (or, if
neither the Company nor any of its Subsidiaries has theretofore made
an Investment in such subsidiary, in an amount equal to the
Investments being made), at the time that such Subsidiary is
designated an Unrestricted Subsidiary, and any property transferred to
an Unrestricted Subsidiary from the Company or a Subsidiary of the
Company shall be deemed an Investment valued at its fair market value
at the time of such transfer. Investments shall be measured by the
fair market value attributed to the Investment at the time made or re
turned, as applicable.
"Issue Date" means the date of first issuance of the Initial
Securities hereunder.
"Leverage Ratio" on any date of determination (the "Transaction Date")
for any Person means the ratio, on a pro forma basis, of (a) the aggregate
amount of Indebtedness of such Person and its Subsidiaries on a Consolidated
basis to (b) the aggregate amount of Annualized Consolidated EBITDA of such
Person attributable to continuing operations and business (exclusive of amounts
attributable to operations and businesses permanently discontinued or disposed
of); provided that for purposes of calculating Annualized Consolidated EBITDA
for this definition,
(1) acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the
Transaction Date shall be assumed to have occurred on the first
day of the Reference Period,
(2) transactions giving rise to the need to calculate the Leverage
Ratio shall be assumed to have occurred on the first day of the
Reference Period,
(3) the incurrence of any Indebtedness or issuance of any
Disqualified Capital Stock during the Reference Period or
subsequent to the Reference Period and on or prior to the
Transaction Date (and the application of the proceeds therefrom
to the extent used to refinance or retire other Indebtedness)
shall be assumed to have occurred on the first day of the
Reference Period, and
(4) the Consolidated Fixed Charges of such Person attributable to
interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate
shall be computed on a pro forma basis as if the average rate in
effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire
period, unless such Person or any of its Subsidiaries is a party
to an Interest Swap or Hedging Obligation (which shall remain in
effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired. For purposes of this definition, the
sale, lease, conveyance, or other transfer by the Company or any Subsidiary of
the Company, in the ordinary course of its business and not constituting a
security interest in assets serving as collateral for any of their respective
obligations, including the granting of indefeasible rights of use or equivalent
arrangements with respect to, network capacity, communications fiber capacity or
conduit, shall not be a Lien.
"Liquidated Damages" means all liquidated damages then owing pursuant
to the Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Qualified Capital Stock and by the Company and its
Subsidiaries in respect of an Asset Sale, plus, in the case of an issuance of
Qualified Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Company that were issued for cash on or after the Issue Date, the amount of
cash originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary) expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale or sale of Qualified Capital Stock,
and, in the case of an Asset Sale only, less the amount (estimated reasonably
and in good faith by the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any of its respective
Subsidiaries in connection with such Asset Sale in the taxable year that such
sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any available operating losses and net operating loss carryovers,
tax credits and tax credit carryforwards, and similar tax attributes.
"New Acquisitions" means the acquisition by the Company or its
subsidiaries of @Entertainment, Inc., A2000 Holding N.V., Time Warner Cable
France S.A., Reseaux Cables de France S.A., Videopole S.A., Kabel Plus, a.s.,
SBS Broadcasting S.A., GelreVision N.V., SKT spol. s.r.o. and NBS Broadband
Services AB, all substantially as described in the Offering Circular (and each
such Person's respective subsidiaries).
"Non-Recourse Indebtedness" means Indebtedness of a Person to the
extent that under the terms thereof and pursuant to applicable law, no personal
recourse could be had against the Company or its Subsidiaries (giving effect to
the designations of such Person as an Unrestricted Subsidiary) for the Payment
of the principal of or interest or premium or other amounts with respect to such
Indebtedness or for any claim based on such Indebtedness and that enforcement
of obligations on such Indebtedness is limited solely to recourse against
interests in specified assets.
"Obligation" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company under the terms of the
Securities or this Indenture, including any Liquidated Damages due pursuant to
the terms of the Registration Rights Agreement.
"Offering" means the offering of the Securities by the Company.
"Offering Circular" means the offering memorandum dated July 27, 1999,
pursuant to which the Securities were offered and sold.
"Officers' Certificate" means a certificate signed by a member of the
Company's management board or its Supervisory Board, the Chief Executive Officer
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee in the form substantially similar to Exhibit F attached hereto, which
shall comply with the Indenture, except in the case of an authentication order
pursuant to Section 3.3, which must only be signed by one of the above noted
persons.
"Opinion of Counsel" means an opinion of counsel in the form
substantially similar to Exhibit G attached hereto, who may be counsel to the
Company, including an employee of the Company.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act
as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture;
(iii) Securities, except to the extent provided in Sections 12.2
and 12.3, with respect to which the Company has effected Defeasance and/or
Covenant Defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands the Securities are valid obligations of the
Company; provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any
request, demand, authorization, direction, consent, notice or waiver
hereunder, and for the purpose of making the calculations required by TIA
Section 313, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which any Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor.
"Parent" means UnitedGlobalCom, Inc. and its successor(s).
"Parent Stock Instrument" means either (a) Indebtedness (including
Disqualified Capital Stock) and Qualified Capital Stock of the Company that is
convertible or exchangeable into, at the option of the Company or any holder
thereof, or secured by, or whose value to the holder thereof is dependent upon
any shares of Parent's Capital Stock that are owned by the Company or any of its
Subsidiaries as of the Issue Date; provided that such Indebtedness and Capital
Stock of the Company shall have been issued in consideration of cash, the net
proceeds of which shall have been received by the Company or (b) the Class A
Common Stock of Parent owned by the Company or any of its Subsidiaries as of the
Issue Date or any like number of shares of Class B Common Stock of Parent issued
in exchange for the shares of the Class A Common Stock of Parent held as of the
Issue Date.
"Participants" means (i) with respect to the Dollar Denominated
Securities, institutions that have accounts with DTC or its nominee and (ii)
with respect to the Euro Denominated Securities, institutions that have accounts
with Euroclear or Cedelbank or their respective nominees.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (and premium, if
any) or interest on any Securities on behalf of the Company.
"Payment Date" means any date on which a payment of principal,
premium, if any, interest (or Liquidated Damages, if any) is due to be paid on
any of the Securities.
"Permitted Indebtedness" means that:
(a) the Company may incur Indebtedness evidenced by the Securities and
issued pursuant to this Indenture and Indebtedness evidenced by the
Discount Notes and issued pursuant to the Discount Notes Indenture up
to the amounts being issued on the original Issue Date;
(b) the Company may incur Refinancing Indebtedness with respect to any
Indebtedness (including Disqualified Capital Stock), described in
clause (a) or this clause (b) of this definition or incurred pursuant
to clause (1)(ii) of Section 10.11, and any Subsidiary may incur
Refinancing Indebtedness (including Disqualified Capital Stock),
described in this clause (b) or clause (2)(c) of Section 10.11 and the
Company and its Subsidiary may incur Refinancing Indebtedness with
respect to Indebtedness which is outstanding on the Issue Date (after
giving effect to the New Acquisitions) (less the amount of any such
Existing Indebtedness repaid on or after the Issue Date or which was
refinanced pursuant to this clause (b));
(c) the Company and its Subsidiaries may incur Indebtedness solely in
respect of bankers acceptances, letters of credit and performance and
surety bonds and completion guarantees (to the extent that such
incurrence does not result in the incurrence of any obligation to
repay any obligation relating to borrowed money of others), all in the
ordinary course of business in accordance with customary industry
practices, in amounts and for the purposes customary in the Company's
industry;
(d) the Company may incur Indebtedness to any Subsidiary, and any
Subsidiary may incur Indebtedness to any other Subsidiary or to the
Company; provided that in the case of Indebtedness of the Company,
such obligations shall be unsecured and subordinated in all respects
to the Company's obligations pursuant to the Securities and the
Discount Notes and any event that causes such Subsidiary no longer to
be a Subsidiary (including by designation to be an Unrestricted
Subsidiary) shall be deemed to be a new incurrence of such
Indebtedness, if then outstanding, subject to Section 10.11;
(e) the Company and its Subsidiaries may incur Interest Swap and
Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate or currency risk with respect to any fixed or
floating rate Indebtedness that is permitted by this Indenture to be
outstanding or any receivable or liability the payment of which is
determined by reference to a foreign currency; provided that the
notional amount of any such Interest Swap and Hedging Obligation does
not exceed the principal amount of Indebtedness to which such Interest
Swap and Hedging Obligation relates;
(f) the Company and its Subsidiaries may guarantee Indebtedness of any
of the Company's Subsidiaries, provided that the incurrence of such
Indebtedness by such Subsidiary is permitted under this Indenture; and
(g) Subsidiaries of the Company may issue preferred stock or
Indebtedness to the holders (or their Affiliates) of the common equity
of such Subsidiary on a basis that is substantially proportionate to
their common equity interests (with any disproportionately large
equity interests received by the Company or a Subsidiary of the
Company relative to their respective contributions being ignored for
this purpose).
"Permitted Investment" means:
(a) Cash Equivalents;
(b) intercompany Indebtedness to the extent permitted under clause (d)
of the definition of "Permitted Indebtedness";
(c) an Investment by the Company or a Subsidiary of the Company in a
Person engaged primarily in a Related Business if as a result of such
Investment such Person becomes a Subsidiary of the Company or is
merged with or into the Company or a Subsidiary of the Company, so
long as the surviving entity is the Company or a Subsidiary of the
Company;
(d) an Investment in any Subsidiary of the Company;
(e) other Investments in any Person or Persons engaged primarily in a
Related Business with respect to which the Company maintains the power
to influence or participate in the management of such Person by virtue
of representation on such Person's board or directors or through a
contractual relationship with such Person or its holders of Capital
Stock;
(f) other Investments in any Person or Persons engaged primarily in a
Related Business with respect to which the Supervisory Board of the
Company or of the relevant Subsidiary determines in its good faith
reasonable judgement that the Company or any of its Subsidiaries will
receive as a result of such Investment commensurate network services
benefits (including by becoming a customer, client, supplier,
purchaser or seller of goods or services of or to such Person or
Persons) from the arrangements entered into as a result of such
Investment;
(g) other Investments in any Person or Persons engaged primarily in a
Related Business; provided that, after giving pro forma effect to each
such Investment, the amount of all such Investments made solely in
reliance upon this clause (g) on and after the Issue Date that are
Outstanding at any time does not exceed in the aggregate $100,000,000
(or the foreign currency equivalent thereof measured on the date of
the making of such Investment), plus, unless such amounts shall have
been credited under clause (3) of Section 10.12 and utilized to make a
Restricted Payment, (w) the amount of the Net Cash Proceeds to the
Company from the sale of Qualified Capital Stock (other than (i) to a
Subsidiary of the Company, and (ii) to the extent applied in a
Qualified Exchange), (x) an amount equal to 50% of the Net Cash
Proceeds from Special Character Asset Sales, (y) an amount equal to
the Net Cash Proceeds to the Company or any of its Subsidiaries of any
sale of securities constituting a Parent Stock Instrument (other than
(i) to a Subsidiary of the Company, and (ii) to the extent applied in
connection with a Qualified Exchange) and (z) the amount of
Investments made pursuant to this clause (g) after the Issue Date that
are returned to the Company or any Subsidiary on or prior to the date
of any such calculation, which amount shall be the lesser of (i) the
amount of the cash invested plus the value of all noncash investments
(valued at the fair market value at the time of the Investment, deter
mined in the good faith reasonable judgment of the Company or the
relevant Subsidiary) and (ii) the amount of the Net Cash Proceeds
received plus the value of noncash proceeds received (valued at the
fair market value at the time of the return of such Investment, deter
mined in the good faith reasonable judgment of the Company or the
relevant Subsidiary);
(h) Investments made in the ordinary course of business as partial or
full payment for constructing a network relating principally to a
Related Business of the Company or any Subsidiary;
(i) Investments solely in the form and consisting of Capital Stock of
the Company (other than Disqualified Capital Stock);
(j) any Investment acquired by the Company or any of its restricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Company or any such restricted Subsidiary in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other
investment or accounts receivable or (b) as a result of a foreclosure
by the Company or any of its restricted Subsidiaries with respect to
any secured Investment or other transfer of title with respect to any
secured Investment in default;
(k) an Investment in prepaid expenses and lease, utility and workers'
compensation, performance and other similar deposits in the ordinary
course of business;
(l) loans, advances, or extensions of credit to employees, officers,
directors made in the ordinary course of business; and
(m) the net obligations of any counterparty under Interest Swap and
Hedging Obligations obtained in conformity with industry practices.
(n) Investments in SBS Broadcasting S.A. not to exceed the amounts
required to be made by the Company pursuant to the Investment
Agreement by and between, SBS Broadcasting S.A., the Company and
United International Holdings Inc., dated June 29, 1999, relating to
the acquisition by the Company of Equity Interests in SBS Broadcasting
S.A.; and
(o) Investments, directly or indirectly, in ARA Cable Services Inc. or
ARA Programming & Distribution Ltd. of Saudi Arabia, not to exceed
$75,000,000.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) Liens securing the Securities or the Discount Notes;
(c) Liens securing Indebtedness, or any agreement (including any
Equity Interest) relating to any property, asset, or business
acquired, of a Person existing at the time such Person becomes a
Subsidiary (including by designation) or is merged with or into the
Company or a Subsidiary or Liens securing Indebtedness incurred in
connection with an Acquisition, provided that such Liens were in
existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do not
extend to any other assets than those of the Person (or its
businesses) being acquired (or so designated);
(d) leases or subleases granted to other Persons in the ordinary
course of business not materially interfering with the conduct of the
business of the Company or any of its Subsidiaries or materially
detracting from the value of the relative assets of the Company or any
Subsidiary;
(e) Liens arising from precautionary Uniform Commercial Code financing
statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(f) Liens securing Refinancing Indebtedness incurred to refinance any
Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Securities than the terms of the Liens
securing such refinanced Indebtedness, provided that the In debtedness
secured is not increased and the Lien is not extended to any
additional assets or property that would not have been security for
the Indebtedness refinanced;
(g) Liens securing Indebtedness incurred under the Credit Agreement
and other Indebtedness solely of Subsidiaries of the Company incurred
in accordance with the terms of this Indenture; and
(h) Liens in favor of the Company or Liens on assets of Subsidiaries
of the Company in favor of other such Subsidiaries.
(i) Liens securing Refinancing Indebtedness that complies with the
definition of "Refinancing Indebtedness";
(j) Liens securing Acquired Indebtedness and Indebtedness assumed in
acquiring Related Assets, provided that such Liens were not put in
place in contemplation of the incurrence by the Company or its
Subsidiaries of such Indebtedness, such Liens do not extend to any
property or assets of the Company or any of its Subsidiaries other
than those acquired in connection therewith, and the Investment that
is the subject of such acquisition is a Permitted Investment;
(k) statutory liens of carriers, warehousemen, mechanics, material
men, landlords, repairmen or other like Liens arising by operation of
law in the ordinary course of business, provided that (1) the
underlying obligations are not overdue for a period of more than 30
days, or (2) such Liens are being contested in good faith and by
appropriate proceedings and adequate reserves with respect thereto are
maintained on the books of the Company in accordance with GAAP; and
(l) Liens not otherwise permitted by this Indenture in an amount not
to exceed 5% of the Company's Consolidated Tangible Assets.
"Person" means any Corporation, individual, limited liability company,
joint stock company, joint venture, partnership, limited liability partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipally or other entity.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or
stolen Security.
"Preferred Stock" means any Equity Interest of any class or classes of
a Person (however designated) which is preferred as to payments of dividends, or
as to distributions upon any liquidation or dissolution, over Equity Interests
of any other class of such Person.
"Principals" means Albert M. Carollo, Lawrence F. DeGeorge, Lawrence
J. DeGeorge, Curtis Rochelle, Marian Rochelle, Rochelle Investments, Ltd. (so
long as it is controlled by Curtis or Marian Rochelle), Gene W. Schneider, G.
Schneider Holdings, Co. and The Gene W. Schneider Family Trust (so long as each
is controlled by Gene W. Schneider or trustees appointed by him), Janet S.
Schneider, Mark L. Schneider, Apollo Cable Partners, L.P., and with respect to
any such Person means: (A) any controlling stockholder or 80% (or more) owned
Subsidiary of such Person, or with respect to each individual Person, (i) family
partnerships, Corporations or other entities holding Equity Interests in the
Company, the transferee(s) or the surviving entities or entities solely for the
benefit of such Person or any of the Persons listed in (ii), (iii), (iv) or (v)
below, (ii) such Person's spouse, (iii) such Person's children, grandchildren,
stepchildren, step grandchildren and their spouses, (iv) heirs, legatees and
devisees, and (v) trusts solely for the benefit of any of the foregoing; or (B)
any trust Corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Person and/or such other Persons
referred to in the immediately preceding clause (A).
"Pro Forma" or "pro forma" shall have the meaning set forth in
Regulation S-X of the Securities Act, unless otherwise specifically stated
herein.
"Purchase Money Indebtedness" of any Person means any Indebtedness of
such Person to any seller or other Person incurred solely to finance the
acquisition (including in the case of a Capitalized Lease Obligation, the
lease), construction, installation or improvement of any after acquired real or
personal tangible property which, in the reasonable good faith judgment of the
Supervisory Board of the Company, is directly related to a Related Business.
"Qualified Capital Stock" means any Capital Stock of the Company that
is not Disqualified Capital Stock.
"Qualified Exchange" means:
(a) any legal defeasance, redemption, retirement, repurchase or other
acquisition of Capital Stock, or Indebtedness of the Company issued on
or after the Issue Date with the Net Cash Proceeds received by the
Company from the substantially concurrent sale of its Qualified
Capital Stock or, to the extent used to retire Indebtedness (other
than Disqualified Capital Stock) of the Company issued on or after the
Issue Date, Subordinated Indebtedness of the Company,
(b) any exchange of Qualified Capital Stock of the Company for any
Capital Stock or Indebtedness of the Company issued on or after the
Issue Date, or
(c) any issuance of Subordinated Indebtedness of the Company in
exchange for Indebtedness (other than Disqualified Capital Stock) of
the Company issued on or after the Issue Date.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Period" with regard to any Person means the full fiscal
quarter ended immediately preceding any date upon which any determination is to
be made pursuant to the terms of the Securities or this Indenture, for which
Consolidated financial statements of the Company are available.
"Refinancing Indebtedness" means Indebtedness (including Disqualified
Capital Stock) (a) issued in exchange for, or the proceeds from the issuance and
sale of which are used substantially concurrently to repay, redeem, defease,
refund, refinance, discharge or otherwise retire for value, in whole or in part,
or (b) constituting an amendment, modification or supplement to, or a deferral
or renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness (including Disqualified Capital Stock and Refinancing Indebtedness)
in a principal amount (or, if issued with an original issue discount, an
original accreted value, determined in accordance with GAAP) or, in the case of
Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing and the amount of any premium paid in connection with such
Refinancing in accordance with the terms of the documents governing the
Indebtedness (including Disqualified Capital Stock and Refinancing Indebtedness)
refinanced without giving effect to any modification thereof made in connection
with or in contemplation of such refinancing) the lesser of (1) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference, of
the Indebtedness (including Disqualified Capital Stock and Refinancing
Indebtedness) so Refinanced and (2) if such Indebtedness being Refinanced was
issued with an original issue discount, the accreted value thereof (as
determined in accordance with GAAP) at the time of such Refinancing; provided
that (A) such Refinancing Indebtedness shall only be used to refinance
Outstanding Indebtedness (including Disqualified Capital Stock) of such Person
issuing such Refinancing Indebtedness (except that the Company may refinance
Outstanding Indebtedness of a Subsidiary), (B) such Refinancing Indebtedness
shall (x) not have an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refinanced at the time of such Refinancing
and (y) in all respects, be no less contractually subordinated or junior, if
applicable, to the rights of Holders of the Securities than was the Indebtedness
(including Disqualified Capital Stock) to be refinanced, (C) such Refinancing
Indebtedness shall have a final stated maturity or redemption date, as
applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital Stock) to be so
refinanced, and (D) such Refinancing Indebtedness shall be secured (if secured)
in a manner no more adverse to the Holders of the Securities than the terms of
the Liens (if any) securing such refinanced Indebtedness, including, without
limitation, the amount of Indebtedness secured shall not be increased.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof, between the Initial Purchasers and the Company.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means January 15 or July 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section
3.3.
"Related Assets" means all assets, rights, contractual or otherwise,
and properties, whether tangible or intangible, used or intended for use in
connection with a Related Business; provided that Related Assets shall not
include any Equity Interests or indebtedness of, or interests in, any Person.
"Related Business" means the business of constructing, creating,
developing, marketing or operating one or more cable, telephone or
communications systems, including, without limitation, any system for
transmitting, or providing service or product for the transmission of, voice,
video or data through transmission facilities, Internet service providers or any
business reasonably related to any of the foregoing and any business conducted
by the Company or any Subsidiary of the Company on the Issue Date; provided that
the determination of what constitutes a Related Business shall be made in good
faith by the Supervisory Board of the Company.
"Related Business Acquisition" means an Asset Acquisition of (i)
properties or assets to be used in a Related Business, (ii) of the Capital Stock
of any Person that becomes a restricted Subsidiary as a result of such Asset
Acquisition or (iii) of the Capital Stock of any Person that becomes an
Unrestricted Subsidiary as a result of such Asset Acquisition, but only if such
Asset Acquisition would be permitted pursuant to Section 10.12 or as a Permitted
Investment; provided that, in the case of clauses (ii) and (iii), such Person's
assets and properties consist principally of properties or assets that will be
used in a Related Business.
"Replacement Assets" means property or assets that will be used in a
Related Business of the Company or any Subsidiary and Equity Interests of a
Person that becomes a Subsidiary of the Company.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice-president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Dollar Denominated Global Security" means a Restricted
Global Security representing Dollar Denominated Securities.
"Restricted Euro Denominated Global Securities" means a Restricted
Global Security representing Euro Denominated Securities.
"Restricted Global Security" has the meaning specified in Section 3.3.
"Restricted Investment" means, in one or a series of related
transactions, any Investment, other than other Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or other distribution
in respect of Equity Interests of such Person or any parent or
Subsidiary of such Person,
(b) any payment on account of the purchase, redemption or other
acquisition or retirement for value of Equity Interests of such Person
or any Subsidiary or parent of such Person,
(c) other than with the proceeds from the substantially concurrent
sale of, or in exchange for, Refinancing Indebtedness, any purchase,
redemption, or other acquisition or retirement for value of, any
payment in respect of any amendment of the terms of or any defeasance
of, any Subordinated Indebtedness, directly or indirectly, by such
Person or a parent or Subsidiary of such Person prior to the scheduled
maturity, any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Indebtedness and
(d) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of a Person or the parent of such Person to the extent payable solely in shares
of Qualified Capital Stock of such Person, or (2) any dividend, distribution or
other payment to the Company or any of its Subsidiaries by the Company or any of
its Subsidiaries, or (3) any payment on account of the exchange of shares of
Common Stock of Parent for a like number of substantially identical (except with
regard to voting rights) shares of Common Stock of Parent, or (4) payments to or
for the account of the Stichting Administratiekantor UPC (the "Foundation") or
its successors of amounts related to taxes payable upon the grant of options to
certain employees in shares of the Company held by the Foundation, provided
that, for purposes of this clause (4), neither the Company nor any of its
Subsidiaries shall be liable to any Person in respect of such amounts, other
than for the payment of such amounts actually received or to be received by it,
to the Foundation.
"Restricted Period" means the period through and including the 40th
day after the later of the commencement of the Offering and the Issue Date of
the Initial Securities.
"Restricted Securities" means Restricted Global Securities and
Regulation S Global Securities.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means, collectively, the "Securities" issued under this
Indenture, including the Initial Securities and the Exchange Securities.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Special Character Asset Sale" means any Asset Sale solely consisting
of assets and property or interests therein comprising its interests in chello
broad band, UPC tv or Priority Telecom determined by the Company in its good
faith reasonable judgment.
"Stated Maturity," when used with respect to any Security or any
installment of interest on such Securities, means the date specified in the
Security as the fixed date on which any principal amount of the Security or the
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment by its terms or the terms of any document or
instrument relating thereto to the Securities, in any respect or when used in
the definitions of Restricted Payment or Qualified Exchange has a final stated
maturity on (except for the Securities) or after the Stated Maturity.
"Subsidiary," with respect to any Person, means (1) a Corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, (2) any other Person (other than a
Corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof has majority ownership interest, or (3) a
partnership in which such Person or a Subsidiary of such Person is, at the time,
a general partner and in which such Person, directly or indirectly, at the date
of determination thereof has a majority ownership interest. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be a Subsidiary of the Company
or of any Subsidiary of the Company. Unless the context requires otherwise,
Subsidiary means each direct and indirect Subsidiary of the Company.
"Supervisory Board" means, with respect to any Person, the supervisory
board of directors of such Person or any committee of the supervisory board of
directors of such Person authorized, with respect to any particular matter, to
exercise the power of the supervisory board of directors of such Person.
"TARGET" means the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) system.
"Tax" or "Taxes" means any and all present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, and all liabilities
with respect thereto, together with any penalties, interest, or additions
thereto.
"Tax Event" means that as a result of any change in or amendment to
the laws, treaties or regulations of any Taxing Authority (or any official or
administrative pronouncement or action or judicial decision) interpreting or
applying such laws, treaties or regulations where such change or amendment is
proposed and becomes effective on or after the Issue Date, in making any payment
due or to become due under the Securities, the Company is or would be required
on the next succeeding payment date to pay Additional Amounts and the payment of
such Additional Amounts cannot be avoided by the use of any reasonable measures
available to the Company.
"Taxing Authority" means any nation or government or any political
subdivision thereof or any agency or instrumentality therein and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 9.5.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Global Security" has the meaning set forth in Section
3.3(d).
"Unrestricted Securities" means an Unrestricted Global Security and
all other Securities that are not Restricted Securities, including Exchange
Dollar Denominated Securities and Exchange Euro Denominated Securities.
"Unrestricted Subsidiary" means any subsidiary of the Company that
does not own any Equity Interest of, or own or hold any Lien on any property of,
the Company or any other Subsidiary of the Company and that, at the time of
determination, shall be an Unrestricted Subsidiary (as designated by the
Supervisory Board of the Company); provided that such Subsidiary at the time of
such designation (a) has no Indebtedness other than Non-Recourse Indebtedness;
(b) is not party to any agreement, contract, arrangement or understanding with
the Company or any Subsidiary of the Company, unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) is a Person with respect to
which neither the Company nor any of its Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; and (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Subsidiaries. The Supervisory Board of the Company may
designate any Unrestricted Subsidiary to be a Subsidiary, provided that (1) no
Default or Event of Default is existing or will occur as a consequence thereof
and (2) immediately after giving effect to such designation, on a pro forma
basis, the Company could incur at least $1.00 (or its foreign currency
equivalent) of Indebtedness pursuant to the Debt Incurrence Ratio of Section
10.11. Each such designation shall be evidenced by filing with the Trustee a
certified copy of the resolution giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Wholly Owned Subsidiary" means a Subsidiary all the Equity Interests
of which (other than directors' qualifying shares) are owned by the Company or
one or more Wholly Owned Subsidiaries of the Company.
SECTION 1.2 Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 10.9(a)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be Consolidated (with
proper identification of each matter covered therein) and form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 1.5 Notices. Any notice or communication shall be sufficiently
given if in writing and delivered in person, by facsimile and confirmed by
overnight courier, or mailed by first-class mail addressed as follows:
if to the Company:
United Pan-Europe Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attention: General Counsel and Treasurer
Facsimile: 31 20 778 9841
Telephone: 31 20 778 9840
with a copy to:
Holme, Roberts & Owen LLP
Heathcoat House
20 Savile Row
London W1X 1AE
England
Attention: Paul G. Thompson
Facsimile: 44 171 287 9344
Telephone: 44 171 494 5600
if to the Trustee or Paying Agent:
Citibank, N.A.
5 Carmelite Street
London EC47 0PA
Attention: Global Agency and Trust Services
Facsimile: 44 171 508 3879
Telephone: 44 171 508 3815
if to the Luxembourg Paying and Transfer Agent:
Banque International a Luxembourg
69 route d'Esch
Luxembourg L-2953
c/o the Trustee
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture provides
for notice of any event to Holders by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. As long as the Securities are listed on the
Luxembourg Stock Exchange and notice is required by the rules of the Luxembourg
Stock Exchange, such notice shall be sufficiently given by publication of such
notice to Holders of the Securities in English will be in a leading newspaper
having general circulation in Luxembourg (which is expected to be the Luxembourg
Wort) or, if such publication is not practicable, in one other leading English
language daily newspaper with general circulation in Europe, such newspaper
being published on each business day in morning editions, whether or not it
shall be published in Saturday, Sunday or holiday editions. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.9 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture or in
the Securities, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Security Registrar and their successors
hereunder and the Holders any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.11 Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the law of the State of New York
including without limitation Section 5-1401 and 5-1402 of the New York General
Obligation Law and New York Civil Practice Laws and Rules 327(b), as applied to
contracts made and performed within the State of New York, without regard to
conflicts of law. The Company hereby irrevocably submits to the jurisdiction of
any New York State court sitting in the borough of Manhattan in the city of New
York or any federal court sitting in the borough of Manhattan in the city of New
York in respect of any suit, action or proceeding arising out of or relating to
this Indenture and the Securities, and irrevocably accepts for itself and in
respect of its property, generally and unconditionally, jurisdiction of the
aforesaid courts. The Company irrevocably waives, to the fullest extent they may
effectively do so under applicable law, trial by jury and any objection which
they may now or hereafter have to the laying of the venue of any such suit,
action or proceeding bought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Trustee or any
Holder to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Company in any other
jurisdiction.
SECTION 1.12 Conflict with Trust Indenture Act. Prior to the issuance
of the Exchange Securities or the effectiveness of the Shelf Registration
Statement, the Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. Upon the issuance of the Exchange Securities or the
effectiveness of the Shelf Registration Statement, this Indenture shall be
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions. If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 1.13 Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, or Stated Maturity or Maturity of any Security shall not
be a Business Day at a place of payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal of (or
premium, if any) or interest need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or Redemption Date or at the Stated Maturity or
Maturity; provided that no interest shall accrue solely by virtue of such delay
for the period from and after such Interest Payment Date, Redemption Date,
Stated Maturity or Maturity, as the case may be.
SECTION 1.14 No Personal Liability of Board Members, Officers,
Employees and Shareholders. No board member, director, officer, employee, agent,
authorized representative, incorporator or shareholder of the Company, as such,
shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation, solely by reason of its status as a board
member, director, officer, employee, agent, authorized representative,
incorporator or shareholder of the Company. By accepting a Security, the Trustee
on behalf of each Holder waives and releases all such liability (but only such
liability). The waiver and release are part of the consideration for issuance of
the Securities.
SECTION 1.15 Independence of Covenants. All covenants and agreements
in this Indenture shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise within the limitations
of, another covenant shall not avoid the occurrence of a Default if such action
is taken or condition exists.
SECTION 1.16 Exhibits. All exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 1.17 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 1.18 Duplicate Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 1.19 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instruments, designated and
appointed CT Corporation System, 1633 Broadway, New York, NY 10019 ("CT
Corporation System") (and any successor entity), as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to this Indenture that may be instituted in any federal or state court in the
Borough of Manhattan, City of New York, State of New York or brought under
federal or state securities laws, and represent and warrant that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding and (iii) agrees that service of
process upon CT Corporation System and written notice of said service to the
Company, in accordance with Section 1.5 shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corporation System in full force
and effect for as long as any of the Securities remain Outstanding (subject to
the limitation set forth in clause (i)); provided, however, that the Company
may, and to the extent CT Corporation System ceases to be able to be served on
the basis contemplated herein shall, by written notice to the Trustee, designate
such additional or alternative agent for service of process under this Section
1.19 that (i) maintains an office located in the Borough of Manhattan City of
New York, State of New York, and (ii) is either (x) United States counsel for
the Company or (y) a corporate service company which acts as agent for service
of process for other persons in the ordinary course of its business. Such
written notice shall identify the name of such agent for service of process and
the address of the office of such agent for service of process in the Borough of
Manhattan, City of New York, State of New York.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court of (i) any jurisdiction in which the
Company owns or leases property or assets, (ii) the United States or the State
of New York or (iii) the Netherlands or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property and assets or
this Agreement or any of the Notes or actions to enforce judgments in respect of
any thereof, the Company hereby irrevocably waives such immunity in respect of
its obligations under the above-referenced documents, to the extent permitted by
law.
SECTION 1.20 Judgment Currency. The Company hereby agrees to indemnify
the Trustee, its directors, its officers and each person, if any, who controls
the Trustee within the meaning of Section 15 of the Act or Section 20 of the Ex
change Act against any loss incurred by such person as a result of any judgment
or order being given or made against the Company for any U.S. Dollar amount due
under this Agreement and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than United States Dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States Dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which such party on the date of payment of such judgment or order is
able to purchase United States Dollars with the amount of the Judgment Currency
actually received by such party. The foregoing indemnity shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
Dollars.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. The Securities and the Trustee's
certificate of authentication with respect thereto shall be in substantially the
form set forth in Exhibit A hereto with respect to the Dollar Denominated
Securities and Exhibit B hereto with respect to the Euro Denominated Securities,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or system on which the Securities may be listed or eligible for trading or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
The Certificated Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange or system on which the Securities may be
listed or eligible for trading, all as determined by the managing directors,
officers and authorized representatives of the Company executing such
Securities, as evidenced by their execution of such Securities.
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms. The aggregate principal amount of Dollar
Denominated Securities and Euro Denominated Securities which may be
authenticated and delivered under this Indenture is initially limited to
$800,000,000 and (E)300,000,000, respectively, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6,
10.10, 10.16 or 11.8.
The Initial Securities shall be known and designated as the
"$800,000,000 107/8% Senior Notes Due 2009 and the (E)300,000,000 107/8% Senior
Notes due 2009" and the Exchange Securities shall be known as the "$800,000,000
107/8% Series B Senior Notes and the (E)300,000,000 107/8% Series B Senior
Notes". The final Stated Maturity of the Securities shall be August 1, 2009.
Interest on the Dollar Denominated Securities will accrue at a rate of 107/8%
per annum accruing from July 30, 1999 or from the most recent Interest Payment
Date to which cash interest has been paid or duly provided for, and will be
payable semiannually in arrears on February 1 and August 1 of each year,
commencing February 1, 2000, to the Holders of record on the immediately
preceding Regular Record Date. Interest on the Euro Denominated Securities will
accrue at a rate of 107/8% per annum accruing from July 30, 1999 or from the
most recent Interest Payment Date to which cash interest has been paid or duly
provided for, and will be payable semiannually in arrears on February 1 and
August 1 of each year, commencing February 1, 2000, to the Holders of record on
the immediately preceding Regular Record Date. Interest on the Securities will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
Principal of, premium, if any, and interest on the Securities will be
payable, and the Securities may be exchanged or transferred, at the office or
agency of the Company in The City of New York and in London, which, unless
otherwise provided by the Company, will be the offices of the Trustee. At the
option of the Company, interest may be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities shall be redeemable as provided in Article Eleven.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Twelve.
The Securities will be general, senior, unsecured obligations of the
Company, ranking pari passu in right of payment with each other.
SECTION 3.2 Denominations. The Securities (including any Global
Security) shall be issuable only in registered form without coupons and only in
denominations of US$1,000 in the case of the Dollar Denominated Securities or
(E)1,000 in the case of Euro Denominated Securities or any integral multiple of
US$1,000 or (E)1,000, as the case may be, above such amount. The Securities
shall not be issuable in bearer form. No service charge shall be made for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by its
Chief Executive Officer, its President, a Vice President or a managing director
(being an executive officer of the Company with due authority granted by the
management board of the Company to execute Securities) of the Company. The
signature of any of these officers or directors on the Securities may be manual
or facsimile signatures of the present or any future such authorized officer or
director and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers or directors of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. In addition, any
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Security, shall be the proper officers or
directors of the Company, although at the date of such Security or of the
execution of this Indenture any such Person was not such officer or director.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication. No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
On the Issue Date the Trustee shall authenticate Initial Securities
for original issue in the aggregate principal amount not to exceed $800,000,000
and (E)300,000,000, respectively, upon a written order of the Company in the
form of an Officer's Certificate. Such order shall specify the amount of the
Initial Securities to be authenticated and the date on which the original issue
of Initial Securities is to be authenticated. In addition, the Trustee shall
authenticate Exchange Securities for original issue in the aggregate principal
amount of up to $800,000,000 and (E)300,000,000, in each case upon a written
order of the Company in the form of an Officer's Certificate, provided that such
Exchange Securities shall be issuable only upon the valid surrender for
cancellation of Initial Securities of a like aggregate principal amount in
accordance with the Registration Rights Agreement. The Officer's Certificate
shall specify the amount of Exchange Securities to be authenticated and the date
on which the Exchange Securities are to be authenticated. Upon the written order
of the Company in the form of an Officer's Certificate, the Trustee shall
authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Company.
(b) The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(c) Restricted Global Securities. (i) The Initial Securities offered
and sold in reliance on Rule 144A shall be issued in the form of one or more
global securities (the "Restricted Global Security") in definitive, fully
registered form without interest coupons, with such applicable legends as are
provided for in Exhibit A hereto, except as otherwise permitted herein.
(ii) Each Restricted Dollar Denominated Global Security shall be
registered in the name of DTC or its nominee and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount of a Restricted Dollar Denominated Global
Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for DTC, in connection
with a corresponding decrease or increase in the aggregate principal amount
of a Dollar Denominated Security that is a Regulation S Global Security (a
"Regulation S Dollar Denominated Global Security") or a Dollar Denominated
Security that is an Unrestricted Global Security (an "Unrestricted Dollar
Denominated Global Security"), as hereinafter provided.
(iii) Each Restricted Euro Denominated Global Security shall be
registered in the name of the Common Depositary or its nominee and
deposited with the Common Depositary, on behalf of Euroclear and Cedelbank,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided for credit to the respec tive accounts of Euroclear
and Cedelbank. The aggregate principal amount of a Restricted Euro
Denominated Global Security may from time to time be increased or decreased
by adjustments made on the records of the Common Depositary, in connection
with a corresponding decrease or increase in the aggregate principal amount
of a Euro Denominated Security that is a Regulation S Global Security (a
"Regulation S Euro Denominated Global Security") or a Euro Denominated
Security that is an Unrestricted Global Security (an "Unrestricted Euro
Denominated Global Security"), as hereinafter provided.
(d) Regulation S Global Securities. (i) Initial Securities offered and
sold in reliance on Regulation S shall be initially issued in the form of one or
more Global Securities in definitive, fully registered form without interest
coupons, with such applicable legends as are provided for in Exhibit A hereto,
except as otherwise permitted herein. Until such time as the Restricted Period
shall have terminated, such Global Securities shall be referred to herein as the
"Regulation S Global Security." After such time as the Restricted Period shall
have terminated, such Regulation S Global Securities shall be referred to
herein, as the "Unrestricted Global Securities."
(ii) Each Regulation S Dollar Denominated Global Security and
Unrestricted Dollar Denominated Global Security shall be registered in the
name of DTC or its nominee and deposited with the Trustee, at its Corporate
Trust Office, as custodian for DTC, duly executed by the Company and
authenticated by the Trustee as herein after provided, for credit to the
respective accounts at DTC of the depositaries for Euroclear or Cedelbank.
The aggregate principal amount of each Regulation S Dollar Denominated
Global Security (or Unrestricted Dollar Denominated Global Security) may
from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for DTC, in connection with a
corresponding decrease or increase in the aggregate principal amount of a
Restricted Dollar Denominated Global Security, as hereinafter provided.
(iii) The Regulation S Euro Denominated Global Security and
Unrestricted Euro Denominated Global Security shall be registered in the
name of the Common Depositary or its nominee and deposited with the Common
Depositary, as custodian for Euroclear and Cedelbank, duly executed by the
Company and authenticated by the Trustee as hereinafter provided, for
credit to the respective accounts of Euroclear and Cedelbank. The aggregate
principal amount of a Regulation S Euro Denominated Global Security or an
Unrestricted Global Security may from time to time be increased or de
creased by adjustments made on the records of the Common Depositary, as
custodian for Euroclear and Cedelbank, in connection with a corresponding
decrease or increase in the aggregate principal amount of a Restricted Euro
Denominated Global Security, as hereinafter provided.
(e) The Exchange Dollar Denominated Securities and the Ex change Euro
Denominated Securities which are issued in exchange for initial Dollar
Denominated Securities and initial Euro Denominated Securities respectively
shall be issued initially in the form of one or more permanent Global Securities
in definitive, fully registered form without interest coupons, substantially in
the form set forth in Exhibit A and Exhibit B respectively, deposited with the
Trustee, as custodian for DTC in the case of the Exchange Dollar Denominated
Securities, and deposited with the Common Depositary, on behalf of Euroclear and
Cedelbank in the case of the Exchange Euro Denominated Securities, and shall
bear the applicable legends relating to Global Securities set forth in Exhibit A
and Exhibit B that are required to appear on such Securities. Exchange Dollar
Denominated Securities and Exchange Euro Denominated Securities shall constitute
Unrestricted Securities.
(f) In case the Company, pursuant to Article Eight, shall be
Consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
SECTION 3.4 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.5 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.2 being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers and exchange of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Security Registrar") for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 10.2, the Company
shall execute, the Trustee shall authenticate and deliver, and the Security
Registrar shall register, if the requirements, of such transfer are met, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like currency and aggregate
principal amount (including an exchange of Initial Securities for Exchange
Securities), upon surrender of the Securities to be exchanged at such office or
agency provided that Dollar Denominated Securities may not be exchanged for Euro
Denominated Securities, and vice versa. Whenever any Securities are so
surrendered for exchange, the Company shall execute, the Trustee shall
authenticate and deliver, and the Security Registrar shall register, the
Securities which the Holder making the exchange is entitled to receive, provided
that no exchange of Initial Securities for Exchange Securities shall occur until
an Exchange Offer Registration Statement shall have been declared effective by
the SEC (confirmed in an Officer's Certificate) and that the Initial Securities
to be exchanged for the Exchange Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6, 10.10, 10.16 or 11.8 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the selection of Securities to be redeemed under Section 11.4 and
ending at the close of business on the day of such mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If (i)
any mutilated Security is surrendered to the Trustee or (ii) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved. Interest
on any Security which is payable, and is punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 10.2; provided,
however, that each installment of interest may at the Company's option be paid
(i) by mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 3.8, to the address of such
Person as it appears in the Security Register, or (ii) by wire transfer of such
interest in immediately available funds to an account, in the case of the Dollar
Denominated Securities, located in the United States maintained by the DTC, and,
in the case of the Euro Denominated Securities, to an account located in Europe.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease to
be payable to the Holder on the Regular Record Date by virtue of having been
such Holder, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Securities (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
must be paid by the Company, at its election in each case, as provided in
paragraph (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the manner provided for in
Section 1.6, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following paragraph(2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange or system on which the Securities may be listed or eligible for
trading, and upon such notice as may be required by such exchange or system, if,
after written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners. Prior to the due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.5 and 3.7)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and none of the Company, the Trustee or any agent of
the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 3.10 Computation of Interest. Interest on the Securities shall
be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers. The Company in issuing the
Securities may use a "CUSIP" and/or "ISIN" number (if then generally in use),
and if so, the Trustee and the Common Depositary shall use "CUSIP" and/or "ISIN"
numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness or accuracy of such numbers either as printed in the
notice or on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee and the Common Depositary in writing of any change in the
"CUSIP" or "ISIN" numbers of the Securities.
SECTION 3.12 Book-Entry Provisions for Global Securities, Certificated
Securities.
Except as indicated below in this Section 3.12, the Securities shall
be represented only by Global Securities. The Global Securities shall be
deposited with a Depositary for such Securities (and shall be registered in the
name of such Depositary or its nominee). The Depositary for the Dollar
Denominated Securities shall be DTC unless the Company appoints a successor
Depositary by delivery of a Company Order to the Trustee specifying such
successor Depositary. The Depositary for the Euro Denominated Securities shall
be Citibank, N.A. unless Euroclear and Cedelbank appoint a successor Depositary
(which shall be a Common Depositary of Euroclear and Cedelbank).
All payments on a Dollar Denominated Global Security will be made to
DTC or its nominee, as the case may be, as the registered owner and Holder of
such Dollar Denominated Global Security. All payments on a Euro Denominated
Global Security will be made to the order of the Common Depositary or its
nominee, as the case may be, as the registered holder of such Euro Denominated
Global Security. In each case, the Company will be fully discharged by payment
to or to the order of such Depositary from any responsibility or liability in
respect of each amount so paid. Upon receipt of any such payment in respect of a
Dollar Denominated Global Security, DTC will credit Participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Dollar Denominated Global Security as shown on the
records of DTC. The Common Depositary will instruct the Euro Paying Agent to
make payments in respect of the Euro Denominated Securities to Euroclear and
Cedelbank in amounts proportionate to their respective beneficial interests in
the principal amount of each Euro Denominated Global Security, and Euroclear and
Cedelbank will credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of Euroclear and Cedelbank.
Unless and until it is exchanged in whole or in part for Certificated
Securities, a Global Security may not be transferred except as a whole by the
relevant Depositary or nominee thereof to another nominee of the Depositary or
to a successor of the Depositary or a nominee of such successor.
Owners of beneficial interests in Global Securities shall be entitled
or required, as the case may be, but only under the circumstances described in
this Section 3.12, to receive physical delivery of Certificated Securities.
Interests in a Global Security shall be exchangeable or transferable,
as the case may be, for Certificated Securities if (i) in the case of a Dollar
Denominated Global Security, DTC notifies the Company that it is unwilling or
unable to continue as Depositary for such Dollar Denominated Global Security, or
DTC ceases to be a "Clearing Agency" registered under the United States
Securities Exchange Act of 1934, and a successor depositary is not appointed by
the Company within one hundred and twenty (120) days, (ii) in the case of a Euro
Denominated Global Security, Euroclear and Cedelbank notify the Company that
they are unwilling or unable to continue as clearing agencies for such Euro
Denominated Global Security, (iii) in the case of a Euro Denominated Global
Security, the Common Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Euro Denominated Global Security, and
a successor Common Depositary is not appointed within one hundred and twenty
(120) days or (iv) in the case of any Global Security, an Event of Default has
occurred and is continuing with respect thereto and the owner of a beneficial
interest therein requests such exchange or transfer. Upon the occurrence of any
of the events described in the preceding sentence, the Company shall cause the
appropriate Certificated Securities to be delivered to the owners of beneficial
interests in the Global Securities or the Participants in DTC, Euroclear or
Cedelbank through which such owners hold their beneficial interest. Certificated
Securities shall be exchangeable or transferable for interests in other
Certificated Securities as described herein.
SECTION 3.13 Transfer and Exchange of Securities.
(a) Obligations with Respect to Transfers and Exchanges of Securities.
Upon surrender for registration of transfer of any Security of a series to the
appropriate Registrar, and subject to the other provisions of this Section 3.13,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of such series of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, and subject to the other provisions of
this Section 3.13, Securities of any series may be exchanged for other
Securities of such series of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
and subject to the other provisions of this Section 3.13, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and subject to the other provisions of this Section 3.13, entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or the Common
Depositary) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the appropriate Registrar and be
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection with any
registration of transfer or exchange of Securities.
(b) Transfer and Exchange of Dollar Denominated Global Securities.
Notwithstanding any provisions of this Indenture or the Securities, transfers of
a Dollar Denominated Global Security, in whole or in part, transfers and
exchanges of interests therein of the kinds described in clauses (ii), (iii) and
(iv) below and exchange of interests in Dollar Denominated Global Securities or
of other Dollar Denominated Securities as described in clause (v) below, shall
be made only in accordance with this Section 3.13(b). Transfers and exchanges
subject to this Section 3.13 shall also be subject to the other provisions of
this Indenture that are not inconsistent with this Section 3.13.
(i) General. A Dollar Denominated Global Security may not be
transferred, in whole or in part, to any Person other than DTC or a nominee
thereof or a successor to DTC or its nominee, and no such transfer to any
such other Person may be registered; provided that this clause (i) shall
not prohibit any transfer of a Dollar Denominated Security that is issued
in exchange for a Dollar Denominated Global Security but is not itself a
Dollar Denominated Global Security. No transfer of a Dollar Denominated
Security of any series to any Person shall be effective under this
Indenture or the Dollar Denominated Securities of such series unless and
until such Dollar Denominated Security has been registered in the name of
such Person. Nothing in this Section 3.13(b)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Dollar Denominated
Global Security effected in accordance with the other provisions of this
Section 3.13(b).
(ii) Restricted Global Security to Regulation S Global Security.
If the Holder of a beneficial interest in a Restricted Dollar Denominated
Global Security of any series wishes at any time to transfer such interest
to a Person who wishes to take delivery thereof in the form of a beneficial
interest in a Regulation S Dollar Denominated Global Security of such
series, such transfer may be effected, subject to the rules and procedures
of DTC, Euroclear and Cedelbank, in each case to the extent applicable (the
"Applicable Procedures"), only in accordance with the provisions of this
Section 3.13(b)(ii). Upon receipt by the Dollar Registrar of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Dollar Registrar, to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in a
Regulation S Dollar Denominated Global Security in a principal amount equal
to that of the beneficial interest in a Restricted Dollar Denominated
Global Security to be so transferred; (B) a written order given in
accordance with the Applicable Procedures containing information regarding
the account of the Agent Member (and/or the Euroclear or Cedelbank account,
as the case may be) to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest; and (C) a certificate
in substantially the form set forth in Exhibit C given by the Holder of
such beneficial interest, the principal amount of a Restricted Dollar
Denominated Global Security shall be reduced, and the principal amount of a
Regulation S Dollar Denominated Global Security shall be increased, by the
principal amount of the beneficial interest in a Restricted Dollar
Denominated Global Security to be so transferred, in each case by means of
an appropriate adjustment on the records of the Dollar Registrar, and the
Dollar Registrar shall instruct DTC or its authorized representative to
make a corresponding adjustment to its records and to credit or cause to be
credited to the account of the Person specified in such instructions (which
shall be the Agent Member for Euroclear or Cedelbank or both, as the case
may be) a beneficial interest in a Regulation S Dollar Denominated Global
Security having a principal amount equal to the amount so transferred.
(iii) Restricted Dollar Denominated Global Security to
Unrestricted Dollar Denominated Global Security. If the Holder of a
beneficial interest in a Restricted Dollar Denominated Global Security of
any series wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in an
Unrestricted Dollar Denominated Global Security of such series, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance with this Section 3.13(b)(iii). Upon receipt by the Dollar
Registrar, of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Dollar Registrar
to credit or cause to be credited to a specified Agent Member's account a
beneficial interest in an Unrestricted Dollar Denominated Global Security
in a principal amount equal to that of the beneficial interest in a
Restricted Dollar Denominated Global Security to be so transferred, (B) a
written order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member (and, if applicable,
the Euroclear or Cedelbank account, as the case may be) to be credited
with, and the account of the Agent Member to be debited for, such
beneficial interest, and (C) a certificate in substantially the form set
forth in Exhibit D given by the Holder of such beneficial interest, the
principal amount of the Restricted Dollar Denominated Global Security shall
be reduced, and the principal amount of an Unrestricted Dollar Denominated
Global Security shall be increased, by the principal amount of the
beneficial interest in a Restricted Global Dollar Denominated Security to
be so transferred, in each case by means of an appropriate adjustment on
the records of the Dollar Registrar and the Dollar Registrar shall instruct
DTC or its authorized representative to make a corresponding adjustment to
its records and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in an
Unrestricted Dollar Denominated Global Security having a principal amount
equal to the amount so transferred.
(iv) Regulation S Dollar Denominated Global Security or
Unrestricted Dollar Denominated Global Security to Restricted Dollar
Denominated Global Security. If the Holder of a beneficial interest in a
Regulation S Dollar Denominated Global Security of any series or an
Unrestricted Dollar Denominated Global Security of any series wishes at any
time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Restricted Dollar
Denominated Global Security of such series, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this Section
3.13(b)(iv). Upon receipt by the Dollar Registrar of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Dollar Registrar to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in a
Restricted Dollar Denominated Global Security in a principal amount equal
to that of the beneficial interest in a Regulation S Dollar Denominated
Global Security or an Unrestricted Dollar Denominated Global Security to be
so transferred, (B) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent Member
to be credited with, and the account of the Agent Member (and, if
applicable, the Euroclear or Cedelbank account, as the case may be) to be
debited for, such beneficial interest, and (C) with respect to a transfer
of a beneficial interest in a Regulation S Dollar Denominated Global
Security (but not an Unrestricted Dollar Denominated Global Security) to a
Person whom the transferor reasonably believes is a QIB, a certificate in
substantially the form set forth in Exhibit E given by the Holder of such
beneficial interest, the principal amount of a Restricted Dollar
Denominated Global Security shall be increased, and the principal amount of
a Regulation S Dollar Denominated Global Security or an Unrestricted Dollar
Denominated Global Security shall be reduced, by the principal amount of
the beneficial interest in a Restricted Dollar Denominated Global Security
to be so transferred, in each case by means of an appropriate adjustment on
the records of the Dollar Registrar and the Dollar Registrar shall instruct
DTC or its authorized representative to make a corresponding adjustment to
its records and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
Restricted Dollar Denominated Global Security having a principal amount
equal to the amount so transferred.
(v) Exchanges of Dollar Denominated Global Security for Dollar
Denominated Non-Global Security. In the event that a Dollar Denominated
Global Security or any portion thereof is exchanged for Dollar Denominated
Securities other than Dollar Denominated Global Securities, such other
Dollar Denominated Securities may in turn be exchanged (on transfer or
otherwise) for Securities that are not Dollar Denominated Global Securities
or for beneficial interests in a Dollar Denominated Global Security (if any
is then Outstanding) only in accordance with such procedures, which shall
be substantially consistent with the provisions of clauses (i) through (iv)
above and (vi) below (including the certification requirements intended to
insure that transfers and exchanges of beneficial interests in a Dollar
Denominated Global Security comply with Rule 144A, Rule 144 or Regulation
S, as the case may be) and any Applicable Procedures, as may be from time
to time adopted by the Company and the Trustee.
(vi) Interest in Regulation S Dollar Denominated Global Security
to be Held Through Euroclear or Cedelbank. Until the termination of the
Restricted Period with respect thereto, interests in a Regulation S Global
Security may be held only through Agent Members acting for and on behalf of
Euroclear and Cedelbank, provided that this clause (vi) shall not prohibit
any transfer in accordance with Section 3.13(b)(iv) hereof.
(c) Transfer and Exchange of Euro Denominated Global Securities.
Notwithstanding any provisions of this Indenture or the Euro Denominated
Securities, transfers of a Euro Denominated Global Security, in whole or in
part, transfers and exchanges of interests therein of the kinds described in
clauses (ii), (iii) and (iv) below and exchange of interests in Euro Denominated
Global Securities or of other Euro Denominated Securities as described in clause
(v) below, shall be made only in accordance with this Section 3.13(c). Transfers
and exchanges subject to this Section 3.13 shall also be subject to the other
provisions of this Indenture that are not inconsistent with this Section 3.13.
(i) General. A Euro Denominated Global Security may not be
transferred, in whole or in part, to any Person other than the Common
Depositary or a nominee thereof or a successor Common Depositary or its
nominee, and no such transfer to any such other Person may be registered;
provided that this clause (i) shall not prohibit any transfer of a Euro
Denominated Security that is issued in exchange for a Euro Denominated
Global Security but is not itself a Euro Denominated Global Security. No
transfer of a Euro Denominated Security to any Person shall be effective
under this Indenture or the Euro Denominated Securities unless and until
such Euro Denominated Security has been registered in the name of such
Person. Nothing in this Section 3.13(c)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Euro Denominated
Global Security effected in accordance with the other provisions of this
Section 3.13(c).
(ii) Restricted Euro Denominated Global Security to Regulation S
Euro Denominated Global Security. If the Holder of a beneficial interest in
a Restricted Euro Denominated Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Euro Denominated Global
Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with the provisions of this Section
3.13(c)(ii). Upon receipt by the Euro Registrar of (A) written instructions
given in accordance with the Applicable Procedures from Euroclear or
Cedelbank directing the Euro Registrar to credit or cause to be credited to
Euroclear's or Cedelbank's account a beneficial interest in a Regulation S
Euro Denominated Global Security in a principal amount equal to that of the
beneficial interest in a Restricted Euro Denominated Global Security to be
so transferred; (B) a written order given in accordance with the Applicable
Procedures containing information regarding the account of Euroclear or
Cedelbank to be credited with, and the account of Euroclear or Cedelbank to
be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Exhibit C given by the Holder of such
beneficial interest, the principal amount of a Restricted Euro Denominated
Global Security shall be reduced, and the principal amount of a Regulation
S Euro Denominated Global Security shall be increased, by the principal
amount of the beneficial interest in a Restricted Euro Denominated Global
Security to be so transferred, in each case by means of an appropriate
adjustment on the records of the Euro Registrar and the Euro Registrar
shall instruct the Common Depositary or its authorized representative to
make a corresponding adjustment to its records and to credit or cause to be
credited to the account of Euroclear or Cedelbank a beneficial interest in
a Regulation S Euro Denominated Global Security having a principal amount
equal to the amount so transferred.
(iii) Restricted Euro Denominated Global Security to Unrestricted
Euro Denominated Global Security. If the Holder of a beneficial interest in
a Restricted Euro Denominated Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in
the form of a beneficial interest in an Unrestricted Euro Denominated
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.13(c)(iii). Upon receipt
by the Euro Registrar of (A) written instructions given in accordance with
the Applicable Procedures from Euroclear or Cedelbank directing the Euro
Registrar to credit or cause to be credited to Euroclear's or Cedelbank's
account a beneficial interest in an Unrestricted Euro Denominated Global
Security in a principal amount equal to that of the beneficial interest in
a Restricted Euro Denominated Global Security to be so transferred, (B) a
written order given in accordance with the Applicable Procedures containing
information regarding the account of Euroclear or Cedelbank to be credited
with, and the account of Euroclear or Cedelbank to be debited for, such
beneficial interest and (C) a certificate in substantially the form set
forth in Exhibit D given by the Holder of such beneficial interest, the
principal amount of the Restricted Euro Denominated Global Security shall
be reduced, and the principal amount of an Unrestricted Euro Denominated
Global Security shall be increased, by the principal amount of the
beneficial interest in a Restricted Euro Denominated Global Security to be
so transferred, in each case by means of an appropriate adjustment on the
records of the Euro Registrar and the Euro Registrar shall instruct the
Common Depositary or its authorized representative to make a corresponding
adjustment to its records and to credit or cause to be credited to the
account of Euroclear or Cedelbank a beneficial interest in a Regulation S
Euro Denominated Global Security having a principal amount equal to the
amount so transferred.
(iv) Regulation S Euro Denominated Global Security or
Unrestricted Euro Denominated Global Security to Restricted Euro
Denominated Global Security. If the Holder of a beneficial interest in a
Regulation S Euro Denominated Global Security or an Unrestricted Euro
Denominated Global Security wishes at any time to transfer such interest to
a Person who wishes to take delivery thereof in the form of a beneficial
interest in a Restricted Euro Denominated Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in accordance
with this Section 3.13(c)(iv). Upon receipt by the Euro Registrar of (A)
written instructions given in accordance with the Applicable Procedures
from Euroclear or Cedelbank directing the Euro Registrar to credit or cause
to be credited to Euroclear's or Cedelbank's account a beneficial interest
in a Restricted Euro Denominated Global Security in a principal amount
equal to that of the beneficial interest in a Regulation S Euro Denominated
Global Security or an Unrestricted Euro Denominated Global Security to be
so transferred, (B) a written order given in accordance with the Applicable
Procedures containing information regarding the account of Euroclear or
Cedelbank to be credited with, and the account of Euroclear or Cedelbank to
be debited for, such beneficial interest and (C) with respect to a transfer
of a beneficial interest in a Regulation S Euro Denominated Global Security
(but not an Unrestricted Euro Denominated Global Security) to a Person whom
the transferor reasonably believes is a QIB, a certificate in substantially
the form set forth in Exhibit E given by the Holder of such beneficial
interest, the principal amount of a Restricted Euro Denominated Global
Security shall be increased, and the principal amount of a Regulation S
Euro Denominated Global Security or an Unrestricted Euro Denominated Global
Security shall be reduced, by the principal amount of the beneficial
interest in a Restricted Euro Denominated Global Security to be so
transferred, in each case by means of an appropriate adjustment on the
records of the Euro Registrar and the Euro Registrar shall instruct the
Common Depositary or its authorized representative to make a corresponding
adjustment to its records and to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in a Restricted Euro Denominated Global Security having a principal amount
equal to the amount so transferred.
(v) Exchanges of Euro Denominated Global Security for Euro
Denominated Non-Global Security. In the event that a Euro Denominated
Global Security or any portion thereof is ex changed for Securities other
than Euro Denominated Global Securities, such other Securities may in turn
be exchanged (on transfer or otherwise) for Securities that are not Euro
Denominated Global Securities or for beneficial interests in a Euro
Denominated Global Security (if any is then Outstanding) only in accordance
with such procedures, which shall be substantially consistent with the
provisions of clauses (i) through (iv) above and (vi) below (including the
certification requirements intended to insure that transfers and exchanges
of beneficial interests in a Euro Denominated Global Security comply with
Rule 144A, Rule 144 or Regulation S, as the case may be) and any Applicable
Procedures, as may be from time to time adopted by the Company and the
Trustee.
(vi) Interest in Euro Denominated Global Security to be Held
Through Euroclear or Cedelbank. Interests in a Euro Denominated Global
Security may be held only through Agent Members acting for and on behalf of
Euroclear and Cedelbank, provided that this clause (vi) shall not prohibit
any transfer in accordance with Section 3.13(c)(iv) hereof.
(d) Legends. Each Restricted Security and Global Security issued
hereunder shall, upon issuance, bear the legends set forth in Exhibit A hereto
that are required to be applied to such a Security and such required legends
shall not be removed from such Security except as provided in the next sentence
or Section 3.13(e). The legend required for a Restricted Security may be removed
from a Security if there is delivered to the Company and the appropriate
Registrar such satisfactory evidence, which may include an opinion of
independent counsel licensed to practice law in the State of New York, as may be
reasonably required by the Company that neither such legend nor the restrictions
on transfer set forth therein are required to ensure that transfers of such
Security will not violate the registration requirements of the Securities Act.
Upon provision of such satisfactory evidence, the Trustee, at the direction of
the Company, shall authenticate and deliver in exchange for such Security
another security or securities having an equal aggregate principal amount that
does not bear such legend. If such a legend required for a Restricted Security
has been removed from a Security as provided above, it shall not be a Restricted
Security and no other Security issued in exchange for all or any part of such
Security shall bear such legend, unless the Company has reasonable cause to
believe that such other security is a "restricted security" within the meaning
of Rule 144 and instructs the Trustee in writing to cause a legend to appear
thereon.
(e) Global Securities. The provisions of clauses (i), (ii), (iii), and
(iv) below shall apply only to Global Securities;
(i) General. Each Global Security authenticated under this
Indenture shall be registered in the name of the appropriate Depositary or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor.
(ii) Transfer to Persons other than Depositary. Notwithstanding
any other provision in this Indenture or the Securities, no Global Security
may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the
name of any person other than the appropriate Depositary or a nominee
thereof unless (A) in the case of a Dollar Denominated Global Security, DTC
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security, or DTC ceases to be a "Clearing
Agency" registered under the United States Securities Exchange Act of 1934,
and a successor depositary is not appointed by the Company within one
hundred and twenty (120) days, (B) in the case of a Euro Denominated Global
Security, Euroclear and Cedelbank notify the Company that they are
unwilling or unable to continue as clearing agencies for such Euro
Denominated Global Security, (C) in the case of a Euro Denominated Global
Security, the Common Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Euro Denominated Global
Security, and a successor Common Depositary is not appointed within one
hundred and twenty (120) days or (D) in the case of any Global Security, an
Event of Default has occurred and is continuing with respect thereto and
the owner of a beneficial interest therein requests such exchange or
transfer. Any Global Security exchanged pursuant to clause (A), (B) or (C)
above shall be so ex changed in whole and not in part and any Global
Security exchanged pursuant to clause (D) above may be exchanged in whole
or from time to time in part as directed by DTC. Any Security issued in
exchange for a Global Security or any portion thereof shall be a Global
Security, provided that any such Security so issued that is registered in
the name of a Person other than the appropriate Depositary or a nominee
thereof shall not be a Global Security.
(iii) Global Security to Certificated Security. Securities issued
in exchange for a Global Security or any portion thereof pursuant to clause
(ii) above shall be issued in definitive, fully registered form without
interest coupons, shall have an aggregate principal amount equal to that of
such Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as the
appropriate Depositary shall designate and shall bear any legends required
hereunder. Any Global Security to be exchanged in whole shall be
surrendered by the appropriate Depositary to the Security Registrar. With
regard to any Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, in the case of a Dollar
Denominated Global Security, if the Trustee is acting as custodian for DTC
or its nominee with respect to such Global Security or, in the case of a
Euro Denominated Global Security, if the Common Depositary is acting as
Depositary for Euroclear and Cedelbank, the principal amount thereof shall
be reduced, by an amount equal to the portion thereof to be so exchanged,
by means of an appropriate adjustment made on the records of the Trustee,
as Authenticating Agent, or of the Common Depositary. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the appropriate
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make available to
the Trustee a supply of Certificated Securities in definitive, fully
registered form, without interest coupons, sufficient to meet the Trustee's
requirements hereunder.
(v) No Rights of Agent Members in Global Security. No Agent
Member of any Depositary nor any other Persons on whose behalf Agent
Members may act (including Euroclear and Cedelbank and account Holders and
Participants therein) shall have any rights under the Indenture with
respect to any Global Security, or under any Global Security, and each
Depositary or its nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by the applicable Depositary or such nominee, as the case may be, or
impair, as between DTC, Euroclear and Cedelbank, their respective Agent
Members and any other person on whose behalf an Agent Member may act, the
operation of customary practices of such Per sons governing the exercise of
the rights of a Holder of any Security.
SECTION 3.14 Special Transfer Provisions.
(a) Transfers to Institutional Accredited Investors. If Securities are
being transferred to an Institutional Accredited Investor, the Securities shall
be accompanied by delivery of a transferee certificate for Institutional
Accredited Investors substantially in the form of Exhibit H hereto and an
opinion of counsel reasonably satisfactory to the Company to the effect that
such transfer is in compliance with the Securities Act.
(b) Other Transfers. If a Holder proposes to transfer a Security
pursuant to any exemption from the registration requirements of the Securities
Act other than as provided for above, the Security Registrar shall only register
such transfer or exchange if such transferor delivers to the Security Registrar
and the Trustee an Opinion of Counsel satisfactory to the Company and the
Security Registrar that such transfer is in compliance with the Securities Act
and the terms of this Indenture; provided that the Company may, based upon the
opinion of its counsel, instruct the Security Registrar by a Company Order not
to register such transfer in any case where the proposed transferee is not a
QIB, an Institutional Accredited Investor or a non-U.S. Person.
(c) General. By its acceptance of any Security bearing Legends, each
Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Legends and agrees that it will
transfer such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.12 or this Section
3.14 for a period of two years, after which time such letters, notices and other
written communications shall at the written request of the Company be delivered
to the Company. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Security Registrar.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Securities expressly provided
for herein or pursuant hereto) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture when
(1) either
(a) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust as provided in
Section 10.3) have been delivered to the Trustee for
cancellation; or
(b) (i) all such Securities not theretofore delivered to the Trustee
for cancellation have become due and payable, or (ii) the Company
has given irrevocable and unconditional notice of redemption for
all of the Outstanding Securities within 60 days of such notice
pursuant to the redemption provisions of this Indenture,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and accrued interest
(and Liquidated Dam ages, if any,) to the date of such deposit;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered irrevocable instructions to the Trustee
to apply the deposited money toward the payment of the Securities at Maturity or
the Redemption Date, as the case may be, which must be within 60 days thereof;
(4) the Holders of the Securities have a valid, perfected, exclusive
security interest in such trust; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to clause(1)(b) of this Section
4.1, the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (or Liquidated Damages, if
any) on any Security when it becomes due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if any,
on) any Security as and when the same becomes payable at its Maturity, or upon
redemption, by acceleration or otherwise, including, without limitation, payment
of the Change of Control Purchase Price or the Asset Sale Offer Price, or
otherwise on Securities validly tendered and not properly withdrawn pursuant to
a Change of Control Offer or Asset Sale Offer, as applicable; or
(3) failure to perform any other covenant or agreement of the Company
under this Indenture or Securities and, except for the provisions under Section
10.10, 10.16, Article Eight and Section 10.12, continued for 30 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by Holders of at least 25% in aggregate principal amount of the Outstanding
Securities;
(4) a default in Indebtedness of the Company or any of its
Subsidiaries with an aggregate amount Outstanding in excess of $50,000,000 (or
its foreign currency equivalent) (a) resulting from the failure to pay principal
at maturity or otherwise at end of any applicable grace period for such payment
pursuant to the original terms of such Indebtedness or (b) as a result of which
the maturity of such Indebtedness has been accelerated prior to its stated
maturity; or
(5) the rendering of a final judgment or final judgments not covered
by insurance in an amount in excess of $50,000,000 (or its foreign currency
equivalent) at any one time against the Company or any of its Subsidiaries by a
court or courts of competent jurisdiction, which judgment or judgments remain
unbonded, undischarged or unstayed for a period of 60 days after the date on
which the right to appeal all such judgments has expired; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary or any other applicable federal, state or foreign law, or
appointing a receiver, liquidator, assignee, trustee or sequestrator (or other
similar official) of the Company or any Significant 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 unstayed and in
effect for a period of 60 consecutive days; or
(7) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief
under the U.S. Federal Bankruptcy Code or any other applicable federal, state or
foreign law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee or sequestrator (or
other similar official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its Indebtedness generally as they become due.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 5.1(6) or
5.1 (7) relating to the Company) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal and accrued interest (and
Liquidated Damages, if any) of all the Securities to be due and payable
immediately by a notice in writing to the Company (and to the Trustee if given
by Holders) (an "Acceleration Notice"), and upon any such declaration such
principal, accrued interest (and Liquidated Damages, if any) shall become
immediately due and payable. If an Event of Default specified in Section 5.1(6)
or 5.1(7) relating to the Company occurs and is continuing, then the principal
and accrued interest (and Liquidated Damages, if any) of all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Securities,
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities which has become due otherwise than by such declaration
of acceleration, and interest on such unpaid principal at the rate borne by the
Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all existing Events of Default, other than the non-payment of
amounts of principal, (or premium, if any,) and interest on the Securities which
have become due solely by such declaration of acceleration, and except a Default
with respect to any provision requiring a supermajority approval to amend, which
Default may only be waived by such a supermajority, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, the Company will, upon demand of
the Trustee, pay to the Trustee for the benefit of the Holders of such
Securities the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installment of interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal, premium, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest (and Liquidated Dam ages, if any) owing
and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money collected by the
Trustee pursuant to this Article Five shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any) and interest (and Liquidated Damages, if any) on the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if any)
and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 Limitation on Suits. No Holder of any Securities shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) the Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) the Trustee is indemnified and/or secured (whether by payment in
advance or otherwise) to its reasonable satisfaction;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or more in
aggregate principal amount of the Outstanding Securities; it being understood
and intended that no one or more Holders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or to
seek to obtain priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment as provided herein (including, if applicable,
Article Twelve) and in such Security of the principal of (and premium, if any)
and (subject to Section 3.7) interest (and Liquidated Damages, if any) on such
Security on the respective Stated Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting
unless it has received indemnity reasonably satisfactory to it.
SECTION 5.13 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past Default hereunder and its
consequences, except a Default
(1) in respect of the payment of the principal of (or premium, if any)
or interest (and Liquidated Damages, if any) on any Security, or
(2) in respect of a covenant or provision hereof which cannot be
modified or amended without the approval of a supermajority, which Default may
only be waived by such a supermajority; or
(3) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they reasonably conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the Holders of the requisite amount of the Outstanding Securities relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or indemnity reasonably satisfactory to it against such
risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.1.
SECTION 6.2 Notice of Default. Within 60 days after being notified or
becoming aware of the occurrence of any Default hereunder, the Trustee shall
transmit, in the manner and to the extent provided in TIA Section 313(c), notice
of such Default hereunder known to any Responsible Officer of the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the with holding of such notice is in the
interest of the Holders.
SECTION 6.3 Certain Rights of Trustee. Subject to Section 6.1 and to
the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Supervisory Board of the Company may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
receive and conclusively rely upon an Officers' Certificate and/or an Opinion of
Counsel;
(4) the Trustee may consult with counsel and other professional
advisers and the written advice of such counsel or advisers or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless the Trustee is indemnified
and/or secured (whether by payment in advance or otherwise) to its reasonable
satisfaction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, nominees,
custodians, delegates or attorneys and the Trustee shall not be responsible for
supervising the actions of such agent, nominee, custodian, delegate or attorney,
nor for any misconduct or negligence on the part of any agent, nominee,
custodian, delegate or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; and
(9) the Trustee shall be entitled to assume that there has been no
Event of Default and that the Company has complied with all of its obligations
hereunder, unless a Responsible Officer of the Trustee has knowledge to the
contrary thereof.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it.
SECTION 6.4 Trustee Not Responsible for Issuance of Securities.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) as agreed in writing between the Company and the Trustee;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to the Trustee's gross negligence or bad
faith; and
(3) to indemnify the Trustee and its directors, officers, employees
and agents for, and to hold them harmless against, any loss, liability or
expense (including counsel's fees and expenses) without gross negligence or bad
faith on the part of any of them, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself or them selves against any claim or liability in connection
with the exercise or performance of any of its or their powers or duties
hereunder.
Upon the occurrence of an Event of Default or a potential Event of
Default or upon the Trustee being required, or considering it necessary, to
undertake duties outside the usual scope of a Trustee, the Trustee will be
entitled to charge additional fees as agreed upon in writing with the Company.
The obligations of the Company under this Section 6.7 to compensate
the Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional Indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the
Trustee. As security for the performance of such obligations of the Company, the
Trustee shall have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(6) or (7), the expenses
(including the reasonable charges and expenses of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 6.7 shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility; Conflicting
Interests.
(a) There shall be at all times a Trustee hereunder which shall be
subject to and comply with the provisions of Section 310(a)(1) of the Trust
Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then, for the
purposes of this Section 6.8, the combined capital and surplus of such
Corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.8, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article Six.
(b) The Trustee shall be subject to and comply with Section 310(b) of
the Trust Indenture Act.
SECTION 6.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.10.
(b) The Trustee may resign at any time by giving 60 days' written
notice thereof to the Company and without assigning any reason thereto or being
responsible for any costs or expenses occasioned thereby. If the instrument of
acceptance by a successor Trustee required by Section 6.10 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may on behalf of the Company, appoint in its
place a reputable financial institution and the Company shall not unreasonably
object to such appointment or may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Security for at least six months (in the
case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), or
(2) the Trustee shall cease to be eligible under Section 6.8(a) and
shall fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months (in
the case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company, by a Board Resolution, may
remove the Trustee or (ii) subject to TIA Section 315(e), any Holder who has
been a bona fide Holder of a Security for at least six months, (in the case of
Global Securities, as evidenced in writing to the Trustee by the relevant
Depositary or Euroclear or Cedelbank), may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Security for at least six months, (
in the case of Global Securities) as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 1.6. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
(g) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
SECTION 6.10 Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its fees, costs, expenses,
charges and any other amounts owed to it hereunder, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business. Any Corporation into which the Trustee may be merged or converted or
with which it may be Consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such Corporation shall be otherwise qualified and eligible under
this Article Six, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee.
In all such cases such certificates shall have the full force and effect which
this Indenture provides that the certificate of authentication of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Trustee Acting in Other Capacities. To the extent that
the Trustee, Banque Internationale a Luxembourg or any other Person appointed
hereunder as Trustee or Paying Agent is acting as Securities Registrar, Common
Depository, Depository or Paying Agent hereunder, the rights, privileges,
immunities and indemnities set forth in this Article Six shall apply to the
Trustee in the additional capacities listed above.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders. Every Holder
of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that none of the Company or the Trustee or any agent of either of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 3.12, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 7.2 Reports by Trustee. Within 60 days after May 30 of each
year commencing with the first May 30 after the first issuance of Securities,
the Trustee shall transmit to the Holders, in the manner and to the extent
provided in TIA Section 313(c), a brief report dated as of such May 30 if
required by TIA Section 313(a).
SECTION 7.3 Reports by Company. The Company shall file with the
Trustee and deliver to the Holders of Securities the reports and other
information required to be provided by it pursuant to Section 10.8.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not, in a single transaction or a series of related transactions,
(i) consolidate with or merge into any other Person or Persons or (ii) directly
or indirectly, sell, lease, convey or transfer all or substantially all of its
assets (computed on a Consolidated basis) to any other Person or group of
affiliated Persons, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a Corporation organized under the
laws of The Netherlands or of the United States of America or any state or the
District of Columbia, any member of the European Economic Area or Switzerland
and expressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
(3) unless such transaction is solely the merger of the Company and
one of its previously existing Wholly Owned Subsidiaries and which transaction
is not in connection with any other transaction, immediately after giving effect
to such transaction, on a pro forma basis, the Consolidated resulting, surviving
or transferee entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt Incurrence Ratio set forth
in Section 10.11 or, if not, the Leverage Ratio would immediately thereafter be
no greater than the Leverage Ratio immediately prior thereto;
(4) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the
Person with which the Company has entered into a transaction under this section,
shall have by amendment to its Guarantee of the Securities confirmed that its
Guarantee of the Securities shall apply to the obligations of the Company or the
surviving entity in accordance with the Securities and this Indenture; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each in form attached hereto as Exhibits F and G
respectively, stating that such consolidation, merger, conveyance, transfer,
lease or acquisition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with, and, with respect to such Officers'
Certificate.
For purposes of this Section 8.1, the transfer (by lease, assignment,
sale or otherwise) of all or substantially all of the properties and assets of
one or more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 8.2 Successor Substituted. Upon any consolidation of the
Company with or merger of the Company with or into any other Corporation or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any Person or Persons in accordance with Section
8.1, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and (except in the case of a lease) be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and, in the
event of any such conveyance or transfer (except in the case of a lease), the
Company shall be discharged of all obligations under this Indenture and the
Securities except with respect to any obligations that arise from, or are
related to, such transaction.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders. Without the consent
of any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section 6.10;
or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture; provided that such action shall not adversely affect the interests of
the Holders in any material respect; or
(7) to provide for collateral securing the Company's obligations under
this Indenture and the Securities; or
(8) to provide for Guarantees by any other Person of the Company's
obligations pursuant to this Indenture and the Securities;
provided such actions shall not adversely affect the interests of Holders in any
material respect.
SECTION 9.2 Indentures with Consent of Holders. With the consent of
the Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that:
(i) no such modification may, without the consent of Holders of at
least 66 2/3% in aggregate principal amount of Outstanding Securities,
modify the provisions of Section 10.10 (including the defined terms
used therein) in a manner adverse to the Holders; and
(ii) no such modification shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of any Security, or reduce the
principal amount thereof or the rate of interest (or extend the time for payment
of interest, if any) thereon or any premium payable upon the redemption thereof
at the option of the Company, or change the place of payment where, or the coin
or currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
at the option of the Company, on or after the Redemption Date), or reduce the
Change of Control Purchase Price or the Asset Sale Offer Price after the
corresponding Change of Control or Asset Sale has occurred or alter the
provisions (including the defined terms used therein) regarding the right of the
Company to redeem the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such amendment,
supplemental indenture or waiver provided for in this Indenture, or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) cause the Securities to become subordinate in right of payment to
any other Indebtedness.
It shall not be necessary for any Act of Holders under this Section
9.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is permitted by this Indenture and an Officers' Certificate stating
that all conditions precedent to the execution of such supplemental indenture
have been fulfilled. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Indentures. Upon the execution of any
supplemental indenture under this Article Nine, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act. Every supple mental
indenture executed pursuant to this Article Nine shall conform as a matter of
contract or law to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6 Reference in Securities to Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Nine may bear a notation in form approved by the
Trustee and the Company as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
SECTION 9.7 Notice of Indentures. Promptly after the execution by the
Company and the Trustee of any supplemental indenture pursuant to the provisions
of Section 9.2, the Company shall give notice thereof to the Holders of each
Outstanding Security affected, in the manner provided for in Section 1.6,
setting forth in general terms the substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and Interest. (1)
The Company covenants and agrees for the benefit of the Holders that it shall
duly and punctually pay the principal of (and premium, if any) and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
(2) For the purpose set forth in paragraph (1) above, the Company
shall, no later than 10:00 a.m., New York time, on the Business Day first
preceding each Payment Date, transfer to an account specified by the Trustee
such amount in immediately available and freely transferable U.S. Dollar funds,
in the case of Dollar Denominated Securities, or Euro funds in the case of Euro
Denominated Securities, as shall be sufficient for the purposes of the payment
of principal of (and premium, if any) and interest (and Liquidated Damages, if
any) due to be paid on the Securities on that date.
(3) The Company shall ensure that not later than the second Business
Day immediately preceding the date on which any payment is to be made to the
Trustee pursuant to this Section 10.1, the Company shall procure that a copy of
an irrevocable payment instruction to the bank through which the payment is to
be made shall be sent to the Trustee.
(4) Unless and until the full amount of any payment due on the
Securities has been made to the Trustee, or unless and until the Trustee is
satisfied that such payment will be made, neither it nor the other Paying Agents
shall be bound to make payments in respect of the Securities hereunder.
(5) If the Trustee or a Paying Agent pays any amounts to the Holders
or to any other Agent at a time when it has not received payment in full from
the Company in respect of such Securities, the Company shall, in addition to
paying amounts due under Section 10.1(2), pay to the Trustee on demand interest
thereon at such a rate as the Trustee shall certify as the aggregate of 1% per
annum and the cost of funding any such payment made by it (as determined by the
Trustee) until the receipt in full by the Trustee of the funds due to it
pursuant to Section 10.1(2).
SECTION 10.2 Maintenance of Office or Agency. The Company shall
maintain in The City of New York and London, and for so long as the Securities
are listed on the Luxembourg Stock Exchange, in Luxembourg, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands (other than service of process) to or upon the Company in respect of
the Securities and this Indenture may be served. The Corporate Trust Office of
the Trustee shall be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of such
purposes. The Company shall give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company hereby initially designates (1) the Trustee at its address
set forth in Section 1.5 hereof as its office or agency in London and Citibank,
N.A. (New York branch), 111 Wall Street, New York, New York as its office or
agency in New York, for such purposes, (ii) Banque Internationale a Luxembourg,
at its office or agency in Luxembourg for such purposes and (iii) the Paying
Agent at its address set forth in Section 1.5 hereof.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes and may from time
to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York and, for so
long as the Securities are listed on the Luxembourg Stock Exchange, in
Luxembourg, for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
SECTION 10.3 Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of the principal of (or premium, if any) or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal of (or premium, if any) or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, on or before each due date of the principal of (or
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 10.3,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of principal,
premium, if any, or interest, of which it is aware;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith act under the direction of the Trustee
and pay to the Trustee all sums so held in trust by such Paying Agent; and
(4) indemnify the Trustee and its officers, directors, employees and
agents against any loss, cost or liability caused by, or incurred as a result
of, such Paying Agent's acts or omissions.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Security and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York and in London, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence. Subject to Article Eight, the
Company shall do or cause to be done all things necessary to preserve and keep
in full force and effect the corporate existence, rights (charter and statutory)
and franchises of the Company and each Subsidiary; provided, however, that the
Company shall not be required to preserve, with respect to the Company, any such
right or franchise or, with respect to any Subsidiary (subject to all the other
covenants in this Indenture), any such corporate existence, right or franchise,
if the Supervisory Board of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 10.5 Payment of Taxes and Other Claims. The Company shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.6 Maintenance of Properties. The Company shall cause all
properties owned by the Company or any Subsidiary or used or held for use in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 10.6 shall prevent the Company from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 10.7 Insurance. The Company shall at all times keep all of its
and its Subsidiaries' properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage to
the extent that property of similar character is usually so insured by
Corporations similarly situated and owning like properties.
SECTION 10.8 Provision of Financial Statements. The Company has agreed
that, for so long as any Securities remain Outstanding, whether or not the
Company is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company will deliver to the Trustee and, to each Holder and to
prospective purchasers of Securities identified to the Company, within 15 days
after the Company is or would have been (if the Company were subject to such
reporting obligations) required to file such with the SEC, annual and quarterly
financial statements substantially equivalent to financial statements that would
have been included in reports filed with the SEC, if the Company were subject to
the requirements of Section 13 or 15(d) of the Exchange Act, including, with
respect to annual information only, a report thereon by the Company's certified
independent public accountants as such would be required in such reports to the
SEC, and, in each case, together with a management's discussion and analysis of
financial condition and results of operations which would be so required and,
unless the SEC will not accept such reports, file with the SEC the annual,
quarterly and other reports which it is or would have been required to file with
the SEC.
Following the effectiveness of the Registration Statement, the Company
will file with the Trustee, at the time it files them with the SEC, copies of
the annual and quarterly reports and the information, documents and other
reports that the Company is required to file with the SEC under Section 13(a) or
15(d) of the Exchange Act. If the Company ceases to be required to file SEC
reports under the Exchange Act, the Company will nevertheless continue to file
such reports with the Trustee. The Company will furnish copies of the SEC
reports to investors who request them in writing.
SECTION 10.9 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, on the date of delivery
of each quarterly report to be delivered pursuant to Section 10.8, and within 14
days of a request by the Trustee, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 10.9(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the Trustee for or the Holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than $50,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by facsimile
transmission an Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
SECTION 10.10 Purchase of Securities upon Change of Control.
(1) (a) Upon the occurrence of a Change of Control, the Company will
be required to make an offer to each Holder to purchase for cash all or a
portion of such Holder's Securities (provided that the principal amount of such
Securities must be $1,000 (or (E)1,000, as applicable) or an integral multiple
thereof) pursuant to the offer described below (the "Change of Control Offer"),
at a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest (and Liquidated Damages, if any) to the date of
purchase (the "Change of Control Purchase Price").
(b) Within 10 Business Days following a Change of Control, the Company
must send a notice to each Holder which notice shall govern the terms of the
Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no later than 35 Business Days from the date of the
Change of Control, other than as may be required by law (the "Change of Control
Purchase Date"). The Change of Control Offer shall remain open for 20 Business
Days following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
Holders electing to have a Security purchased pursuant to a Change of Control
Offer will be required to surrender the Security, by delivery of a form entitled
"Option of Holder to Elect Purchase", obtainable from the Trustee or any Paying
Agent substantially in the form of Exhibit I, completed, to the Paying Agent at
the address specified in the notice prior to the close of business on the third
Business Day prior to the Change of Control Purchase Date. The Paying Agent
promptly will pay the Holders of Securities so accepted an amount equal to the
Change of Control Purchase Price (together with accrued and unpaid interest and
Liquidated Damages, if any) and the Trustee promptly will authenticate and
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. The Company will publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Purchase Date.
The notice referred to above shall be a written offer (the "Offer")
sent by the Company by first class mail, postage prepaid, to each Holder of
Securities at its address appearing in the Security Register on the date of the
Offer offering to purchase up to the principal amount of Securities specified in
such Offer at the Change of Control Purchase Price. Unless otherwise required by
applicable law, the Offer shall specify an expiration date (the "Expiration
Date") of the Change of Control Offer which shall be, subject to any contrary
requirements of applicable law, 20 Business Days after the date of the Offer and
a settlement date (the "Change of Control Purchase Date") for purchase of
Securities within five Business Days after the Expiration Date. The Company
shall notify the Trustee in writing at least 15 Business Days, or a shorter
period that is acceptable to the Trustee, prior to the mailing of the Offer of
the Company's obligation to make a Change of Control Offer, and the Offer shall
be mailed by the Company or, at the Company's request, by the Trustee in the
name and at the expense of the Company. The Offer shall contain information
concerning the business of the Company and its Subsidiaries which the Company in
good faith believes will enable the Holders to make an informed decision with
respect to the Change of Control Offer, which at a minimum will include (i) the
most recent annual and quarterly financial statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
contained in the documents required to be filed with the Trustee pursuant to
Section 10.8 (which requirements may be satisfied by delivery of the documents
together with the Offer), (ii) a description of material developments in the
Company's business subsequent to the date of the latest of the financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Change of Control Offer), (iii) if applicable,
appropriate pro forma financial information concerning the Change of Control
Offer and the events requiring the Company to make the Change of Control Offer
and (iv) any other information required by applicable law to be included
therein. The Offer shall contain all instructions and materials necessary to
enable the Holders to tender Securities pursuant to the Change of Control Offer.
The Offer shall also state:
(a) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(b) the Expiration Date and the Change of Control Purchase Date;
(c) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company in the Change of Control Offer,
including, if less than 100%, the manner by which the amount has been determined
pursuant to the Section hereof requiring the Change of Control Offer (the
"Purchase Amount");
(d) the Change of Control Purchase Price;
(e) that the Holder may tender all or any portion of the Securities
registered in the name of the Holder and that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 or (E)1,000 principal amount;
(f) the place or places where the Securities are to be surrendered for
tender pursuant to the Change of Control Offer;
(g) that any of the Securities not tendered or tendered but not
purchased by the Company will continue to accrue interest;
(h) that on the Change of Control Purchase Date the Purchase Price
will become due and payable upon the Securities being accepted for payment
pursuant to the Change of Control Offer and that any interest shall cease to
accrue on and after the Change of Control Purchase Date;
(i) that each Holder electing to tender the securities in the purchase
will be required to surrender the Securities at the place or places specified in
the Offer prior to the close of business on the Expiration Date with the
Securities being, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly signed by, the
Holder or his attorney duly authorized in writing;
(j) that Holders will be entitled to withdraw all or any portion of
the Securities tendered if the Company or its Paying Agent receives, not later
than the close of business on the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder tendered, the certificate number of the Securities the
Holder tendered and a statement that such Holder is withdrawing all or a portion
of his tender;
(k) that (i) if the Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not withdrawn in the
Purchase, the Company shall purchase all the Securities and (ii) if the
Securities in an aggregate principal amount in excess of the Purchase Amount are
tendered and not withdrawn in the Change of Control Offer, the Company shall
purchase the Securities having an aggregate principal amount equal to the
Purchase Amount on a pro rata basis with adjustments that the Company may deem
appropriate so that only Securities in denominations of $1,000 or (E)1,000 or
integral multiples thereof shall be purchased; and
(l) that in the case of any Holder whose Securities are purchased only
in part, the Company shall sign, and the Trustee shall authenticate and deliver
to the Holder of the Securities without service charge, the new Security or
Securities, of any authorized denomination as requested by the Holder, in an
aggregate principal amount equal to and in exchange for the unpurchased portion
of the Securities so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Change of Control Offer.
The Company will not be required to make an offer to purchase any
series of Securities upon a Change of Control if, before the Change of Control
occurs, it has exercised its right to redeem all of the Securities of such
series as described under Section 11.1.
(2) On or before the Change of Control Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) cash sufficient to pay the purchase price (together
with accrued and unpaid interest and Liquidated Damages, if any) of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so tendered together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company.
(3) In the event that the Company makes a Change of Control Offer, the
Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
(4) If the Change of Control Purchase Date hereunder is on or after an
interest payment Record Date and on or before the associated Interest Payment
Date, any accrued and unpaid interest (and Liquidated Damages, if any) due on
such Interest Payment Date will be paid to the Person in whose name a Security
is registered at the close of business on such Record Date, and such interest
(and Liquidated Damages, if applicable) will not be payable to Holders who
tender the Securities pursuant to the Change of Control Offer.
Notwithstanding anything contained in this Indenture to the contrary,
the Company will not, any will not permit any of its Subsidiaries to, incur any
Indebtedness that is contractually subordinate to any other Indebtedness of the
Company unless such Indebtedness is at least as subordinate to the Securities.
SECTION 10.11 Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock. (1) The Company may not, and may not permit any
Subsidiary to, directly or indirectly, issue, assume, guaranty, incur, become
directly or indirectly liable with respect to (including as a result of an
Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an "incurrence"),
any Indebtedness (including Disqualified Capital Stock and Acquired
Indebtedness), other than Permitted Indebtedness. Notwithstanding the foregoing
if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro forma
basis to, such incurrence of Indebtedness; and
(ii) on the date of such incurrence (the "Incurrence Date"), either
(i) the Leverage Ratio of the Company for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness and, to the extent set forth in the definition
of Leverage Ratio, the use of proceeds thereof, would not exceed 7.0 to 1.0 (the
"Debt Incurrence Ratio"), (ii) the Consolidated Coverage Ratio of the Company
for the Reference Period immediately preceding the Incurrence Date, after giving
effect on a pro forma basis to such incurrence of such Indebtedness and, to the
extent set forth in the definition of Consolidated Coverage Ratio, the use of
proceeds thereof, would not be less than 1.75 to 1.0, or (iii) after giving
effect on a pro forma basis to such incurrence of Indebtedness, and, to the
extent used to retire other Indebtedness, the use of proceeds therefrom, the
amount of Indebtedness Outstanding of the Company would not exceed 225% of the
Consolidated Invested Equity Capital of the Company,
then the Company may incur such Indebtedness (including Disqualified Capital
Stock and Acquired Indebtedness).
(2) The foregoing limitations of paragraph (1) of this Section 10.11 will
not prohibit:
(a) if no Event of Default shall have occurred and be continuing, the
incurrence by the Company or its Subsidiaries of Indebtedness in an aggregate
amount incurred and Outstanding at any time pursuant to this subparagraph (a)
(plus any refinancing indebtedness incurred to retire, defease, refinance,
replace or refund such Indebtedness) of up to $400,000,000 (or the equivalent
thereof, at the time of incurrence, in the applicable foreign currencies);
(b) the incurrence by the Company and its Subsidiaries of Indebtedness
pursuant to the Credit Agreement in an aggregate amount incurred and Outstanding
at any time pursuant to this paragraph (b) (plus any refinancing indebtedness
incurred to retire, defease, refinance, replace or refund such Indebtedness) of
up to (E)1 billion, minus the amount of any such Indebtedness (i) retired with
the Net Cash Proceeds from any Asset Sale applied to reduce permanently the
Outstanding amounts or the commitments with respect to such Indebtedness
pursuant to Section 10.16 or (ii) assumed by a transferee in an Asset Sale;
(c) the incurrence by any Subsidiary of Indebtedness, if on the
Incurrence Date either (1) the Leverage Ratio of such Subsidiary of the Company
for the Reference Period immediately preceding the Incurrence Date, after giving
effect on a pro forma basis to such incurrence of such Indebtedness and to the
extent set forth in the definition of Leverage Ratio, the use of proceeds
thereof, would be no more than 7.0 to 1.0, or (2) the Consolidated Coverage
Ratio of such Subsidiary for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a pro forma basis to such incurrence of
such Indebtedness and, to the extent set forth in the definition of Consolidated
Coverage Ratio, the use of proceeds thereof, would be no less than 1.75 to 1.00,
or (3) after giving effect on a pro forma basis to such incurrence of such
Indebtedness, and, to the extent used to retire other Indebtedness, the use of
proceeds therefrom, the amount of Indebtedness Outstanding of such Subsidiary
would not exceed 225% of the Consolidated Invested Equity Capital of such
Subsidiary, provided in the case of each of clauses (c)(1), (2) and (3), the net
proceeds therefrom are used in a Related Business of the Company or any
affiliated company of the Company, and provided, further, that for the purposes
of this clause (c) a Subsidiary may be a co-obligor or guarantor on such
Indebtedness of another Subsidiary of the Company (A) if such co-obligor or
guarantor Subsidiary owns (either directly or indirectly through one or more
Subsidiaries of the Company) all or a portion of the Equity Interests of the
Subsidiary of the Company that incurred such Indebtedness, (B) if all or a
portion of the Equity Interests of such co-obligor or guarantor Subsidiary is
owned (either directly or indirectly through one or more Subsidiaries of the
Company) by the Subsidiary that incurred such Indebtedness or (C) if such
co-obligor or guarantor Subsidiary owns (either directly or indirectly through
one or more Subsidiaries of the Company) all or a portion of the business that
will use the proceeds of such Indebtedness; and
(d) if no Event of Default shall have occurred and be continuing, the
incurrence by Subsidiaries of the Company of Indebtedness pursuant to the
Existing Agreements up to, but not in excess of the maximum applicable amounts
of Indebtedness available for borrowing pursuant to the terms of each such
Existing Agreement as in effect on the date of the Indenture; provided that, in
determining the maximum applicable amounts available, it shall be assumed that
the Company satisfies any applicable conditions to borrowing.
Indebtedness (including Disqualified Capital Stock) of any Person which is
Outstanding at the time such Person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other Person as a Subsidiary)
or is merged with or into or Consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
Consolidated with the Company or a Subsidiary of the Company, as applicable.
Upon each incurrence, the Company may designate pursuant to which provision
of this Section 10.11 such Indebtedness is being incurred and such Indebtedness
shall not be deemed to have been incurred or Outstanding under any other
provision of this Section 10.11, except as stated otherwise in the foregoing
provisions.
SECTION 10.12 Limitation on Restricted Payments. (1) The Company may
not, and may not permit any of its Subsidiaries to, directly or indirectly, make
any Restricted Payment if, after giving effect to such Restricted Payment on a
pro forma basis:
(A) a Default or an Event of Default shall have occurred and be continuing,
(B) the Company is not permitted to incur at least $1.00 (or its foreign
currency equivalent) of additional Indebtedness pursuant to the Debt Incurrence
Ratio in Section 10.11, or
(C) the aggregate amount of all Restricted Payments made by the Company and
its Subsidiaries, including after giving effect to such proposed Restricted
Payment, on and after the Issue Date, would exceed, without duplication (and
except to the extent otherwise credited pursuant to clause (g) of the definition
of "Permitted Investment"), the sum of:
(a) (i) the amount of the cumulative Consolidated EBITDA of the
Company, if positive, less 150% of the cumulative Consolidated Fixed Charges of
the Company, for the period (taken as one accounting period), commencing on the
first day of the first full fiscal quarter commencing after the Issue Date, to
and including the last day of the fiscal quarter ended immediately prior to the
date of each such calculation for which Consolidated financial statements of the
Company are available, provided that such sum shall not be deemed to result in
an amount less than zero for purposes of any calculation pursuant to this clause
(C)(a)(i); or (ii) if such cumulative Consolidated EBITDA of the Company is zero
or less, then the amount of such cumulative Consolidated EBITDA for such period;
plus
(b) the aggregate Net Cash Proceeds received by the Company from the
sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the
Company and (ii) to the extent applied in connection with a Qualified Exchange),
after the Issue Date; plus
(c) to the extent that any Investment (other than a Permitted
Investment) that was made after the Issue Date is sold for cash or Cash
Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the
amount of cash or Cash Equivalents received by the Company, but only to the
extent of the lesser of (i) the cash or Cash Equivalents transferred as a return
of capital with respect to such Investment and (ii) the initial amount of such
Investment (in either case, less the cost of disposition, if any); plus
(d) in the event an Unrestricted Subsidiary is designated as a
Subsidiary, an amount equal to fair market value, at such time, of the
Investment of the Company and its Subsidiaries made after the Issue Date;
provided, however, that such amount shall not exceed the amount of Investments
previously made in such Subsidiary that were counted as Restricted Payments
pursuant to this covenant.
(2) (a) The foregoing clauses (B) and (C) of Section 10.12(1),
however, will not prohibit: (i) any dividend, distribution or payment of
dividends on Disqualified Capital Stock permitted by Section 10.11; and (ii) any
repurchase by the Company of any shares of any class or options to acquire such
shares from any current, future or former directors, officers or employees of
the Company or any of its Subsidiaries or Affiliates, provided that the
aggregate amount of all the repurchases made under this clause shall not exceed
$10,000,000 in any twelve-month period (with unused amounts in any calendar year
being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $14,000,000 in any calendar year);
provided, further, that such amount in any calendar year may be increased by an
amount not to exceed (1) the cash proceeds from the sale of Capital Stock of the
Company to its Supervisory Board members, management board members or officers
of the Company and its Subsidiaries that occurs after the Issue Date, plus (2)
the cash proceeds of key man life insurance policies received by the Company and
its Subsidiaries after the Issue Date;
and (b) the foregoing clauses (A), (B) and (C) of Section 10.12(1) will not
prohibit:
(i) any dividend, distribution or other payments by any Subsidiary of
the Company on its Equity Interests that is paid pro rata to all holders of such
Equity Interests;
(ii) a Qualified Exchange;
(iii) the payment of any dividend on Qualified Capital Stock within 60
days after the date of its declaration if such dividend could have been made on
the date of such declaration in compliance with the foregoing provisions; or
(iv) the payment of dividends by the Company in cash or Qualified
Capital Stock pursuant to the terms of any Parent Stock Instrument that is
incurred or issued (as applicable) in compliance with this Indenture.
The full amount of any Restricted Payment made pursuant to paragraphs
2(a)(i), (ii) and 2(b)(i), (iii) and (iv), but not pursuant to paragraph
2(b)(ii), however, will be counted as Restricted Payments made for purposes of
the calculation of the aggregate amount of Restricted Payments available to be
made referred to in Section 10.12(1)(C).
For purposes of this section, the amount of any Restricted Payment
made or returned, if other than in cash, shall be the fair market value thereof,
as determined in the good faith reasonable judgment of the Company's Supervisory
Board, unless stated otherwise, at the time made or returned, as applicable.
Addition ally, on the date of each Restricted Payment, the Company shall deliver
an Officers' Certificate to the respective Trustee describing in reasonable
detail the nature of such Restricted Payment, stating the amount of such
Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compliance with the terms of this Indenture.
SECTION 10.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. (1) The Company may not, and may not permit any
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual restriction on the ability of any
Subsidiary:
(i) to pay dividends, in cash or otherwise, or make any other
distributions to or on behalf of or pay any obligation to or on behalf of the
Company or any Subsidiary of the Company;
(ii) to make or pay loans or advances to or on behalf of the Company
or any Subsidiary of the Company; or
(iii) to transfer property or assets to or on behalf of the Company or
any Subsidiary of the Company,
except:
(a) restrictions imposed by the Securities or the Discount Notes or
the Indenture or the Discount Notes Indenture or by other Indebtedness of the
Company ranking pari passu with the Securities and the Discount Notes, provided
that such restrictions are no more restrictive than those imposed by the
Indenture and the Securities;
(b) restrictions imposed by applicable law;
(c) restrictions under Indebtedness Outstanding on the Issue Date,
including pursuant to the Credit Agreement;
(d) restrictions under any Acquired Indebtedness not incurred in
violation of the Indenture or any agreement (including any Equity Interest)
relating to any property, asset, or business acquired by the Company or any of
its Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition, and are not applicable to any Person, other than the Person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired;
(e) any such restriction or requirement imposed by Indebtedness
incurred under the Credit Agreement pursuant to Section 10.11, provided that
such restriction or requirement is no more restrictive than that imposed by the
Credit Agreement as of the Issue Date;
(f) with respect solely to a Subsidiary of the Company imposed
pursuant to a binding agreement which has been entered into for the sale or
disposition of all or substantially all of the Equity Interests or assets of
such Subsidiary, provided that such restrictions apply solely to the Equity
Interests or assets of such Subsidiary which are being sold;
(g) restrictions under Purchase Money Indebtedness not incurred in
violation of the Indenture, provided that such restrictions relate only to the
property financed with such Indebtedness;
(h) with respect to any Subsidiary, restrictions contained in the
terms of any Indebtedness incurred in compliance with the Indenture, or any
agreement pursuant to which such Indebtedness was issued, if (A) the encumbrance
or restriction applies only in the event of a payment default or a default with
respect to a financial covenant contained in such Indebtedness or agreement, (B)
the Company shall have reasonably determined that the encumbrance or restriction
is not materially more disadvantageous to the Holders of the Securities than is
customary in comparable financings, and (C) the Company shall have reasonably
determined that any such encumbrance or restriction will not materially affect
the Company's ability to make principal or interest payments on the Securities;
and
(i) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (a), (c), (d), or (g),
or this clause (i), of this paragraph that are not more restrictive than those
being replaced and do not apply to any other Person or assets than those that
would have been covered by the restrictions in the Indebtedness so refinanced.
(2) Notwithstanding the provisions of Section 10.13(1), (a) customary
provisions restricting subletting, assignment or transfer of any lease, license,
conveyance, or similar document or instrument entered into in the ordinary
course of business, consistent with industry practice and (b) any asset or
property subject to a Lien which is not prohibited to exist with respect to such
asset pursuant to the terms of this Indenture may be subject to customary
restrictions on the transfer or disposition thereof pursuant to such Lien.
SECTION 10.14 Limitation on Liens Securing Indebtedness. The Company
may not, and may not permit any Subsidiary to, create, incur, assume or suffer
to exist any Lien of any kind, other than Permitted Liens, upon any of their
respective assets now owned or acquired on or after the date of this Indenture
or upon any income or profits therefrom securing any Indebtedness of the
Company, unless the Company provides, and causes its Subsidiaries to provide,
concurrently therewith, that the Securities are equally and ratably so secured;
provided that if such Indebtedness is Subordinated Indebtedness, the Lien
securing such Subordinated Indebtedness shall be subordinate and junior to the
Lien securing the Securities with the same relative priority as such
Subordinated Indebtedness shall have with respect to the Securities.
SECTION 10.15 Limitation on Issuances of Guarantees by Subsidiaries.
(1) Notwithstanding the other provisions of this Indenture, the Company may not
permit any Subsidiary to, directly or indirectly, Guarantee any Indebtedness of
the Company (other than Indebtedness incurred pursuant to the Credit Agreement
in accordance with the terms of this Indenture) ("Guaranteed Indebtedness"),
then such Subsidiary must become a Guarantor (a "Subsidiary Guarantor") of the
Securities on a basis such that the Subsidiary's Guarantee of the Securities
shall stand in substantially the same relative ranking in right of payment to
the guarantee of such other Indebtedness as the Securities stand in relative
ranking to such other Indebtedness; provided that this paragraph shall not be
applicable to any guarantee by any Subsidiary that (a) existed at the time such
Person became a Subsidiary of the Company and (b) was not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary of the Company.
(2) Subsidiary Guarantees shall be automatically released upon (i) the
sale or other disposition of all or substantially all of the Company's and its
Subsidiaries' beneficial interest in the Equity Interests or assets of such
Subsidiary Guarantor, provided that thereafter such Subsidiary Guarantor shall
cease to be a Subsidiary of the Company, (ii) the consolidation or merger of any
such Subsidiary Guarantor with any Person other than the Company or a Subsidiary
of the Company if, as a result of such consolidation or merger, such Subsidiary
Guarantor ceases to be a Subsidiary of the Company (and shall not be a
Subsidiary of the successor to the Company), (iii) a Legal Defeasance, or (iv)
the unconditional and complete release of such Subsidiary Guarantor from its
Guarantee of all Guaranteed Indebtedness.
SECTION 10.16 Limitation on Sale of Assets and Subsidiary Stock.
(1) The Company may not, and may not permit any Subsidiary to, in one
or a series of related transactions, convey, sell, transfer, assign or otherwise
dispose of, directly or indirectly, any of the Company's or such Subsidiary's
property, business or assets (including by merger or consolidation in the case
of a Subsidiary of the Company), and including any sale or other transfer or
issuance of any Equity Interests of any Subsidiary of the Company, whether by
the Company or a Subsidiary or through the issuance, sale or transfer of Equity
Interests by a Subsidiary of the Company, and including any sale and leaseback
transaction (any of the foregoing, an "Asset Sale"), unless:
(A) (1) the amount equal to the Net Cash Proceeds there from (the
"Asset Sale Offer Amount") is applied
(i) within 360 days (or 540 days in the case of a Special
Character Asset Sale) after the date of such Asset Sale to the optional
redemption of the Securities in accordance with the terms of the Indenture and
other Indebtedness of the Company ranking pari passu in right of payment with
the Securities and with similar provisions requiring the Company to redeem such
Indebtedness with the proceeds from such Asset Sale, pro rata in proportion to
the respective principal amounts (or accreted values in the case of Indebtedness
issued with original issue discount) of the Securities and such other
Indebtedness then Outstanding, or
(ii) within 360 days (or 540 days in the case of a Special
Character Asset Sale) after the date of such Asset Sale to the repurchase of the
Securities and such other Indebtedness ranking pro rata in right of payment with
the Securities and with similar provisions requiring the Company to make an
offer to purchase such Indebtedness with the proceeds from such Asset Sale
pursuant to a cash offer (subject only to conditions required by applicable law,
if any) pro rata in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with original issue discount) of the
Securities and such other Indebtedness then Outstanding (the "Asset Sale Offer")
at a purchase price of 100% of principal amount (or accreted value in the case
of Indebtedness issued with original issue discount) (the "Asset Sale Offer
Price") together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment, made within 360 days (or 540 days in the case of a
Special Character Asset Sale) of such Asset Sale, or
(iii) within 360 days (or 540 days in the case of a Special
Character Asset Sale), to the repayment of Indebtedness then Out standing
pursuant to the Credit Agreement or, if required by the terms of such
Indebtedness, of Indebtedness issued by a Subsidiary of the Company (in respect
of which Indebtedness the Company is not a direct or contingent obligor except
by virtue of the Company's pledge of Equity Interests of, and other interests of
or claim on, such Subsidiary or the Company's guarantee of such Subsidiary's
Indebtedness to the extent, in either case, the recourse against the Company is
limited to such Equity Interests or claim), or
(2) within 360 days (or 540 days in the case of a Special Character
Asset Sale) following such Asset Sale, the Asset Sale Offer Amount is invested
in assets and property which in the good faith reasonable judgment of the
Company will immediately constitute or be a part of a Related Business of the
Company or such Subsidiary (if it continues to be a Subsidiary) immediately
following such transaction or is used to make Permitted Investments in the
Company or a Subsidiary of the Company (other than Cash Equivalents or
securities of the Company or any Person controlling the Company except as
permitted by the Indenture), provided that (i) 50% of the Net Cash Proceeds from
Special Character Asset Sales and 100% of the net proceeds from any Asset Sale
of an Investment made in reliance on clause (g) of the definition of "Permitted
Investments" may be reinvested in any Permitted Investment (other than, in
either case, Cash Equivalents or securities of the Company or any Person
controlling the Company except as permitted by the Indenture) which in the good
faith reasonable judgment of the Company will immediately constitute or be a
part of a Related Business and (ii) 100% of the net proceeds from an Asset Sale
constituting the sale of an Investment in any Person (excluding a Person that
would be Consolidated with the Company under GAAP and excluding Related Assets
of the Company or any of its Subsidiaries) in which the Company or any of its
Subsidiaries has an Equity Interest may be reinvested in Investments permitted
by clause (e) or (f) of the definition of "Permitted Investments,"
(B) at least 75% of the total consideration for such Asset Sale
or series of related Asset Sales consists of cash, Cash Equivalents, Replacement
Assets or the assumption of Indebtedness of a Subsidiary. For purposes of this
subparagraph (B), total consideration received means the total consideration
received for such Asset Sales, minus the amount of (a) Purchase Money
Indebtedness secured solely by the assets sold and assumed by a transferee,
provided that the Company and the Subsidiaries are released from any obligation
in connection therewith; and (b) property that within 30 days of such Asset Sale
is converted into cash or Cash Equivalents, provided that such cash and Cash
Equivalents shall be treated as Net Cash Proceeds attributable to the original
Asset Sale for which such property was received.
(C) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect to, on a pro forma
basis, such Asset Sale, and
(D) in the case of a transaction or series of related
transactions exceeding $15,000,000 (or the foreign currency equivalent on the
date of the transaction) of consideration to any party thereto, the Supervisory
Board of the Company determines in its good faith reasonable judgment that the
Company or such Subsidiary, as applicable, receives fair market value for such
Asset Sale.
(2) An acquisition of Securities pursuant to an Asset Sale Offer may
be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied
to the uses set forth in 1(a)(i), (iii), or 1(b) above (the "Excess Proceeds")
exceeds $50,000,000 (or the foreign currency equivalent thereof), provided that,
in the case of an Asset Sale by a Subsidiary of the Company that is not a Wholly
Owned Subsidiary, only the Company's and its Subsidiaries' pro rata portion of
such Net Cash Proceeds shall constitute Net Cash Proceeds subject to the
provisions of this Section 10.16. Each Asset Sale Offer shall remain open for 20
Business Days following its commencement (the "Asset Sale Offer Period"). Upon
expiration of the Asset Sale Offer Period, the Company shall apply the Asset
Sale Offer Amount, plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Indebtedness properly
tendered (on a pro rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together
with accrued interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Securities and such other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Company may apply any remaining Net Cash Proceeds to any purpose consistent with
this Indenture, and following the consummation of each Asset Sale Offer the
Excess Proceeds amount shall be reset to zero.
Notwithstanding, and without complying with, the foregoing provisions
of this Section 10.16:
(u) the Company and its Subsidiaries may, in the ordinary
course of business, (a) convey, sell, transfer, assign or otherwise dispose
of inventory and other assets acquired and held for resale in the ordinary
course of business and (b) liquidate and otherwise dispose of Cash
Equivalents;
(v) the Company and its Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of property, businesses, or assets
pursuant to and in accordance with Article Eight.
(w) the Company and its Subsidiaries may sell or dispose of
damaged, worn out or other obsolete personal property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of the Company or such Subsidiary, as
applicable, and the Company and its Subsidiaries may replace personal
property in the ordinary course of business so long as the replacement
property is necessary for the proper conduct of the business of the Company
or such Subsidiary, as applicable, and sell or dispose of such replaced
property in the ordinary course;
(x) the Company and its Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of property, businesses, or assets to
the Company or any of its Subsidiaries;
(y) the Company and each of its Subsidiaries may surrender
or waive contract rights or settle, release or surrender contract, tort or
other claims of any kind in the ordinary course of business or grant Liens
not otherwise prohibited by the Indenture;
(z) the Company and its Subsidiaries may ex change assets
for property, businesses, or assets held by any Person (including by merger
or consolidation in the case of a Subsidiary of the Company); provided that
(a) property, businesses and assets, which in one or a series of related
transactions exceeds $15,000,000 in value, received by the Company or such
Subsidiaries in any such exchange in the good faith reasonable judgment of
the Supervisory Board of the Company will immediately constitute, be a part
of, or be used in, a Related Business of the Company or such Subsidiaries,
(b) the Supervisory Board of the Company has determined that the terms of
any exchange, which in one or a series of related transactions exceeds
$15,000,000 in fair market value, are fair and reasonable, and (c) any cash
or Cash Equivalents received by the Company or any Subsidiary in such
exchange shall be treated as having been received as a result of an Asset
Sale.
All Net Cash Proceeds from an Event of Loss shall be used all within the
period and as otherwise provided above in clause (1) of the first paragraph of
this Section 10.16.
(3) Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws. To the extent that the provisions
of any applicable securities laws, rules, or regulations conflict with the
provisions of this section, compliance by the Company or any of its subsidiaries
with such laws, rules or regulations shall not in and of itself cause a breach
of its obligations under this section.
(4) If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the Person in whose name a Security is registered at the close of business on
such Record Date, and such interest (or Liquidated Damages, if applicable) will
not be payable to Holders who tender Securities pursuant to such Asset Sale
Offer.
SECTION 10.17 Limitation on Transactions with Affiliates. The Company
may not, and may not permit any Subsidiary on or after the Issue Date to, enter
into any contract, agreement, arrangement or transaction with any Affiliate of
the Company (an "Affiliate Transaction"), or any series of related Affiliate
Transactions, other than Exempted Affiliate Transactions,
(1) unless it is determined by the Supervisory Board as evidenced by a
Board Resolution that the terms of such Affiliate Transaction are fair and
reasonable to the Company and no less favorable to the Company than could have
been obtained in an arm's length transaction with a non-Affiliate, and
(2) if involving consideration to either party in excess of
$15,000,000 (or its foreign currency equivalent), unless such Affiliate
Transaction(s) is evidenced by an Officers' Certificate addressed and delivered
to the Trustee certifying that such Affiliate Transaction (or Affiliate
Transactions) has been approved by a majority of the members of the Supervisory
Board of the Company that are disinterested in such transaction, if there are
any directors who are so disinterested, and
(3) if involving consideration to either party in excess of
$15,000,000 or $30,000,000 if there are disinterested directors (or in each case
its foreign currency equivalent), unless in addition the Company, prior to the
consummation thereof, obtains a written favorable opinion as to the fairness of
such transaction to the Company from a financial point of view from an
independent investment banking firm of national reputation in the United States
or, if pertaining to a matter for which such investment banking firms do not
customarily render such opinions, an appraisal or valuation firm of national
reputation in the United States.
SECTION 10.18 Additional Amounts. All payments made by the Company
under or with respect to the Securities will be made free and clear of and
without withholding or deduction for or on account of any present or future
Taxes imposed or levied by or on behalf of any Taxing Authority within The
Netherlands, or within any other jurisdiction in which the Company is organized
or engaged in business, or any other jurisdiction if payments on the Securities
are made from within such jurisdiction (each of the above, a "Relevant Taxing
Jurisdiction"), unless the Company is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof.
If the Company is required to withhold or deduct any amount for or on
account of Taxes (other than any estate, inheritance, gift, sales, excise,
transfer, wealth or personal property tax, or any similar non-income tax,
assessment or governmental charge) imposed by a Taxing Authority within a
Relevant Taxing Jurisdiction, from any payment made under or with respect to the
Securities, the Company will pay such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each Holder of Securities
(including Additional Amounts) after such withholding or deduction (including
any withholding or deduction in respect of such Additional Amounts) will not be
less than the amount the Holder would have received if such Taxes had not been
withheld or deducted; provided that no such Additional Amounts shall be payable
with respect to a payment made to a Holder with respect to any Tax or portion
thereof that would not have been imposed, payable or due:
(1) but for the existence of any present or former connection between
the Holder (or the beneficial owner of, or person ultimately entitled to obtain
an interest in, such Securities) and The Netherlands or other jurisdiction in
which the Company is organized or engaged in business other than the holding of
the Securities;
(2) but for the failure of the Holder to use its reasonable best
efforts to comply upon written notice by the Company delivered 60 days prior to
any payment date with a request by the Company to satisfy any certification,
identification or other reporting requirements which shall include any
applicable forms or instructions whether imposed by statute, treaty, regulation
or administrative practice concerning the nationality or residence of the Holder
or the connection of the Holder with The Netherlands or other jurisdiction in
which the Company is organized or engaged in business:
(i) provided that Holder's failure to comply with the 60 day
requirement described above shall not relieve the Company of the Company's
obligation to pay Additional Amounts if the Holder's application for any
requested certification, identification or other reporting requirement
remains Outstanding or is otherwise pending and the Holder continues to use
its reasonable best efforts to obtain such information;
(ii) provided, further that the Company shall pay any Additional
Amounts not paid on any payment date as a result of the operation of this
clause (2) upon the satisfaction of the relevant certification,
identification or other reporting requirements within 30 days after such
payment date, provided that the Company shall not, as a result of such
satisfaction occurring after the payment date, have already irrevocably
paid to the relevant taxing authority the withheld or deducted amount in
respect of which such Additional Amounts would have been payable;
(3) but for the failure of the Holder (or the beneficial individual
owner of, or individual ultimately entitled to obtain an interest in, such
Securities) who is an individual citizen or resident of a member state of the
European Union to comply with a written notice by the Company delivered 60 days
prior to any payment date with a request by the Company to provide any
certification, identification or other reporting requirement, whether imposed by
statute, treaty, regulation or administrative practice, if such action would
otherwise eliminate the requirement for the withholding or deduction of Taxes;
or
(4) if the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Securities had been the Holder of the Securities and
would not be entitled to the payment of Additional Amounts (excluding the impact
of book entry procedures by the Depository or Common Depository).
In addition, Additional Amounts will not be payable with respect to
any Tax which is payable and so paid otherwise than by withholding or deduction
from payments of, or in respect of principal of, or any interest or Liquidated
Dam ages on, the Securities. The Company will remit the full amount of any
withholdings or deductions for or on account of Taxes to the relevant Taxing
Authority in accordance with applicable law. The Company will make reasonable
efforts to obtain certified copies of tax receipts evidencing the payment of any
Taxes so deducted or withheld from each Taxing Authority imposing such Taxes.
The Company will furnish to the Holders, within 60 days after the date the
payment of any Taxes so deducted or withheld are due pursuant to applicable law,
either certified copies of tax receipts evidencing such payment by the Company
or, if such receipts are not obtainable, other evidence of such payments by the
Company. At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay Additional Amounts with respect to such payment, the Company will deliver
to the respective Trustee an Officers' Certificate stating (i) the fact that
such Additional Amounts will be payable, (ii) the amounts so payable and (iii)
such other information necessary to enable the Trustee to pay such Additional
Amounts to the Holders of Securities on the Interest Payment Date.
Wherever in this Indenture there is mentioned, in any context, the
payment of amounts based upon the principal amount of the Securities, or of
principal, premium, if any, interest or Liquidated Damages, if any, or of any
other amount payable under or with respect to any of the Securities, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
SECTION 10.19 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law, which
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest, if any, on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 10.20 Limitation on Lines of Business. Neither the Company nor
any of its Subsidiaries shall directly or indirectly engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Supervisory Board, is a Related Business.
SECTION 10.21 Limitation on Status as an Investment Company. The
Company and its Subsidiaries shall not take any action or conduct their business
and operations in such a way as would cause them to be required to register as
an "investment company" (as that term is defined in the Investment Company Act
of 1940, as amended), or would otherwise cause them to become subject to
regulation under the Investment Company Act.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption.
(1) Optional Redemption of the Securities
The Securities will be redeemable at the option of the Company, in
whole or in part, at any time or from time to time on or after August 1, 2004,
upon not less than 30 nor more than 60 days' prior notice, at the redemption
prices (ex pressed as a percentage of principal amount) set forth below, plus
accrued and unpaid interest (and Liquidated Damages, if any,) thereon, if any,
to the date of redemption:
<TABLE>
<CAPTION>
YEAR Dollar Denominated Euro Denominated
Security Redemption Security
Price Redemption Price
------------------------------- -------------------------
<S> <C> <C>
2004 ............................. 105.438% 105.458%
2005 ............................. 103.625% 103.625%
2006 ............................. 101.813% 101.813%
2007 and thereafter................... 100.000% 100.000%
</TABLE>
The Company will publish a redemption notice in accordance with the
procedures described under Section 1.6.
(2) Redemption Upon Equity Offering
Prior to August 1, 2002, upon an Equity Offering of Common Stock for
cash of the Company, up to 35% of the aggregate principal amount of each of the
Dollar Denominated Securities and the Euro Denominated Securities (determined
separately) may be redeemed at the Company's option within 90 days of such
Equity Offering, on not less than 30 days, but not more than 60 days', notice to
each Holder of the Securities to be redeemed, with cash in an amount not in
excess of the Net Cash Proceeds of such Equity Offering, at a redemption price
equal to 110.875% of the principal amount, in the case of the Dollar Denominated
Securities and 110.875% of the principal amount in the case of the Euro
Denominated Securities, in each case together with accrued and unpaid interest
and Liquidated Damages, if any, thereon to the Redemption Date; provided,
however, that immediately following such redemption not less than 65% of the
aggregate principal amount of the Dollar Denominated Securities and the Euro
Denominated Securities (determined separately) remain Outstanding and provided,
further, that such redemption shall occur within 90 days after the date of the
closing of such Equity Offering.
(3) Redemption For Changes In Withholding Taxes
The Company may, at its option, redeem all, but not less than all, of
the Securities then Outstanding, in each case at 100% of the principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption Date, if a Tax Event has occurred and is continuing. Notice of any
such redemption must be given within not less than 30 days nor more than 60 days
prior to the redemption date. No redemption pursuant to this paragraph (3) may
be made unless, prior to the publication of any notice of redemption as a result
of a Tax Event, the Company delivers to the Trustee (i) an Officer's Certificate
stating that a Tax Event has occurred (irrespective of whether the amendment or
change is then effective), describing the facts leading thereto and stating that
the Company cannot avoid the requirement to pay Additional Amounts by taking
reasonable measures available to it and (ii) an opinion of counsel reasonably
acceptable to the Trustee to the effect that the Company is or will become
obligated to pay Additional Amounts as a result of such change or amendment.
(4) Mandatory Redemption
The Company is not required to make mandatory redemption payments or
sinking fund payments with respect to the Securities.
SECTION 11.2 Applicability of Article. Redemption of Securities at the
election of the Company or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article Eleven.
SECTION 11.3 Election to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities pursuant to Section 11.1 shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities to
be redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 11.4.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 30 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities not previously called for
redemption pro rata, by lot or by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount of Securities; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Security not
redeemed to less than $1,000 or (E)1,000, as the case may be.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
SECTION 11.5 Notice of Redemption. Notice of redemption shall be given
in the manner provided for in Section 1.6 not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
Each notice of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 11.7, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal amount)
of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, that on and
after the Redemption Date, upon surrender of such Security, the Holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section 11.7)
will become due and payable upon each such Security, or the portion thereof, to
be redeemed, and that interest thereon will cease to accrue on and after said
date, and
(6) the place or places where such Securities are to be presented and
surrendered for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.6 Deposit of Redemption Price. Prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 11.7 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with accrued interest and Liquidated Damages, if
any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the interest rate borne by
the Securities.
SECTION 11.8 Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to Section 10.2 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal amount of the Security so surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may, at its option by Board Resolution, at any time
prior to the Stated Maturity of the Securities, with respect to the Securities,
elect to have either Section 12.2 or Section 12.3 be applied to all Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Company's exercise
under Section 12.1 of the option applicable to this Section 12.2, the Company
shall be deemed to have been discharged from its obligations with respect to all
Outstanding Securities on the date the conditions set forth in Section 12.4 are
satisfied (hereinafter, "Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 12.5 and the
other Sections of this Indenture referred to in clauses (A) and (B) below, and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest (and Liquidated Damages, if any) on such Securities when such
payments are due and any rights of the Holders with respect to such amounts, (B)
the Company's obligations with respect to such Securities under Sections 3.4,
3.5, 3.6, 10.2 and 10.3; (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Twelve. Subject to compliance with
this Article Twelve, the Company may exercise its option under this Section 12.2
notwithstanding the prior exercise of its option under Section 12.3 with respect
to the Securities.
SECTION 12.3 Covenant Defeasance. Upon the Company's exercise under
Section 12.1 of the option applicable to this Section 12.3, the Company shall be
released from its obligations under any covenant contained in Section 8.1 and in
Sections 10.8 through 10.18 with respect to the Outstanding Securities
("Covenant Defeasance") on and after the date the conditions set forth below are
satisfied, and the Securities shall thereafter be deemed not to be "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, Covenant Defeasance means that, with respect to the
Outstanding Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
5.1(3), 5.1(4) and 5.1(5), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 12.2 or
Section 12.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another Trustee satisfying the requirements of
Section 6.8 who shall agree to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities: (A) U.S. legal tender (with
respect to the Dollar Denominated Securities), legal tender in the countries
constituting the European Monetary Union (with respect to the Euro Denominated
Securities), or (B) U.S. Government Obligations (with respect to the Dollar
Denominated Securities), EEA Government Obligations (with respect to Euro
Denominated Securities), or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
Trustee) to pay and discharge, the principal of (and premium, if any) and
interest on the Outstanding Securities on the Stated Maturity (or Redemption
Date, if applicable) of such principal (and premium, if any) or installment of
interest; provided that the Holders of Securities must have a valid, perfected,
exclusive security interest in such trust.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of
Section 5.1 are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound.
(4) In the case of an election under Section 12.2, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable to the
Trustee stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of
this Indenture, there has been a change in the applicable U.S. federal income
tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of the Outstanding Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
Defeasance and will be subject to U.S. federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
Defeasance had not occurred.
(5) In the case of an election under Section 12.3, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable to the
Trustee to the effect that (i) the Holders of the Outstanding Securities will
not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Covenant Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of such Outstanding Securities over any other of the
Company's creditors or with the intent of defeating, hindering, delaying or
defrauding any other of the Company's creditors or others; and
(7) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to
either the Defeasance under Section 12.2 or the Covenant Defeasance under
Section 12.3 (as the case may be) have been complied with; and, in the case of
the opinion of counsel, that paragraphs (1) (with respect to the validity and
perfection of the security interest), (2), (3) and (5) of this Section 12.4 have
been complied with, and the Company shall have delivered to the Trustee an
Officers' Certificate, subject to such qualifications and exceptions as the
Trustee deems appropriate, to the effect that, assuming no Holder of the
Securities is an insider of the Company, the trust funds will not be subject to
the effect of any applicable Federal bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally.
SECTION 12.5 Deposited Money and U.S. Government Securities to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.3, all money and U.S. Government Obligations and EEA
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
12.5, the "Trustee") pursuant to Section 12.4 in respect of the Outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law.
The Company shall pay and indemnify the Trustee and (if applicable)
its officers, directors, employees and agents against any tax, fee or other
charge imposed on or assessed against the U.S. Government Securities deposited
pursuant to Section 12.4 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations or EEA Government Obligations
held by it as provided in Section 12.4 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
Defeasance or Covenant Defeasance, as applicable, in accordance with this
Article Twelve.
SECTION 12.6 Reinstatement. If the Trustee or any Paying Agent is
unable to apply any money in accordance with Section 12.5 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.2 or 12.3, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 12.5; provided, however, that if the Company makes any
payment of principal of, premium, if any, or interest on any Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Anton H.E. van Voskuijlen
----------------------------------
Name: Anton H.E. van Voskuijlen
Title:
Citibank, N.A. (London Branch),
Trustee
By: /s/ Leigh Cobb
----------------------------------
Name: Leigh Cobb
Title:
<PAGE>
EXHIBIT A
[FORM OF DOLLAR DENOMINATED SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY (AND
ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF A DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, A NOMINEE OF A DEPOSITARY, HAS AN INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY (OR ITS
PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHER WISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES. ACT. BY ITS
ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")) (A "QIB"), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH AS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS
THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S") OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES (C), (D)
AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
[If a Regulation S Security, then insert: THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE
PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE SECURITIES).
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED EXCEPT
(A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S OR (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES. BY ITS ACCEPTANCE HEREOF, THE HOLDER AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART OF ITS
INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, SITUATED IN
OR OUTSIDE THE NETHER LANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THE
CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS, BROKERS, DEALERS,
INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITUTIONAL INVESTORS AND OTHER
PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL ENTERPRISE AND FINANCE
COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN SECURITIES.
<PAGE>
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000 107/8% Senior Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ]$[ ]
United Pan-Europe Communications N.V., a company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Cede & Co., as nominee of The
Depository Trust Company or registered assigns, the principal sum of [ ] DOLLARS
or such amount as may be increased or decreased in accordance with the terms of
the Indenture and as set forth on the Schedule of Interest but not to exceed
$800,000,000 on August 1, 2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officer.
Dated: July 30, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:__________________________________
Authorized Signatory
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: July 30, 1999
This is one of the Securities referred to in the within-mentioned
Indenture.
CITIBANK, N.A.
as Trustee
By:
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000
107/8% SENIOR NOTE DUE 2009
1. Interest. United Pan-Europe Communications N.V., a public limited
liability company organized and existing under the laws of The Netherlands (the
"Company"), promises to pay, until the principal hereof is paid or made avail
able for payment, interest on the principal amount set forth on the face hereof
at a rate of 107/8% per annum. Interest hereon will accrue from and including
the most recent date to which interest has been paid or, if no interest has been
paid, from and including July 30, 1999 to but excluding the date on which
interest is paid. Interest shall be payable in arrears semi-annually on each
February 1 and August 1, commencing on February 1, 2000. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay interest on overdue principal and on overdue interest (to the full
extent permitted by law) at the rate borne by the Securities.
2. Method of Payment. The Company will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on January 15 or July 15 next preceding the Interest Payment Date
(whether or not a Business Day). Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private Indebtedness. Interest may be paid by
check mailed to the Holder entitled thereto at the address indicated on the
register maintained by the Registrar for the Securities.
3. Paying Agent and Registrar. Initially, Citibank, N.A. (London
Branch) (the "Trustee") and Citibank, N.A. (New York Branch) will act as Paying
Agent and Registrar and Banque Internationale a Luxembourg will act as Paying
Agent in Luxembourg. The Company may change any Paying Agent or Registrar
without notice. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar.
4. Indenture. The Company issued $800,000,000 107/8% Senior Notes due
2009 (the "Securities") under an Indenture dated as of [ ] (the "Indenture")
between the Company and the Trustee. This is one of an issue of Securities of
the Company issued, or to be issued, under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb), as amended from time to time. The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of them. Capitalized and certain other terms used herein and not
otherwise defined have the meanings set forth in the Indenture. To the extent of
any conflict between the terms of the Securities and the Indenture, the
applicable terms of the Indenture shall govern.
5. Additional Amounts. The Company will pay to the Holders of
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
6. Optional Redemption of the Securities. The Securities will be
redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after August 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of principal amount) if redeemed during the
12- month period commencing on August 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
Dollar Denominated
Security
Redemption
YEAR Price
--------------------------- -
2004 ........................... 105.438%
2005 ........................... 103.625%
2006 ........................... 101.813%
2007 and thereafter................. 100.000%
7. Redemption Upon Equity Offering. Prior to August 1, 2002, upon an
Equity Offering of Common Stock for cash of the Company, up to 35% of the
aggregate principal amount of each of the Dollar Denominated Securities and Euro
Denominated Securities (determined separately) may be redeemed at the Company's
option within 90 days of such Equity Offering, on not less than 30 days', but
not more than 60 days', notice to each Holder of the Securities to be redeemed,
with cash in an amount not in excess of the Net Cash Proceeds of such Equity
Offering, at a Redemption Price equal to 110.875% of the principal amount of the
Securities redeemed, together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Redemption Date; provided, however, that
immediately following such redemption not less than 65% of the aggregate
principal amount of the Dollar Denominated Securities and the Euro Denominated
Securities (determined separately) remain Outstanding and provided, further,
that such redemption shall occur within 90 days after the date of the closing of
such Equity Securities.
8. Redemption for Changes in Withholding Taxes. The Company may, at
its option, redeem all, but not less than all, of the Securities then
Outstanding, in each case at 100% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the Redemption
Date, if a Tax Event has occurred and is continuing.
9. Mandatory Redemption. The Company is not required to make mandatory
redemption payments or sinking fund payments with respect to the Securities.
10. Notice of Redemption. Notice of redemption will be mailed within
not less than 30 days nor more than 60 days prior to the Redemption Date to each
Holder of Securities to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Securities or portions thereof called for
redemption.
11. Purchase of Securities upon Change of Control. The Indenture
provides that upon the occurrence of a Change of Control and subject to further
limitations contained therein, the Company shall make an offer to purchase Out
standing Securities in accordance with the procedures set forth in the
Indenture.
12. Registration Rights. Pursuant to a Registration Rights Agreement,
dated July 30, 1999, among the Company and the Initial Purchasers named therein,
the Company will be obligated to consummate an Exchange Offer pursuant to which
the Holder of this Security shall have the right to exchange this Security for
notes of a separate series issued under the Indenture which have been registered
under the Securities Act, in like principal amount and having substantially
identical terms as the Securities. The Holders shall be entitled to receive
certain payments in the event such Exchange Offer is not consummated
("Liquidated Damages") and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
13. Denominations, Transfer, Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. Under certain
circumstances set forth in the Indenture, the Registrar need not register the
transfer of or exchange any Securities.
14. Persons Deemed Owners. The registered Holder of this Security may
be treated as the owner of this Security for all purposes.
15. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its written request. After that, all liability of
the Trustee and any such Paying Agent with respect to such money shall cease.
16. Amendment, Supplement, Waiver, Etc. The Company and the Trustee
may, without the consent of the Holders of any Outstanding Securities, amend,
waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities and with other holders of notes of other series issued
under the Indenture, subject to certain exceptions requiring the consent of the
Holders of the particular Securities to be affected.
17. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make Restricted Payments, make certain Investments,
create or incur Liens, enter into transactions with Affiliates, enter into
agreements restricting the ability of Subsidiaries to pay dividends and make
distributions and on the ability of the Company to merge or consolidate with any
other person or transfer all or substantially all of the Company's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to the Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
18. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the Company) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
under the Indenture may, by written notice to the Trustee and the Company, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall, declare all principal of
and accrued interest on all Securities to be immediately due and payable and
such amounts shall become immediately due and payable.
19. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
20. No Recourse Against Others. No board member, director, officer,
employee, agent, authorized representative, incorporator or shareholder of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture for a claim based on, in respect of, or by reason
of, such obligations or their creation by reason of his, her or its status as
such. Each Holder of Securities by accepting a Security waivers and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
21. Discharge. The Company's obligations pursuant to the Indenture
will be discharged, except for obligations pursuant to certain provisions
thereof, subject to the terms of the Indenture, upon the payment of all the
Securities or upon the irrevocable deposit with the Trustee of U.S. Dollars or
U.S. Government Securities denominated in U.S. Dollars sufficient to pay when
due principal of and interest on the Securities to maturity or redemption.
22. Authentication. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
23. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT LIMITATION
SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to the Indenture or
the Securities.
24. Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
25. Currency of Account. U.S. Dollars are the sole currency of account
and payment for all sums payable by the Company under the Securities.
26. CUSIP, ISIN and Common Code Numbers. The Company has caused CUSIP,
ISIN and Common Code numbers, as applicable, to be printed on the Securities and
the Trustee may use CUSIP, ISIN or Common Code numbers, as applicable, in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed hereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
Fred.Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attn: Treasurer
<PAGE>
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
of
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
|_| (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
|_| (b) this Security is being transferred other than in accordance with
(a) above and documents, including a transferee certificate
substantially in the form attached hereto, are being furnished which
comply with the conditions of transfer set forth in this Security and
the Indenture.
<PAGE>
If neither of the foregoing boxes is checked and, in the case of (b) above,
if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: Your signature:
(Sign exactly as your name appears on the other
side of this Security)
By:
NOTICE: To be executed by an executive officer
Signature Guaranteed:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program acceptable to the Trustee)
<PAGE>
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:
NOTICE: To be executed by an
executive officer
<PAGE>
<TABLE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
Principal
Amount of Amount of Amount
decrease in increase in at maturity
Principal Principal of this
Amount Amount Global Secu-
at maturity at maturity rity Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ------------------- -------------------- ------------------ -------------------- -----------------
<S> <C> <C> <C> <C>
Initial bal- $ [ ]
ance as of
07/30/99
</TABLE>
<PAGE>
EXHIBIT B
[FORM OF EURO DENOMINATED SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY (AND
ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF A DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, A NOMINEE OF A DEPOSITARY, HAS AN INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY (OR ITS
PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES. ACT. BY ITS
ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")) (A "QIB"), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH AS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS
THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S") OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES (C), (D)
AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
[If a Regulation S Security, then insert: THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE
PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE SECURITIES).
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED EXCEPT
(A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S OR (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES. BY ITS ACCEPTANCE HEREOF, THE HOLDER AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART OF ITS
INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, SITUATED IN
OR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THE
CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS, BROKERS, DEALERS,
INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITUTIONAL INVESTORS AND OTHER
PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL ENTERPRISE AND FINANCE
COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN SECURITIES.
<PAGE>
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000 107/8% Senior Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ]$[ ]
United Pan-Europe Communications N.V., a company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Cede & Co., as nominee of The
Depository Trust Company or registered assigns, the principal sum of FIFTEEN
MILLION ONE HUNDRED EIGHTY-FIVE THOUSAND DOLLARS or such amount as may be
increased or decreased in accordance with the terms of the Indenture and as set
forth on the Schedule of Interest but not to exceed $800,000,000 on August 1,
2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officer.
Dated: July 30, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:__________________
Authorized Signatory
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: July 30, 1999
This is one of the Securities referred to in the within-
mentioned Indenture.
CITIBANK, N.A.
Not in its individual capacity, but solely as Trustee
By:
Authorized Signatory
<PAGE>
REVERSE OF NOTE
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000
107/8% SENIOR NOTE DUE 2009
1. Interest. United Pan-Europe Communications N.V., a public limited
liability company organized and existing under the laws of The Netherlands (the
"Company"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 107/8% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including July 30, 1999 to but excluding the
date on which interest is paid. Interest shall be payable in arrears
semi-annually on each February 1 and August 1, commencing on February 1, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at the rate borne by the
Securities.
2. Method of Payment. The Company will pay interest hereon (except
defaulted interest) to the Persons who are registered Holders at the close of
business on January 15 or July 15 next preceding the Interest Payment Date
(whether or not a Business Day). Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company will pay principal and interest
in money of the United States of America that at the time of payment is legal
tender for payment of public and private Indebtedness. Interest may be paid by
check mailed to the Holder entitled thereto at the address indicated on the
register maintained by the Registrar for the Securities.
3. Paying Agent and Registrar. Initially, Citibank, N.A. (London
Branch) (the "Trustee") and Citibank, N.A. (New York Branch) will act as Paying
Agent and Registrar and Banque Internationale a Luxembourg will act as Paying
Agent in Luxembourg. The Company may change any Paying Agent or Registrar
without notice. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar.
4. Indenture. The Company issued $800,000,000 107/8% Senior Notes due
2009 (the "Securities") under an Indenture dated as of July 30, 1999 (the
"Indenture") between the Company and the Trustee. This is one of an issue of
Securities of the Company issued, or to be issued, under the Indenture. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code ss.ss. 77aaa-77bbbb), as amended from time to time. The Securities are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of them. Capitalized and certain other terms used herein and
not otherwise defined have the meanings set forth in the Indenture. To the
extent of any conflict between the terms of the Securities and the Indenture,
the applicable terms of the Indenture shall govern.
5. Additional Amounts. The Company will pay to the Holders of
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
6. Optional Redemption of the Securities. The Securities will be
redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after August 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of principal amount) if redeemed during the
12- month period commencing on August 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
Dollar Denominated
Security
Redemption
YEAR Price
--------------------------- -
2004 ........................... 105.438%
2005 ........................... 103.625%
2006 ........................... 101.813%
2007 and thereafter................. 100.000%
7. Redemption Upon Equity Offering. Prior to August 1, 2002, upon an
Equity Offering of Common Stock for cash of the Company, up to 35% of the
aggregate principal amount of each of the Dollar Denominated Securities and Euro
Denominated Securities (determined separately) may be redeemed at the Company's
option within 90 days of such Equity Offering, on not less than 30 days', but
not more than 60 days', notice to each Holder of the Securities to be redeemed,
with cash in an amount not in excess of the Net Cash Proceeds of such Equity
Offering, at a Redemption Price equal to 110.875% of the principal amount of the
Securities redeemed, together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Redemption Date; provided, however, that
immediately following such redemption not less than 65% of the aggregate
principal amount of the Dollar Denominated Securities and the Euro Denominated
Securities (determined separately) remain Outstanding and provided, further,
that such redemption shall occur within 90 days after the date of the closing of
such Equity Securities.
8. Redemption for Changes in Withholding Taxes. The Company may, at
its option, redeem all, but not less than all, of the Securities then
Outstanding, in each case at 100% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the Redemption
Date, if a Tax Event has occurred and is continuing.
9. Mandatory Redemption. The Company is not required to make mandatory
redemption payments or sinking fund payments with respect to the Securities.
10. Notice of Redemption. Notice of redemption will be mailed within
not less than 30 days nor more than 60 days prior to the Redemption Date to each
Holder of Securities to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue on Securities or portions thereof called for
redemption.
11. Purchase of Securities upon Change of Control. The Indenture
provides that upon the occurrence of a Change of Control and subject to further
limitations contained therein, the Company shall make an offer to purchase
Outstanding Securities in accordance with the procedures set forth in the
Indenture.
12. Registration Rights. Pursuant to a Registration Rights Agreement,
dated July 30, 1999, among the Company and the Initial Purchasers named therein,
the Company will be obligated to consummate an Exchange Offer pursuant to which
the Holder of this Security shall have the right to exchange this Security for
notes of a separate series issued under the Indenture which have been registered
under the Securities Act, in like principal amount and having substantially
identical terms as the Securities. The Holders shall be entitled to receive
certain payments in the event such Exchange Offer is not consummated
("Liquidated Damages") and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
13. Denominations, Transfer, Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. Under certain
circumstances set forth in the Indenture, the Registrar need not register the
transfer of or exchange any Securities.
14. Persons Deemed Owners. The registered Holder of this Security may
be treated as the owner of this Security for all purposes.
15. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its written request. After that, all liability of
the Trustee and any such Paying Agent with respect to such money shall cease.
16. Amendment, Supplement, Waiver, Etc. The Company and the Trustee
may, without the consent of the Holders of any Outstanding Securities, amend,
waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities and with other holders of notes of other series issued
under the Indenture, subject to certain exceptions requiring the consent of the
Holders of the particular Securities to be affected.
17. Restrictive Covenants. The Indenture imposes certain limitations
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make Restricted Payments, make certain Investments,
create or incur Liens, enter into transactions with Affiliates, enter into
agreements restricting the ability of Subsidiaries to pay dividends and make
distributions and on the ability of the Company to merge or consolidate with any
other person or transfer all or substantially all of the Company's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to the Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
18. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the Company) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
under the Indenture may, by written notice to the Trustee and the Company, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall, declare all principal of
and accrued interest on all Securities to be immediately due and payable and
such amounts shall become immediately due and payable.
19. Trustee Dealings with Company. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
20. No Recourse Against Others. No board member, director, officer,
employee, agent, authorized representative, incorporator or shareholder of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture for a claim based on, in respect of, or by reason
of, such obligations or their creation by reason of his, her or its status as
such. Each Holder of Securities by accepting a Security waivers and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
21. Discharge. The Company's obligations pursuant to the Indenture
will be discharged, except for obligations pursuant to certain provisions
thereof, subject to the terms of the Indenture, upon the payment of all the
Securities or upon the irrevocable deposit with the Trustee of U.S. Dollars or
U.S. Government Securities denominated in U.S. Dollars sufficient to pay when
due principal of and interest on the Securities to maturity or redemption.
22. Authentication. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
23. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT LIMITATION
SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to the Indenture or
the Securities.
24. Abbreviations. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
25. Currency of Account. U.S. Dollars are the sole currency of account
and payment for all sums payable by the Company under the Securities.
26. CUSIP, ISIN and Common Code Numbers. The Company has caused CUSIP,
ISIN or Common Code numbers, as applicable, to be printed on the Securities and
the Trustee may use CUSIP, ISIN or Common Code numbers, as applicable, in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed hereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attn: Treasurer
<PAGE>
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
of
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
|_| (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
|_| (b) this Security is being transferred other than in accordance with
(a) above and documents, including a transferee certificate
substantially in the form attached hereto, are being furnished which
comply with the conditions of transfer set forth in this Security and
the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b) above,
if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: Your signature:
(Sign exactly as your name appears on the other
side of this Security)
By:
NOTICE: To be executed by an executive officer
Signature Guaranteed:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program acceptable to the Trustee)
<PAGE>
6 TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:
NOTICE: To be executed by an
executive officer
<PAGE>
<TABLE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
<CAPTION>
Principal
Amount of Amount of Amount
decrease in increase in at maturity
Principal Principal of this
Amount Amount Global Secu-
at maturity at maturity rity Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ------------------- -------------------- ------------------ -------------------- -----------------
<S> <C> <C> <C> <C>
Initial bal- $ [ ]
ance as of
07/30/99
</TABLE>
EXHIBIT C
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Sections 3.13(b)(ii) and 3.13(c)(ii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
RE: UNITED PAN-EUROPE COMMUNICATIONS N.V. 107/8% SENIOR NOTES DUE
2009 (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, (the "INDENTURE"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "SECURITIES ACT") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][(E)]______ principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
[CUSIP][CINS][ISIN] No(s). ________________________________
CERTIFICATE No(s). _________________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
1. the Owner is not a distributor of the Specified Securities, an Affiliate
of the Company or any such distributor or a person acting on behalf of any of
the foregoing;
2. the offer of the Specified Securities was not made to a person in the
United States;
3. either:
(a) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its behalf
reasonably believed that the Transferee was outside the United States; or
(b) the transaction is being executed in, on or through the facilities
of the Eurobond market, as regulated by the Association of International Bond
Dealers, or another designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the transactions have been
prearranged with a buyer in the United States;
4. no directed selling efforts have been made in the United States by or on
behalf of the Owner or any Affiliate thereof;
5. if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified Securities,
and the transfer is to occur during the Restricted Period, then the requirements
of Rule 904(c)(1) have been satisfied;
6. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
7. upon completion of the transaction, the beneficial interest being
transferred will be held through an Agent Member acting for and on behalf of
Euroclear or Cedelbank.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY
(Transfers Pursuant to Sections 3.13(b)(iii) and 3.13(c)(iii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
RE: UNITED PAN-EUROPE COMMUNICATIONS N.V. 107/8% SENIOR NOTES DUE
2009 (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, ( the "INDENTURE"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "SECURITIES ACT") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][(E)]_____ principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance
with Rule 904:
(A) the Owner is not a distributor of the Specified Securities, an
Affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a person in
the United States;
(C) either:
(i) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was outside the United
States; or
(ii) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on its behalf knows
that the transactions has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United States by
or on behalf of the Owner or any Affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period, then
the requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after [date one year after the latest
date of issuance of any of the Specified Securities] and is being effected
in accordance with the applicable amount, manner of sale and notice
requirements of Rule 144; or
(B) the transfer is occurring after [date two years after the latest
date of issuance of any of the Specified Securities] and the Owner is not,
and during the preceding three months has not been, an Affiliate of the
Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
<PAGE>
EXHIBIT E
FORM OF TRANSFER CERTIFICATE --
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers to QIBs Pursuant to Sections 3.13(b)(iv) and
3.13(c)(iv) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
RE: UNITED PAN-EUROPE COMMUNICATIONS N.V 107/8% SENIOR NOTES DUE
2009 (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A. as trustee, (the "Indenture"). Terms used
but not defined herein and defined in Regulation S under the U.S. Securities Act
of 1933 (the "SECURITIES ACT") or in the Indenture shall have the meanings given
to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][(E)]______ principal amount of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of an interest in
the Restricted Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
144A under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) the Specified Securities are being transferred to a person that the
Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(2) the Owner and any person acting on its behalf have taken reasonable
steps to ensure that the Transferee is aware that the Owner may be relying
on Rule 144A in connection with the transfer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
<PAGE>
EXHIBIT F
UNITED PAN-EUROPE
COMMUNICATIONS N.V.
OFFICERS' CERTIFICATE
[Name], [title(s)] of United Pan-Europe Communications N.V. a public
limited liability company organized and existing under the laws of The
Netherlands (the "Company"), and [name], [title(s)] of the Company, hereby
certify pursuant to Sections ____ and ____ of the Indenture, dated as of
___________, ____ (the "Indenture"), between the Company and Citibank, N.A., as
trustee (the "Trustee"), that:
(i) he or she has read and understands the provisions of the Indenture and
the definitions relating thereto, (ii) the statements made in this Officers'
Certificate are based upon an examination of the provisions of the Indenture and
upon the relevant books and records of the Company, (iii) in his or her opinion,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not the covenants and
conditions of the Indenture relating to the [authentication of the Securities]
[execution of the Indenture] [OTHER] have been complied with and (iv) in his or
her opinion, such covenants and conditions have been complied with.
IN WITNESS WHEREOF, each of the undersigned has executed this Certificate
on this ____ day of ____________, ____.
By:
Name:
Titles:
By:
Name:
Titles:
<PAGE>
EXHIBIT G
[Date]
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Ladies and Gentlemen:
We have acted as special counsel to United Pan-Europe Communications N.V.,
a company with limited liability organized and existing under the laws of The
Netherlands (the "Company"), in connection with the [initial issuance and sale
by the Company of $800,000,000 aggregate principal amount of the Company's
107/8% Senior Notes due 2009 and its (E)300,000,000 aggregate principal amount
of the Company's 107/8% Senior Notes due 2009 (collectively, the "Securities"),
which will be issued under an Indenture, dated as of July 30, 1999 (the
"Indenture"), between the Company and Citibank, N.A. as trustee (the
"Trustee")].
This opinion is being furnished to your pursuant to Sections ____ and ____
of the Indenture.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such letter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to any
facts material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements or
representations of officers and other representatives of the Company and others.
Pursuant to Sections ____ and ____ of the Indenture, we advise you that in
our opinion:
1. We have reviewed Article __ of the Indenture setting forth certain
provisions of general application, and in particular, the pertinent provisions
of Section ___ of the Indenture setting forth the definitions of certain terms,
and Sections ___ and ___ of the Indenture providing that the Trustee is entitled
to receive an Officers' Certificate and an Opinion of Counsel in connection with
any request by the Company to take any action and setting forth certain
requirements with respect to the forms of such documents. We have also reviewed
Article ___ of the Indenture, pertaining to ____.
2. In our opinion, we have made such examination or investigation
(including an examination of the Officers' Certificate of the Company, dated as
of the date hereof, as to the matters addressed in Sections ___ and ___ of the
Indenture) as we deem necessary to enable us to express an informed opinion as
to whether or not the conditions precedent to [the authentication of the
Securities] [the execution of the Indenture] [OTHER] under Section ___ of the
Indenture have been complied with.
3. In our opinion, the conditions precedent to be satisfied with respect to
the [authentication of the Securities] [execution of the Indenture] [OTHER]
under Section __ of the Indenture have been complied with.
Members of our firm are admitted to the bar in the States of ______ and New
York, and we do not express any opinion as to the laws of any jurisdiction other
than the laws of such States and the General Corporation Law of the State of
Delaware and the laws of the United States of America.
This opinion is furnished to you solely for your benefit in connection with
the [authentication of the Securities] [execution of the Indenture] [OTHER] and
is not to be relied upon by any other person without our express written
permission.
Very truly yours,
<PAGE>
EXHIBIT H
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
(Transfers Pursuant to Section 3.14(a) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: UNITED PAN-EUROPE COMMUNICATIONS N.V 107/8% SENIOR NOTES
DUE 2009 (THE "SECURITIES")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A. as trustee (the "INDENTURE"). Terms used
but not defined herein have the meanings given to them in the Indenture.
This certificate relates to [U.S. $] [(E)]____ principal amount of
Securities, which are evidenced by the following certificate(s) (the
"SECURITIES"):
1. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold except as permitted in the following sentence. We understand and agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Securities are being offered only in a
transaction not involving any public offering within two years after the date of
the original issuance of the Securities or if within three months after we cease
to be an affiliate (within the meaning of Rule 144 under the Securities Act) of
the Company, such Securities may be resold, pledged or transferred only (i) to
the Company, (ii) so long as the Securities are eligible for resale pursuant to
Rule 144A under the Securities Act ("Rule 144A"), to a person whom we reasonably
believe is a "qualified institution buyer" (as defined in Rule 144A) ("QIB")
that purchases for its own account or for the account of a QIB to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule 144A
(as indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the certificate for the Securities), (iii) in an
offshore transaction in accordance with Regulation S under the Securities Act
(as indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the Note if the Note is not in book-entry form), and,
if such transfer is being effected by certain transferors prior to the
expiration of the "40-day distribution compliance period" (within the meaning of
Rule 903(b)(2) of Regulation S under the Securities Act), a certificate that may
be obtained from the Trustee is delivered by the transferee, (iv) to an
institution that is an "accredited investor" as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the certificate for
the Securities) which has certified to the Company and the Trustee for the
Securities that it is such an accredited investor and is acquiring the
Securities for investment purposes and not for distribution (provided that no
Securities purchased from a foreign purchaser or from any person other than a
QIB or an institutional accredited investor pursuant to this clause (iii) shall
be permitted to transfer any Securities so purchased to an institutional
accredited investor pursuant to this clause (iv) prior to the expiration of the
"applicable restricted period" (within the meaning of Regulation S under the
Securities Act), (v) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities Act, or
(vi) pursuant to an effective registration statement under the Securities Act,
in each case in accordance with any applicable securities laws of any state of
the United States, and we will notify any purchaser of the Securities from us of
the above resale restriction, if then applicable. We further understand that in
connection with any transfer of the Securities by us that the Company and the
Trustee for the Securities may request, and if so requested we will furnish,
such certificates, legal opinions and other information as they may reasonably
require to confirm that any such transfer complies with the foregoing
restrictions.
2. We are able to fend for ourselves in the transactions contemplated
by this Offering Circular, we have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are acting
are each able to bear the economic risk of our or its investment and can afford
the complete loss of such investment.
3. We understand that the Company, Goldman Sachs International,
Donaldson, Lufkin & Jenrette Securities International, Morgan Stanley & Co.
International Limited, TD Securities (USA) Inc., Bank of America International
Limited, Chase Manhattan International Limited, CIBC World Markets Corp., Credit
Suisse First Boston (Europe) Limited, Merrill Lynch International and Salomon
Brothers International Limited as the initial purchasers of the Securities
("Initial Purchasers"), and others will rely upon the truth and accuracy of the
foregoing acknowledgments, representations and agreements and we agree that if
any of the acknowledgments, representations and warranties deemed to have been
made by us by our purchase of Securities, for our own account or of one or more
accounts as to each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company and the Initial
Purchasers.
4. We are acquiring the Securities purchased by us for investment
purposes and not for distribution of our own account or for one or more accounts
as to each of which we exercise sole investment discretion and we are or such
account is an institutional "accredited investor" (as defined in rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act).
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
Date:
<PAGE>
EXHIBIT I
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 of the Indenture, check the box:
|_| Section 10.10
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.10 of the Indenture, state the amount: [$ (multiple of
$1000)] [(E) (multiple of (E) 1000)]
Dated: Your Signature:
(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program acceptable to the Trustee)
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Issuer
CITIBANK, N.A. (London Branch)
Trustee
--------------------
Indenture
Dated as of July 30, 1999
---------------------
$735,000,000 12 1/2 % Senior Discount Notes Due 2009
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions....................................................1
SECTION 1.2 Compliance Certificates and Opinions..........................40
SECTION 1.3 Form of Documents Delivered to Trustee........................40
SECTION 1.4 Acts of Holders...............................................41
SECTION 1.5 Notices.......................................................43
SECTION 1.6 Notice to Holders; Waiver.....................................44
SECTION 1.7 Effect of Headings and Table of Contents......................45
SECTION 1.8 Successors and Assigns........................................45
SECTION 1.9 Separability Clause...........................................45
SECTION 1.10 Benefits of Indenture.........................................45
SECTION 1.11 Governing Law.................................................45
SECTION 1.12 Conflict with Trust Indenture Act.............................46
SECTION 1.13 Legal Holidays................................................46
SECTION 1.14 No Personal Liability of Board Members, Officers,
Employees and Shareholders....................................47
SECTION 1.15 Independence of Covenants.....................................47
SECTION 1.16 Exhibits......................................................47
SECTION 1.17 Counterparts..................................................47
SECTION 1.18 Duplicate Originals...........................................47
SECTION 1.19 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities..........................................47
SECTION 1.20 Judgment Currency.............................................48
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally...............................................49
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms...............................................50
SECTION 3.2 Denominations.................................................50
SECTION 3.3 Execution, Authentication, Delivery and Dating................51
SECTION 3.4 Temporary Securities..........................................54
SECTION 3.5 Registration, Registration of Transfer and Ex
change........................................................55
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities..............56
SECTION 3.7 Payment of Interest; Interest Rights Preserved................57
SECTION 3.8 Persons Deemed Owners.........................................58
SECTION 3.9 Cancellation..................................................59
SECTION 3.10 Computation of Interest.......................................59
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers.................................59
SECTION 3.12 Book-Entry Provisions for Global Securities,
Certificated Securities.......................................59
SECTION 3.13 Transfer and Exchange of Securities...........................60
SECTION 3.14 Special Transfer Provisions...................................67
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.......................68
SECTION 4.2 Application of Trust Money....................................70
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.............................................70
SECTION 5.2 Acceleration of Maturity; Rescission and Annul
ment..........................................................72
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee....................................................73
SECTION 5.4 Trustee May File Proofs of Claim..............................74
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities.................................................75
SECTION 5.6 Application of Money Collected................................75
SECTION 5.7 Limitation on Suits...........................................75
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest..........................................76
SECTION 5.9 Restoration of Rights and Remedies............................76
SECTION 5.10 Rights and Remedies Cumulative................................77
SECTION 5.11 Delay or Omission Not Waiver..................................77
SECTION 5.12 Control by Holders............................................77
SECTION 5.13 Waiver of Past Defaults.......................................78
SECTION 5.14 Waiver of Stay or Extension Laws..............................78
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities...........................79
SECTION 6.2 Notice of Default.............................................80
SECTION 6.3 Certain Rights of Trustee.....................................80
SECTION 6.4 Trustee Not Responsible for Issuance of Securities...........82
SECTION 6.5 May Hold Securities...........................................82
SECTION 6.6 Money Held in Trust...........................................82
SECTION 6.7 Compensation and Reimbursement................................82
SECTION 6.8 Corporate Trustee Required; Eligibility; Conflicting
Interests.....................................................83
SECTION 6.9 Resignation and Removal; Appointment of Successor.............84
SECTION 6.10 Acceptance of Appointment by Successor........................86
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business...................................................86
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders..................87
SECTION 7.2 Reports by Trustee............................................87
SECTION 7.3 Reports by Company............................................88
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms.........................................................88
SECTION 8.2 Successor Substituted.........................................89
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders.........................89
SECTION 9.2 Indentures with Consent of Holders............................90
SECTION 9.3 Execution of Indenture........................................91
SECTION 9.4 Effect of Indentures..........................................92
SECTION 9.5 Conformity with Trust Indenture Act...........................92
SECTION 9.6 Reference in Securities to Indentures.........................92
SECTION 9.7 Notice of Indentures..........................................92
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and Interest...........93
SECTION 10.2 Maintenance of Office or Agency...............................93
SECTION 10.3 Money for Security Payments to Be Held in Trust...............94
SECTION 10.4 Corporate Existence...........................................96
SECTION 10.5 Payment of Taxes and Other Claims.............................96
SECTION 10.6 Maintenance of Properties.....................................96
SECTION 10.7 Insurance.....................................................97
SECTION 10.8 Provision of Financial Statements.............................97
SECTION 10.9 Statement by Officers as to Default...........................98
SECTION 10.10 Purchase of Securities upon Change of Control.................98
SECTION 10.11 Limitation on Incurrence of Additional Indebtedness
and Disqualified Capital Stock...............................102
SECTION 10.12 Limitation on Restricted Payments............................105
SECTION 10.13 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries..........................107
SECTION 10.14 Limitation on Liens Securing Indebtedness....................109
SECTION 10.15 Limitation on Issuances of Guarantees by Subsidiaries........109
SECTION 10.16 Limitation on Sale of Assets and Subsidiary Stock............110
SECTION 10.17 Limitation on Transactions with Affiliates...................115
SECTION 10.18 Additional Amounts...........................................115
SECTION 10.19 Waiver of Stay, Extension or Usury Laws......................118
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption..........................................119
SECTION 11.2 Applicability of Article.....................................121
SECTION 11.3 Election to Redeem; Notice to Trustee........................121
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed............121
SECTION 11.5 Notice of Redemption.........................................121
SECTION 11.6 Deposit of Redemption Price..................................122
SECTION 11.7 Securities Payable on Redemption Date........................122
SECTION 11.8 Securities Redeemed in Part..................................123
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance...................................................123
SECTION 12.2 Defeasance and Discharge.....................................123
SECTION 12.3 Covenant Defeasance..........................................124
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance..............125
SECTION 12.5 Deposited Money and U.S. Government Securities
to Be Held in Trust; Other Miscellaneous Provisions..........126
SECTION 12.6 Reinstatement................................................127
EXHIBIT A...................................................................A-1
EXHIBIT B...................................................................B-1
EXHIBIT C...................................................................C-1
EXHIBIT D...................................................................D-1
EXHIBIT E...................................................................E-1
EXHIBIT F...................................................................F-1
EXHIBIT G...................................................................G-1
EXHIBIT H...................................................................H-1
<PAGE>
INDENTURE, dated as of July 30, 1999 by and between United Pan- Europe
Communications N.V., a public limited liability company organized and existing
under the laws of The Netherlands (herein called the "Company"), having its
principal office at Fred. Roeskestraat 123, 1076 EE Amsterdam, The Netherlands,
and Citibank, N.A. (London Branch), as Trustee (herein called the "Trustee").
Each party agreed as follows for the benefit of the other party and for the
equal and rateable benefit of the Holders (as defined below) of the Company's 12
1/2% Senior Discount Notes due 2009 denominated in U.S. Dollars:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the SEC adopted under the Trust
Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with "GAAP" as defined in this
section 1.1;
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section, paragraph or other subdivision; and
(e) unless otherwise indicated, references to Articles, Sections,
paragraphs or other subdivisions are references to such Articles, Sections,
paragraphs or other subdivisions of this Indenture.
"Acceleration Notice" has the meaning set forth in Section 5.2.
"Accreted Value" means, as of any date of determination, (i) prior to
August 1, 2004, the sum (rounded to the nearest whole dollar) of (a) the initial
offering price ($545.21 per $1,000 in principal amount at maturity of Senior
Discount Notes) of the Senior Discount Notes and (b) the portion of the excess
of the principal amount of Senior Discount Notes over such initial offering
price which shall have been accreted thereon through such date, such amount to
be so accreted on a daily basis at the rate of 12 1/2% per annum compounded
semi-annually on each February 1 and August 1 from the date of issuance of the
Senior Discount Notes through the date of determination, and (ii) on and after
August 1, 2004, the principal amount at maturity of Senior Discount Notes.
"Acquired Indebtedness" means Indebtedness (including Disqualified Capital
Stock) of any Person existing at the time such Person becomes a Subsidiary of
the Company, including by designation, or is merged or consolidated into or with
the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any Person or all
or substantially all the assets of any Person by any other Person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.18.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that with respect to ownership interest in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to constitute
control.
"Agent Member" means, with respect to any Depositary, any member of, or
participant in, such Depositary.
"Applicable Procedures" has the meaning set forth in Section 3.13(b)(ii).
"Annualized Consolidated EBITDA" means Consolidated EBITDA for the
Reference Period multiplied by four.
"Asset Acquisition" means (i) an Investment or capital contribution (by
means of transfers of cash or other property to others or payments for property
or services of the account or use of others, or otherwise) by the Company or any
Subsidiary in any other Person, or any acquisition or purchase of Capital Stock
of another Person by the Company or any Subsidiary, or (ii) an acquisition by
the Company or any Subsidiary of the property and assets (other than Capital
Stock) of any Person other than the Company or any Subsidiary which constitute
substantially all of a division, operating unit or line of business of such
Person or which is otherwise outside the ordinary course of business.
"Asset Sale" has the meaning set forth in Section 10.16.
"Average Life" means, as of the date of determination, with respect to any
security or instrument, the quotient obtained by dividing (1) the sum of the
products (a) of the number of years from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (2) the sum of all such principal (or redemption)
payments.
"Beneficial Owner" or "beneficial owner" for purposes of the definition of
"Change of Control" and "Affiliate" has the meaning attributed to it in Rules
13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue Date), whether
or not applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"Board Resolution" means a copy of a resolution certified by a managing
director or other authorized officer, assistant officer or representative of the
Company to have been duly adopted by the Supervisory Board of the Company and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York and
Amsterdam, The Netherlands are authorized or obligated by law or executive order
to close.
"Capital Contribution" means any contribution to the equity of the Company
from a direct or indirect parent of the Company for which no consideration other
than the issuance of Qualified Capital Stock is paid.
"Capitalized Lease Obligation" means, as to any Person, the obligations of
such Person under a lease that are required to be classified and accounted for
as capital lease obligations under GAAP and, for purposes of this definition,
the amount of such obligations at any date shall be the capitalized amount of
such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Corporation, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that Corporation.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or insured by
(i) the United States of America or any agency or instrumentality thereof
or (ii) any member of the European Economic Area or Switzerland, or any,
agency or instrumentality thereof provided that such country, agency or
instrumentality has a credit rating at least equal to that of the United
States of America (provided that, in each case, the full faith and credit
of such respective nation is pledged in support thereof), or
(2) time deposits and certificates of deposit and commercial paper
issued by the parent Corporation of any domestic (United States) commercial
bank of recognized standing having capital and surplus in excess of
$500,000,000 (or the foreign currency equivalent thereof), or
(3) commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or the
equivalent thereof by Moody's Investors Service, Inc.
and in the case of each of (1), (2), and (3) maturing within one year after the
date of acquisition, or
(4) Euro or Dollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceeding six months, and overnight bank deposits, in each case with any
domestic (United States) commercial bank (including the Trustee) having
capital and surplus in excess of $500,000,000 (or the foreign currency
equivalent thereof) and a Keefe Bank Watch Rating of "B" or better;
provided, in the case of (1) through (4), that with respect to any
non-domestic Person, Cash Equivalents shall also mean those investments
that are comparable to clauses (ii) and (iv) above in such Person's country
of organization or country where it conducts business operations.
"Cedelbank" means Cedelbank.
"Certificated Security" means any certificated Security in fully registered
definitive form.
"Change of Control" means any merger or consolidation of the Company with
or into any Person or any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the Company's assets, on a Consolidated
basis, in one transaction or a series of related transactions, if, immediately
after giving effect to such transaction(s), either
(A) any "person" or "group" (other than the Parent or any of the
Principals) is or becomes the "beneficial owner", directly or indirectly,
of more than 35% of the total voting power of all classes of the Company's
securities in the aggregate normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee(s) or
surviving entity or entities and such "person" or "group" beneficially owns
(after giving effect to such transaction) a greater percent age of the
total voting power than is at that time beneficially owned by Parent and
the Principals (in the aggregate) and none of the Parent nor any of the
Principals has the right or ability by voting power, contract or otherwise
to elect or nominate for elections a majority of the Company's Supervisory
Board, or
(B) the Continuing Directors cease for any reason to constitute a
majority of the Supervisory Board of the Company then in office, or
(C) the Company adopts a plan of liquidation (other than a plan of
liquidation as a consequence of which (1) the Parent and the Principals (in
the aggregate) beneficially own at least the same percentage of voting
power after the consummation of such plan as before or otherwise retain the
right or ability, by voting power, to control the Person that acquires the
proceeds of such liquidation and (2) the Person that acquires the
substantial majority of the proceeds of such liquidation shall have assumed
by supplemental indenture the Company's obligations pursuant to this
Indenture).
"Common Stock" of any Person means Capital Stock of the Person that does
not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of the Person, to shares of Capital Stock of any other class of the Person.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture, until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Company by a member of the Company's management board
or its supervisory board, the Chief Executive Officer, the President or a Vice
President, and by the Chief Financial Officer, the Chief Accounting Officer, the
Treasurer, an Assistant Treasurer, the Secretary, an Assistant Secretary or
other authorized representative of the Company and delivered to the Trustee.
"Consolidated Coverage Ratio" of any Person on any date of determination
(the "Transaction Date") means the ratio, on a pro forma basis, of (a) the
aggregate amount of Consolidated EBITDA of such Person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and business permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consolidated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date (and
the application of the proceeds therefrom to the extent used to refinance or
retire other Indebtedness) shall be assumed to have occurred on the first day of
such Reference Period, and (iv) the Consolidated Fixed Charges of such Person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for the
entire period, unless such person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the
12-month period immediately following the Transaction Date) that has the effect
of fixing the interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated Invested Equity Capital" means, with respect to any Person as
of any date, the sum of the Invested Equity Capital of such Person as of such
date and, without duplication, the Invested Equity Capital of each of its
Subsidiaries as of such date. For purposes of calculating the Consolidated
Invested Equity Capital of any Person as of any date, in order to avoid
duplication, the Invested Equity Capital of a Subsidiary of such Person shall
not include any amounts that would be included in the Consolidated Invested
Equity Capital of any equity owner of such Subsidiary, to the extent that such
amounts were utilized by such equity owner prior to such date to permit the
incurrence of Indebtedness pursuant to clauses 2(iii) and (c)(3) of Section
10.11. For example, if a direct Subsidiary of the Company has Consolidated
Invested Equity Capital of $100 and incurs $225 of such Indebtedness, then a
direct or indirect Subsidiary of such Subsidiary will not be deemed to have any
Invested Equity Capital based on contributions or loans to it by such first
Subsidiary. In addition, the Invested Equity Capital of a Subsidiary of a Person
will never be considered to be greater than the Invested Equity Capital of such
Person, except as a result of contributions of Invested Equity Capital to such
Subsidiary by third parties.
"Consolidation" means, with respect to any Person, the consolidation of the
accounts of the Subsidiaries with those of such Person, all in accordance with
GAAP; provided that "Consolidation" will not include consolidation of the
accounts of any Unrestricted Subsidiary with the accounts of such Person. The
term "Consolidated" has a correlative meaning to the foregoing.
"Consolidated EBITDA" means, with respect to any Person, for any period,
the Consolidated Net Income of such Person for such period adjusted to add
thereto (to the extent deducted from net revenues in determining Consolidated
Net Income), without duplication, the sum of
(1) Consolidated income tax expense,
(2) Consolidated depreciation and amortization expense,
(3) Consolidated Fixed Charges, and
(4) non-cash stock-based compensation,
less the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period; provided that Consolidated income tax expense, depreciation
and amortization of a Subsidiary that is not a Wholly Owned Subsidiary shall
only be added to the extent of the equity interest of such Person in such
Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of:
(a) interest expensed or capitalized, paid, accrued, or scheduled to
be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such Person and
its Consolidated Subsidiaries during such period, including (1) original
issue discount and non-cash interest payments or accruals on any
Indebtedness, (2) the interest portion of all deferred payment obligations,
and (3) all commissions, discounts and other fees and charges owed with
respect to bankers' acceptances and letters of credit financings and
currency and Interest Swap and Hedging Obligations, in each case to the
extent attributable to such period,
(b) the amount of dividends accrued or payable (or guaranteed) by such
Person or any of its Consolidated Subsidiaries in respect of Preferred
Stock (other than by Subsidiaries of such Person to such Person or such
Person's Wholly Owned Subsidiaries).
For purposes of this definition, (x) interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
in good faith by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any Person for any period,
the net income (or loss) of such Person and its Consolidated Subsidiaries
(determined on a Consolidated basis in accordance with GAAP) for such period,
adjusted to exclude (only to the extent included in computing such net income
(or loss) and without duplication):
(a) all gains (but not losses) which are either extraordinary (as
determined in accordance with GAAP) or are nonrecurring (including any gain
from the sale or other disposition of assets outside the ordinary course of
business or from the issuance or sale of any capital stock),
(b) the net income, if positive, of any Person, other than a
Consolidated Subsidiary, in which such Person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such Person or a
Consolidated Subsidiary of such Person during such period, but in any case
not in excess of such Person's pro rata equity interest share of such
Person's net income for such period,
(c) the net income or loss of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition,
and
(d) the net income, if positive, of any such Person's Consolidated
Subsidiaries to the extent that the declaration or payment of dividends or
similar distributions is not at the time permitted by operation of the
terms of its charter or bylaws or any other agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Consolidated Subsidiary other than this Indenture.
"Consolidated Subsidiary" means, for any Person, each Subsidiary (excluding
all Unrestricted Subsidiaries) of such Person (whether now existing or hereafter
created or acquired) the financial statements of which are Consolidated for
financial statement reporting purposes with the financial statements of such
Person in accordance with GAAP.
"Consolidated Tangible Assets" of any Person means the total amount of
assets less applicable reserves and other properly deductible items which under
GAAP would be calculated on a Consolidated balance sheet of the Person and its
Subsidiaries after deducting all goodwill, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which, in each case under GAAP,
would be included on such Consolidated balance sheet.
"Continuing Director" means during any period of 12 consecutive months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Supervisory Board of the Company (together with any new
supervisory directors whose election by the shareholders was from a list of
candidates drawn up by the holder or holders of the Company's priority shares
and new supervisory directors designated in or provided for in an agreement
regarding the merger, consolidation or sale, transfer or other conveyance, of
all or substantially all of the assets of the Company or the Parent, if such
agreement was approved by a vote of such majority of supervisory directors).
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office at the date of execution of this Indenture is located
at 5 Carmelite Street, London EC4Y 0PA, except that, with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.
"Corporation" includes Corporations, associations, companies and business
trusts.
"Credit Agreement" means the loan and note issuance agreement dated July
27, 1999 between certain Subsidiaries of the Company and Bank of American
International Limited, CIBC World Markets plc, Citibank, N.A., MeesPierson N.V.,
Paribas, The Royal Bank of Scotland plc, Toronto Dominion Bank Europe Limited
and The Toronto Dominion Bank, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as such agreement and/or related documents may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time to time whether
or not with the same agent, trustee, representative lenders or Holders, and,
subject to the proviso to the next succeeding sentence, irrespective of any
changes in the terms and conditions thereof. Without limiting the generality of
the foregoing, the term "Credit Agreement" shall include agreements in respect
of Interest Swap and Hedging Obligations with lenders party to the Credit
Agreement and shall also include any amendment, amendment and restatement,
renewal, extension, restructuring, supplement or modification to any Credit
Agreement and all refundings, refinancings and replacements of any Credit
Agreement, including any agreement:
(1) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby,
(2) adding or deleting borrowers or guarantors thereunder, so long as
borrowers and guarantors may include one or more of the Company and its
Subsidiaries and their respective successors and assigns,
(3) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder; provided that on the date such
Indebtedness is incurred it would not be prohibited by Section 10.11;or
(4) otherwise altering the terms and conditions thereof in a manner
not prohibited by the other terms of this Indenture.
"CT Corporation System" has the meaning specified in Section 1.19.
"Default" means any event that is or with the passage of time or the giving
of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means the DTC or the Common Depositary, as the case may be.
"Disqualified Capital Stock" means (a) except as set forth in clause (b),
with respect to any Person, Equity Interests of such Person that, by its terms
or by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time or
both would be, required to be redeemed or repurchased (including at the option
of the holder thereof) by such Person or any of its Subsidiaries, in whole or in
part, on or prior to 91 days following the Stated Maturity of the Securities and
(b) with respect to any Subsidiary of the Company, any Equity Interests of such
Subsidiary other than (i) any common equity with no economic preference,
privileges, or redemption or repayment provisions or (ii) preferred stock
convertible into such common equity of such Subsidiary with no payment of
dividends or liquidation preference due or payable thereon on or prior to 91
days following the Stated Maturity of the Securities.
"Dollars" or "$" or "U.S. Dollars" means the lawful currency of the United
States of America and, in relation to any amount to be advanced or paid under
this Indenture or the Securities, funds having immediate value.
"DTC" means the Depository Trust Company, its nominees and successors.
"Equity Interest" of any Person means any shares, interests, participations
or other equivalents (however designated) in such Person's equity, and shall in
any event include any Capital Stock issued by, or partnership, participation or
membership interests in, such Person.
"Equity Offering" means (i) an underwritten public offering or floatation
of ordinary shares of the Company which has been registered under the Securities
Act, or admitted to listing on the Amsterdam Stock Exchange or its equivalent in
any other European Union jurisdiction, in any case resulting in Net Cash
Proceeds to the Company of at least $100,000,000 (or its foreign currency
equivalent), or (ii) a sale of Qualified Capital Stock of the Company to any
Person which is (or a controlled Affiliate of a Person which is), engaged
principally in a Related Business, resulting in Net Cash Proceeds to the Company
of at least $100,000,000 (or its foreign currency equivalent); provided,
however, that a sale of Qualified Capital Stock of the Company to any subsidiary
of the Company or any Person that is a controlled Affiliate of the Company shall
not be an Equity Offering.
"Euro" or "(E)" means the currency adopted by those countries participating
in the third stage of European monetary union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"European Economic Area" means the member nations of the European Economic
Area pursuant to the Oporto Agreement on the European Economic Area dated May 2,
1992 as amended.
"European Union" means the member nations to the third stage of economic
and monetary union pursuant to the treaty of Rome establishing the European
Community, as amended by the Treaty on European Union, signed at Maastricht on
February 7, 1992.
"Event of Default" has the meaning set forth under Section 5.1.
"Event of Loss" means, with respect to any property or asset, any (1) loss,
destruction or damage of such property or asset or (2) any condemnation, seizure
or taking, by exercise of the power of eminent domain or otherwise, of such
property or asset, or confiscation or requisition of the use of such property or
asset.
"Exchange Act" means the United States Securities Exchange Act of 1934, as
amended (or any successor act), and the rules and regulations thereunder (or
respective successors thereto).
"Exchange Offer" means the exchange registered with the SEC to exchange
Initial Securities for Exchange Securities pursuant to the terms of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means an Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" means the Securities to be issued pursuant to this
Indenture in connection with the offer to exchange Securities for Initial
Securities that may be made by the Company pursuant to the Registration Rights
Agreement.
"Exempted Affiliate Transaction" means (i) Restricted Payments comprised of
pro rata dividends paid in cash on any class of Equity Interests and made in
compliance with this Indenture, (ii) transactions, at arms-length and as so set
forth in a Board Resolution, between or among holders of any Equity Interest of
any Subsidiary of the Company and such Subsidiary, so long as such holder is not
otherwise an Affiliate of the Company, (iii) transactions between or among the
Company, and its Subsidiaries, (iv) the Company or any of its Subsidiaries
entering into or performing any employment agreement, stock option agreement or
other agreement relating to the terms of employment, compensation or termination
of employment in the ordinary course of business of the Company or such
Subsidiary, (v) any contract, agreement, arrangement or transaction with any
Affiliate in effect as of the Issue Date and any amendment, waiver, variation or
other modification in respect of any such contract, agreement, arrangement or
transaction so long as such amendment, waiver, variation or other modification
is not disadvantageous to the Company and its Subsidiaries in any material
respect, (vi) Restricted Payments and Investments permitted under Section 10.12,
(vii) transactions with customers, clients, suppliers, or purchasers or sellers
of goods or services, in each case in the ordinary course of business and
otherwise in compliance with the terms of this Indenture which are fair to the
Company and its Subsidiaries, in the reasonable determination of the Company or
Subsidiary, as the case may be, or are on terms no less favorable to the Company
or the Subsidiary than those that could be obtained in a comparable arm's length
transaction with an entity that is not an Affiliate or Principal and is in the
best interests of the Company or the Subsidiary, and (viii) transactions with
respect to network capacity or dark or lit communications fiber capacity or
telecommunications conduit between the Company or any Subsidiary and any
Unrestricted Subsidiary or other Affiliate and joint sales and marketing
pursuant to an agreement or agreements between the Company or any Subsidiary and
any Unrestricted Subsidiary or other Affiliate, provided that in the case of
this clause (viii), such agreements are on terms that are no less favorable to
the Company or the Subsidiary than those that could be obtained in an
arm's-length transaction with an entity that is not an Affiliate or Principal
and are in the best interests of the Company and the Subsidiary entered into in
the ordinary course of business.
"Existing Agreements" means (i) any and all instruments, as in effect on
the Issue Date, between the Company or any of its Subsidiaries and a commercial
lending institution or institutions, which makes borrowing of funds available to
the Company or any such Subsidiary from such institution or institutions and
(ii) any replacements of the instruments in clause (i) entered into by the
respective Subsidiary that was party to the instrument so replaced or their
respective successors and a commercial lending institution or institutions for
an amount up to the maximum amount of the instrument so replaced.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the Issue Date, reduced to the extent such amounts are repaid.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Security" means a Regulation S Global Security (or Unrestricted
Global Security) or a Restricted Global Security.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part); provided that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as verb has a corresponding meaning.
"Guarantor" is defined to mean any Person obligated under a Guarantee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means, without duplication,
(a) all liabilities and obligations, contingent or otherwise, of any
Person, to the extent such liabilities and obligations would appear as a
liability upon the Consolidated balance sheet of such Person in accordance
with GAAP, (1) in respect of borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a
portion thereof), (2) evidenced by bonds, notes, debentures or similar
instruments, (3) representing the balance deferred and unpaid of the
purchase price of any property or services, except (other than accounts
payable or other obligations to trade creditors which have remained unpaid
for greater than 90 days past their original due date) those incurred in
the ordinary course of its business that would constitute ordinarily a
trade payable to trade creditors;
(b) all liabilities and obligations, contingent or otherwise, of such
Person (1) evidenced by bankers' acceptances or similar instruments issued
or accepted by banks, (2) relating to any Capitalized Lease Obligation, or
(3) evidenced by a letter of credit or a reimbursement obligation of such
Person with respect to any letter of credit (other than obligations with
respect to letters of credit securing obligations (other than obligations
described in (a)(1) through (3) above) entered into in the ordinary course
of business of such Person to the extent such letters of credit are not
drawn upon);
(c) all net obligations of such Person under Interest Swap and Hedging
Obligations;
(d) all liabilities and obligations of others of the kinds described
in the preceding clauses (a), (b) or (c) that such Person has guaranteed or
provided credit support or that is otherwise its legal liability or which
are secured by any assets or property of such Person;
(e) any and all deferrals, renewals, extensions, refinancing and
refundings (whether direct or indirect) of, or amendments, modifications or
supplements to, any liability of the kind described in any of the preceding
clauses (a), (b), (c) or (d), or this clause (e), whether or not between or
among the same parties; and
(f) all Disqualified Capital Stock of such Person (measured at the
greater of its voluntary or involuntary maximum fixed repurchase price,
plus accrued and unpaid dividends).
For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any
date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair
market value of such Disqualified Capital Stock, such fair market value to
be determined in good faith by the Supervisory Board of the Company.
The amount of any Indebtedness outstanding as of any date shall be (1)
the accreted value thereof, in the case of any Indebtedness issued with
original issue discount, but the accretion of original issue discount in
accordance with the original terms of Indebtedness issued with an original
issue discount will not be deemed to be an incurrence and (2) the principal
amount thereof, excluding any interest thereon, in the case of any other
Indebtedness.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Institutional Accredited Investor" means an institutional "Accredited
Investor", as defined in Regulation D of the Securities Act.
"Initial Purchasers" means, with respect to the Initial Securities issued
pursuant to this Indenture on the Issue Date, each of Goldman Sachs
International, Donaldson, Lufkin & Jenrette International, Morgan Stanley & Co.
International Limited, TD Securities (USA) Inc., Bank of America International
Limited, Chase Manhattan International Limited, CIBC World Markets Corp., Credit
Suisse First Boston (Europe) Limited, Merrill Lynch International and Salomon
Brothers International Limited.
"Initial Securities" means the $735,000,000 12 1/2% Senior Discount Notes
due 2009, issued under this Indenture on the Issue Date.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any Person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including, without
limitation, any arrangement whereby, directly or indirectly, such Person is
entitled to receive from time to time periodic payments calculated by applying
either a fixed or floating rate of interest on a stated notional amount in
exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Invested Equity Capital" means, with respect to any Person as of any date,
without duplication, the sum of (i) the total dollar amount contributed in cash
plus the value of all property contributed (valued at fair market value at the
time of contribution, determined in good faith by the Supervisory Board) to such
Person since the date of its creation in the form of common equity, plus, (ii)
the total dollar amount contributed in cash plus the value of all property
contributed (valued at fair market value at the time of contribution, determined
in good faith by the Supervisory Board) to such Person since the date of
creation by the holders of its common equity (and their Affiliates) in
consideration of the issuance of preferred equity or Indebtedness, on a basis
that is substantially proportionate to their common equity interests (with any
disproportionately large equity interests received by the Company or a
Subsidiary relative to their respective contributions being ignored for this
purpose), plus, (iii) the total dollar amount contributed in cash plus the value
of all property contributed (valued at fair market value at the time of
contribution, determined in good faith by the Supervisory Board) to such Person
since the date of its creation by the Company or a Wholly Owned Subsidiary of
the Company in consideration of the issuance of preferred equity or
Indebtedness, and less (iv) the value of all interest, returns in respect of
Indebtedness, dividends and other distributions (in whatever form and however
designated, valued at fair market value as determined in good faith by the
Supervisory Board) made by such Person since the date of its creation to the
holders of its common equity (and their Affiliates); provided that in no event
shall the aggregate amount of interest, dividends and other distributions made
to any holder of common equity of a Person (or its Affiliates) operate to reduce
the Invested Equity Capital of such Person by more than the total contributions
to such Person (per clauses (i) through (iii) above) by such equity holder (and
its Affiliates).
"Investment" by any Person in any other Person means (without duplication):
(a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities
or otherwise) of capital stock, bonds, notes, debentures, partnership or
other ownership interests or other securities, including any options or
warrants, of such other Person or any agreement to make any such
acquisition;
(b) the making by such Person of any deposit with, or advance, loan or
other extension of credit to, such other Person (including the purchase of
property from another Person subject to an understanding or agreement,
contingent or otherwise, to resell such property to such other Person) or
any commitment to make any such advance, loan or extension (but excluding
accounts receivable, endorsements for collection or deposits arising in the
ordinary course of business);
(c) other than guarantees of Indebtedness of the Company or to the
extent permitted by Section 10.11, the entering into by such Person of any
guarantee of, or other credit support or contingent obligation with respect
to, Indebtedness or other liability of such other Person;
(d) the making of any capital contribution by such Person to such
other Person; and
(e) the designation by the Supervisory Board of the Company of any
Person to be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an amount equal to the fair
market value of the net assets of any Subsidiary (or, if neither the Company nor
any of its Subsidiaries has theretofore made an Investment in such subsidiary,
in an amount equal to the Investments being made), at the time that such
Subsidiary is designated an Unrestricted Subsidiary, and any property
transferred to an Unrestricted Subsidiary from the Company or a Subsidiary of
the Company shall be deemed an Investment valued at its fair market value at the
time of such transfer. Investments shall be measured by the fair market value
attributed to the Investment at the time made or re turned, as applicable.
"Issue Date" means the date of first issuance of the Initial Securities
hereunder.
"Leverage Ratio" on any date of determination (the "Transaction Date") for
any Person means the ratio, on a pro forma basis, of (a) the aggregate amount of
Indebtedness of such Person and its Subsidiaries on a Consolidated basis to (b)
the aggregate amount of Annualized Consolidated EBITDA of such Person
attributable to continuing operations and business (exclusive of amounts
attributable to operations and businesses permanently discontinued or disposed
of); provided that for purposes of calculating Annualized Consolidated EBITDA
for this definition,
(1) acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date
shall be assumed to have occurred on the first day of the Reference Period,
(2) transactions giving rise to the need to calculate the Leverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period,
(3) the incurrence of any Indebtedness or issuance of any Disqualified
Capital Stock during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date (and the application of the
proceeds therefrom to the extent used to refinance or retire other
Indebtedness) shall be assumed to have occurred on the first day of the
Reference Period, and
(4) the Consolidated Fixed Charges of such Person attributable to
interest on any Indebtedness or dividends on any Disqualified Capital Stock
bearing a floating interest (or dividend) rate shall be computed on a pro
forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for
the entire period, unless such Person or any of its Subsidiaries is a party
to an Interest Swap or Hedging Obligation (which shall remain in effect for
the 12-month period immediately following the Transaction Date) that has
the effect of fixing the interest rate on the date of computation, in which
case such rate (whether higher or lower) shall be used.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. For purposes of this definition, the sale, lease,
conveyance, or other transfer by the Company or any Subsidiary of the Company,
in the ordinary course of its business and not constituting a security interest
in assets serving as collateral for any of their respective obligations,
including the granting of indefeasible rights of use or equivalent arrangements
with respect to, network capacity, communications fiber capacity or conduit,
shall not be a Lien.
"Liquidated Damages" means all liquidated damages then owing pursuant to
the Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash or Cash Equivalents
received by the Company in the case of a sale, or Capital Contribution in
respect, of Qualified Capital Stock and by the Company and its Subsidiaries in
respect of an Asset Sale, plus, in the case of an issuance of Qualified Capital
Stock upon any exercise, exchange or conversion of securities (including
options, warrants, rights and convertible or exchangeable debt) of the Company
that were issued for cash on or after the Issue Date, the amount of cash
originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary) expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale or sale of Qualified Capital Stock,
and, in the case of an Asset Sale only, less the amount (estimated reasonably
and in good faith by the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any of its respective
Subsidiaries in connection with such Asset Sale in the taxable year that such
sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any available operating losses and net operating loss carryovers,
tax credits and tax credit carryforwards, and similar tax attributes.
"New Acquisitions" means the acquisition by the Company or its subsidiaries
of @Entertainment, Inc., A2000 Holding N.V., Time Warner Cable France S.A.,
Reseaux Cables de France S.A., Videopole S.A., Kabel Plus, a.s., SBS
Broadcasting S.A., GelreVision N.V., SKT spol. s.r.o. and NBS Broadband Services
AB, all substantially as described in the Offering Circular (and each such
Person's respective subsidiaries).
"Non-Recourse Indebtedness" means Indebtedness of a Person to the extent
that under the terms thereof and pursuant to applicable law, no personal
recourse could be had against the Company or its Subsidiaries (giving effect to
the designations of such Person as an Unrestricted Subsidiary) for the Payment
of the principal of or interest or premium or other amounts with respect to such
Indebtedness or for any claim based on such Indebtedness and that enforcement of
obligations on such Indebtedness is limited solely to recourse against interests
in specified assets.
"Obligation" means any principal, premium or interest payment, or monetary
penalty, or damages, due by the Company under the terms of the Securities or
this Indenture, including any Liquidated Damages due pursuant to the terms of
the Registration Rights Agreement.
"Offering" means the offering of the Securities by the Company.
"Offering Circular" means the offering memorandum dated July 27, 1999,
pursuant to which the Securities were offered and sold.
"Officers' Certificate" means a certificate signed by a member of the
Company's Management Board or its Supervisory Board, the Chief Executive Officer
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee in the form substantially similar to Exhibit E attached hereto, which
shall comply with the Indenture, except in the case of an authentication order
pursuant to Section 3.3, which must only be signed by one of the above noted
persons.
"Opinion of Counsel" means an opinion of counsel in the form substantially
similar to Exhibit F attached hereto, who may be counsel to the Company,
including an employee of the Company.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture;
(iii) Securities, except to the extent provided in Sections 12.2 and
12.3, with respect to which the Company has effected Defeasance and/or
Covenant Defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands the Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount at maturity of Outstanding Securities have given any request,
demand, authorization, direction, consent, notice or waiver hereunder, and for
the purpose of making the calculations required by TIA Section 313, Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which any
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Parent" means UnitedGlobalCom, Inc. and its successor(s).
"Parent Stock Instrument" means either (a) Indebtedness (including
Disqualified Capital Stock) and Qualified Capital Stock of the Company that is
convertible or exchangeable into, at the option of the Company or any holder
thereof, or secured by, or whose value to the holder thereof is dependent upon
any shares of Parent's Capital Stock that are owned by the Company or any of its
Subsidiaries as of the Issue Date; provided that such Indebtedness and Capital
Stock of the Company shall have been issued in consideration of cash, the net
proceeds of which shall have been received by the Company or (b) the Class A
Common Stock of Parent owned by the Company or any of its Subsidiaries as of the
Issue Date or any like number of shares of Class B Common Stock of Parent issued
in exchange for the shares of the Class A Common Stock of Parent held as of the
Issue Date.
"Participants" means institutions that have accounts with DTC or its
nominee and with respect to the Regulation S Global Securities, institutions
that have accounts with Euroclear or Cedelbank or their respective nominees.
"Paying Agent" means an office or agency of the Company where Securities
may be presented for payment.
"Payment Date" means any date on which a payment of principal, premium, if
any, interest (or Liquidated Damages, if any) is due to be paid on any of the
Securities.
"Permitted Indebtedness" means that:
(a) the Company may incur Indebtedness evidenced by the Securities and
issued pursuant to this Indenture and Indebtedness evidenced by the
Discount Notes and issued pursuant to the Discount Notes Indenture up to
the amounts being issued on the original Issue Date;
(b) the Company may incur Refinancing Indebtedness with respect to any
Indebtedness (including Disqualified Capital Stock), described in clause
(a) or this clause (b) of this definition or incurred pursuant to clause
(1)(ii) of Section 10.11, and any Subsidiary may incur Refinancing
Indebtedness (including Disqualified Capital Stock), described in this
clause (b) or clause (2)(c) of Section 10.11 and the Company and its
Subsidiary may incur Refinancing Indebtedness with respect to Indebtedness
which is outstanding on the Issue Date (after giving effect to the New
Acquisitions) (less the amount of any such Existing Indebtedness repaid on
or after the Issue Date or which was refinanced pursuant to this clause
(b));
(c) the Company and its Subsidiaries may incur Indebtedness solely in
respect of bankers acceptances, letters of credit and performance and
surety bonds and completion guarantees (to the extent that such incurrence
does not result in the incurrence of any obligation to repay any obligation
relating to borrowed money of others), all in the ordinary course of
business in accordance with customary industry practices, in amounts and
for the purposes customary in the Company's industry;
(d) the Company may incur Indebtedness to any Subsidiary, and any
Subsidiary may incur Indebtedness to any other Subsidiary or to the
Company; provided that in the case of Indebtedness of the Company, such
obligations shall be unsecured and subordinated in all respects to the
Company's obligations pursuant to the Securities and the Discount Notes and
any event that causes such Subsidiary no longer to be a Subsidiary
(including by designation to be an Unrestricted Subsidiary) shall be deemed
to be a new incurrence of such Indebtedness, if then outstanding, subject
to Section 10.11;
(e) the Company and its Subsidiaries may incur Interest Swap and
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate or currency risk with respect to any fixed or floating rate
Indebtedness that is permitted by this Indenture to be outstanding or any
receivable or liability the payment of which is determined by reference to
a foreign currency; provided that the notional amount of any such Interest
Swap and Hedging Obligation does not exceed the principal amount of
Indebtedness to which such Interest Swap and Hedging Obligation relates;
(f) the Company and its Subsidiaries may guarantee Indebtedness of any
of the Company's Subsidiaries, provided that the incurrence of such
Indebtedness by such Subsidiary is permitted under this Indenture; and
(g) Subsidiaries of the Company may issue preferred stock or
Indebtedness to the holders (or their Affiliates) of the common equity of
such Subsidiary on a basis that is substantially proportionate to their
common equity interests (with any disproportionately large equity interests
received by the Company or a Subsidiary of the Company relative to their
respective contributions being ignored for this purpose).
"Permitted Investment" means:
(a) Cash Equivalents;
(b) intercompany Indebtedness to the extent permitted under clause (d)
of the definition of "Permitted Indebtedness";
(c) an Investment by the Company or a Subsidiary of the Company in a
Person engaged primarily in a Related Business if as a result of such
Investment such Person becomes a Subsidiary of the Company or is merged
with or into the Company or a Subsidiary of the Company, so long as the
surviving entity is the Company or a Subsidiary of the Company;
(d) an Investment in any Subsidiary of the Company;
(e) other Investments in any Person or Persons engaged primarily in a
Related Business with respect to which the Company maintains the power to
influence or participate in the management of such Person by virtue of
representation on such Person's board or directors or through a contractual
relationship with such Person or its holders of Capital Stock;
(f) other Investments in any Person or Persons engaged primarily in a
Related Business with respect to which the Supervisory Board of the Company
or of the relevant Subsidiary determines in its good faith reasonable
judgement that the Company or any of its Subsidiaries will receive as a
result of such Investment commensurate network services benefits (including
by becoming a customer, client, supplier, purchaser or seller of goods or
services of or to such Person or Persons) from the arrangements entered
into as a result of such Investment;
(g) other Investments in any Person or Persons engaged primarily in a
Related Business; provided that, after giving pro forma effect to each such
Investment, the amount of all such Investments made solely in reliance upon
this clause (g) on and after the Issue Date that are Outstanding at any
time does not exceed in the aggregate $100,000,000 (or the foreign currency
equivalent thereof measured on the date of the making of such Investment),
plus, unless such amounts shall have been credited under clause (3) of
Section 10.12 and utilized to make a Restricted Payment, (w) the amount of
the Net Cash Proceeds to the Company from the sale of Qualified Capital
Stock (other than (i) to a Subsidiary of the Company, and (ii) to the
extent applied in a Qualified Exchange), (x) an amount equal to 50% of the
Net Cash Proceeds from Special Character Asset Sales, (y) an amount equal
to the Net Cash Proceeds to the Company or any of its Subsidiaries of any
sale of securities constituting a Parent Stock Instrument (other than (i)
to a Subsidiary of the Company, and (ii) to the extent applied in
connection with a Qualified Exchange) and (z) the amount of Investments
made pursuant to this clause (g) after the Issue Date that are returned to
the Company or any Subsidiary on or prior to the date of any such
calculation, which amount shall be the lesser of (i) the amount of the cash
invested plus the value of all noncash investments (valued at the fair
market value at the time of the Investment, deter mined in the good faith
reasonable judgment of the Company or the relevant Subsidiary) and (ii) the
amount of the Net Cash Proceeds received plus the value of noncash proceeds
received (valued at the fair market value at the time of the return of such
Investment, deter mined in the good faith reasonable judgment of the
Company or the relevant Subsidiary);
(h) Investments made in the ordinary course of business as partial or
full payment for constructing a network relating principally to a Related
Business of the Company or any Subsidiary;
(i) Investments solely in the form and consisting of Capital Stock of
the Company (other than Disqualified Capital Stock);
(j) any Investment acquired by the Company or any of its restricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Company or any such restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other investment or accounts
receivable or (b) as a result of a foreclosure by the Company or any of its
restricted Subsidiaries with respect to any secured Investment or other
transfer of title with respect to any secured Investment in default;
(k) an Investment in prepaid expenses and lease, utility and workers'
compensation, performance and other similar deposits in the ordinary course
of business;
(l) loans, advances, or extensions of credit to employees, officers,
directors made in the ordinary course of business; and
(m) the net obligations of any counterparty under Interest Swap and
Hedging Obligations obtained in conformity with industry practices.
(n) Investments in SBS Broadcasting S.A. not to exceed the amounts
required to be made by the Company pursuant to the Investment Agreement by
and between, SBS Broadcasting S.A., the Company and United International
Holdings Inc., dated June 29, 1999, relating to the acquisition by the
Company of Equity Interests in SBS Broadcasting S.A.; and
(o) Investments, directly or indirectly, in ARA Cable Services Inc. or
ARA Programming & Distribution Ltd. of Saudi Arabia, not to exceed
$75,000,000.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) Liens securing the Securities or the Senior Notes;
(c) Liens securing Indebtedness, or any agreement (including any
Equity Interest) relating to any property, asset, or business acquired, of
a Person existing at the time such Person becomes a Subsidiary (including
by designation) or is merged with or into the Company or a Subsidiary or
Liens securing Indebtedness incurred in connection with an Acquisition,
provided that such Liens were in existence prior to the date of such
acquisition, merger or consolidation, were not incurred in anticipation
thereof, and do not extend to any other assets than those of the Person (or
its businesses) being acquired (or so designated);
(d) leases or subleases granted to other Persons in the ordinary
course of business not materially interfering with the conduct of the
business of the Company or any of its Subsidiaries or materially detracting
from the value of the relative assets of the Company or any Subsidiary;
(e) Liens arising from precautionary Uniform Commercial Code financing
statement filings regarding operating leases entered into by the Company or
any of its Subsidiaries in the ordinary course of business;
(f) Liens securing Refinancing Indebtedness incurred to refinance any
Indebtedness that was previously so secured in a manner no more adverse to
the Holders of the Securities than the terms of the Liens securing such
refinanced Indebtedness, provided that the Indebtedness secured is not
increased and the Lien is not extended to any additional assets or property
that would not have been security for the Indebtedness refinanced;
(g) Liens securing Indebtedness incurred under the Credit Agreement
and other Indebtedness solely of Subsidiaries of the Company incurred in
accordance with the terms of this Indenture; and
(h) Liens in favor of the Company or Liens on assets of Subsidiaries
of the Company in favor of other such Subsidiaries.
(i) Liens securing Refinancing Indebtedness that complies with the
definition of "Refinancing Indebtedness";
(j) Liens securing Acquired Indebtedness and Indebtedness assumed in
acquiring Related Assets, provided that such Liens were not put in place in
contemplation of the incurrence by the Company or its Subsidiaries of such
Indebtedness, such Liens do not extend to any property or assets of the
Company or any of its Subsidiaries other than those acquired in connection
therewith, and the Investment that is the subject of such acquisition is a
Permitted Investment;
(k) statutory liens of carriers, warehousemen, mechanics, material
men, landlords, repairmen or other like Liens arising by operation of law
in the ordinary course of business, provided that (1) the underlying
obligations are not overdue for a period of more than 30 days, or (2) such
Liens are being contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the books of the
Company in accordance with GAAP; and
(l) Liens not otherwise permitted by this Indenture in an amount not
to exceed 5% of the Company's Consolidated Tangible Assets.
"Person" means any Corporation, individual, limited liability company,
joint stock company, joint venture, partnership, limited liability partnership,
unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipally or other entity.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or
stolen Security.
"Preferred Stock" means any Equity Interest of any class or classes of a
Person (however designated) which is preferred as to payments of dividends, or
as to distributions upon any liquidation or dissolution, over Equity Interests
of any other class of such Person.
"Principals" means Albert M. Carollo, Lawrence F. DeGeorge, Lawrence J.
DeGeorge, Curtis Rochelle, Marian Rochelle, Rochelle Investments, Ltd. (so long
as it is controlled by Curtis or Marian Rochelle), Gene W. Schneider, G.
Schneider Holdings, Co. and The Gene W. Schneider Family Trust (so long as each
is controlled by Gene W. Schneider or trustees appointed by him), Janet S.
Schneider, Mark L. Schneider, Apollo Cable Partners, L.P., and with respect to
any such Person means: (A) any controlling stockholder or 80% (or more) owned
Subsidiary of such Person, or with respect to each individual Person, (i) family
partnerships, Corporations or other entities holding Equity Interests in the
Company, the transferee(s) or the surviving entities or entities solely for the
benefit of such Person or any of the Persons listed in (ii), (iii), (iv) or (v)
below, (ii) such Person's spouse, (iii) such Person's children, grandchildren,
stepchildren, step grandchildren and their spouses, (iv) heirs, legatees and
devisees, and (v) trusts solely for the benefit of any of the foregoing; or (B)
any trust Corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding an 80% or more
controlling interest of which consist of such Person and/or such other Persons
referred to in the immediately preceding clause (A).
"Pro Forma" or "pro forma" shall have the meaning set forth in Regulation
S-X of the Securities Act, unless otherwise specifically stated herein.
"Purchase Money Indebtedness" of any Person means any Indebtedness of such
Person to any seller or other Person incurred solely to finance the acquisition
(including in the case of a Capitalized Lease Obligation, the lease),
construction, installation or improvement of any after acquired real or personal
tangible property which, in the reasonable good faith judgment of the
Supervisory Board of the Company, is directly related to a Related Business.
"Qualified Capital Stock" means any Capital Stock of the Company that is
not Disqualified Capital Stock.
"Qualified Exchange" means:
(a) any legal defeasance, redemption, retirement, repurchase or other
acquisition of Capital Stock, or Indebtedness of the Company issued on or
after the Issue Date with the Net Cash Proceeds received by the Company
from the substantially concurrent sale of its Qualified Capital Stock or,
to the extent used to retire Indebtedness (other than Disqualified Capital
Stock) of the Company issued on or after the Issue Date, Subordinated
Indebtedness of the Company,
(b) any exchange of Qualified Capital Stock of the Company for any
Capital Stock or Indebtedness of the Company issued on or after the Issue
Date, or
(c) any issuance of Subordinated Indebtedness of the Company in
exchange for Indebtedness (other than Disqualified Capital Stock) of the
Company issued on or after the Issue Date.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in Rule
144A.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Reference Period" with regard to any Person means the full fiscal quarter
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Securities or this Indenture, for which
Consolidated financial statements of the Company are available.
"Refinancing Indebtedness" means Indebtedness (including Disqualified
Capital Stock) (a) issued in exchange for, or the proceeds from the issuance and
sale of which are used substantially concurrently to repay, redeem, defease,
refund, refinance, discharge or otherwise retire for value, in whole or in part,
or (b) constituting an amendment, modification or supplement to, or a deferral
or renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness (including Disqualified Capital Stock and Refinancing Indebtedness)
in a principal amount (or, if issued with an original issue discount, an
original accreted value, determined in accordance with GAAP) or, in the case of
Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing and the amount of any premium paid in connection with such
Refinancing in accordance with the terms of the documents governing the
Indebtedness (including Disqualified Capital Stock and Refinancing Indebtedness)
refinanced without giving effect to any modification thereof made in connection
with or in contemplation of such refinancing) the lesser of (1) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference, of
the Indebtedness (including Disqualified Capital Stock and Refinancing
Indebtedness) so Refinanced and (2) if such Indebtedness being Refinanced was
issued with an original issue discount, the accreted value thereof (as
determined in accordance with GAAP) at the time of such Refinancing; provided
that (A) such Refinancing Indebtedness shall only be used to refinance
Outstanding Indebtedness (including Disqualified Capital Stock) of such Person
issuing such Refinancing Indebtedness (except that the Company may refinance
Outstanding Indebtedness of a Subsidiary), (B) such Refinancing Indebtedness
shall (x) not have an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refinanced at the time of such Refinancing
and (y) in all respects, be no less contractually subordinated or junior, if
applicable, to the rights of Holders of the Securities than was the Indebtedness
(including Disqualified Capital Stock) to be refinanced, (C) such Refinancing
Indebtedness shall have a final stated maturity or redemption date, as
applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital Stock) to be so
refinanced, and (D) such Refinancing Indebtedness shall be secured (if secured)
in a manner no more adverse to the Holders of the Securities than the terms of
the Liens (if any) securing such refinanced Indebtedness, including, without
limitation, the amount of Indebtedness secured shall not be increased.
"Registrar" means an office or agency of the Company in London, where
Securities may be presented for registration of transfer or exchange.
"Registration Rights Agreement" means the Registration Rights Agreement
dated the date hereof, between the Initial Purchasers and the Company.
"Registration Statement" means the Registration Statement as defined in the
Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment Date
means January 15 or July 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section 3.3.
"Related Assets" means all assets, rights, contractual or otherwise, and
properties, whether tangible or intangible, used or intended for use in
connection with a Related Business; provided that Related Assets shall not
include any Equity Interests or indebtedness of, or interests in, any Person.
"Related Business" means the business of constructing, creating,
developing, marketing or operating one or more cable, telephone or
communications systems, including, without limitation, any system for
transmitting, or providing service or product for the transmission of, voice,
video or data through transmission facilities, Internet service providers or any
business reasonably related to any of the foregoing and any business conducted
by the Company or any Subsidiary of the Company on the Issue Date; provided that
the determination of what constitutes a Related Business shall be made in good
faith by the Supervisory Board of the Company.
"Related Business Acquisition" means an Asset Acquisition of (i) properties
or assets to be used in a Related Business, (ii) of the Capital Stock of any
Person that becomes a restricted Subsidiary as a result of such Asset
Acquisition or (iii) of the Capital Stock of any Person that becomes an
Unrestricted Subsidiary as a result of such Asset Acquisition, but only if such
Asset Acquisition would be permitted pursuant to Section 10.12 or as a Permitted
Investment; provided that, in the case of clauses (ii) and (iii), such Person's
assets and properties consist principally of properties or assets that will be
used in a Related Business.
"Replacement Assets" means property or assets that will be used in a
Related Business of the Company or any Subsidiary and Equity Interests of a
Person that becomes a Subsidiary of the Company.
"Responsible Officer" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice-president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Global Security" has the meaning specified in Section 3.3.
"Restricted Investment" means, in one or a series of related transactions,
any Investment, other than other Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or other distribution
in respect of Equity Interests of such Person or any parent or Subsidiary
of such Person,
(b) any payment on account of the purchase, redemption or other
acquisition or retirement for value of Equity Interests of such Person or
any Subsidiary or parent of such Person,
(c) other than with the proceeds from the substantially concurrent
sale of, or in exchange for, Refinancing Indebtedness, any purchase,
redemption, or other acquisition or retirement for value of, any payment in
respect of any amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such Person or a
parent or Subsidiary of such Person prior to the scheduled maturity, any
scheduled repayment of principal, or scheduled sinking fund payment, as the
case may be, of such Indebtedness and
(d) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of a Person or the parent of such Person to the extent payable solely in shares
of Qualified Capital Stock of such Person, or (2) any dividend, distribution or
other payment to the Company or any of its Subsidiaries by the Company or any of
its Subsidiaries, or (3) any payment on account of the exchange of shares of
Common Stock of Parent for a like number of substantially identical (except with
regard to voting rights) shares of Common Stock of Parent, or (4) payments to or
for the account of the Stichting Administratiekantor UPC (the "Foundation") or
its successors of amounts related to taxes payable upon the grant of options to
certain employees in shares of the Company held by the Foundation, provided
that, for purposes of this clause (4), neither the Company nor any of its
Subsidiaries shall be liable to any Person in respect of such amounts, other
than for the payment of such amounts actually received or to be received by it,
to the Foundation.
"Restricted Period" means the period through and including the 40th day
after the later of the commencement of the Offering and the Issue Date of the
Initial Securities.
"Restricted Securities" means Restricted Global Securities and Regulation S
Global Securities.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means, collectively, the "Securities" issued under this
Indenture, including the Initial Securities and the Exchange Securities.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Senior Discount Notes" means the Company's $735,000,000 121/2% Senior
Discount Notes due 2009 issued pursuant to the Indenture.
"Senior Notes" means the Company's $800,000,000 107/8% Senior Notes due
2009 and its (E)300,000,000 107/8% Senior Notes due 2009 to be issued under a
Senior Notes Indenture, dated as of July 30, 1999.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Significant Subsidiary" shall have the meaning provided under Regulation
S-X of the Securities Act, as in effect on the Issue Date.
"Special Character Asset Sale" means any Asset Sale solely consisting of
assets and property or interests therein comprising its interests in chello
broad band, UPC tv or Priority Telecom determined by the Company in its good
faith reasonable judgment.
"Stated Maturity," when used with respect to any Security or any
installment of interest on such Securities, means the date specified in the
Security as the fixed date on which any principal amount of the Security or the
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment by its terms or the terms of any document or
instrument relating thereto to the Securities, in any respect or when used in
the definitions of Restricted Payment or Qualified Exchange has a final stated
maturity on (except for the Securities) or after the Stated Maturity.
"Subsidiary," with respect to any Person, means (1) a Corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, (2) any other Person (other than a
Corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof has majority ownership interest, or (3) a
partnership in which such Person or a Subsidiary of such Person is, at the time,
a general partner and in which such Person, directly or indirectly, at the date
of determination thereof has a majority ownership interest. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be a Subsidiary of the Company
or of any Subsidiary of the Company. Unless the context requires otherwise,
Subsidiary means each direct and indirect Subsidiary of the Company.
"Supervisory Board" means, with respect to any Person, the supervisory
board of directors of such Person or any committee of the supervisory board of
directors of such Person authorized, with respect to any particular matter, to
exercise the power of the supervisory board of directors of such Person.
"Tax" or "Taxes" means any and all present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, and all liabilities
with respect thereto, together with any penalties, interest, or additions
thereto.
"Tax Event" means that as a result of any change in or amendment to the
laws, treaties or regulations of any Taxing Authority (or any official or
administrative pronouncement or action or judicial decision) interpreting or
applying such laws, treaties or regulations where such change or amendment is
proposed and becomes effective on or after the Issue Date, in making any payment
due or to become due under the Securities, the Company is or would be required
on the next succeeding payment date to pay Additional Amounts and the payment of
such Additional Amounts cannot be avoided by the use of any reasonable measures
available to the Company.
"Taxing Authority" means any nation or government or any political
subdivision thereof or any agency or instrumentality therein and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 9.5.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Global Security" has the meaning set forth in Section 3.3(d).
"Unrestricted Securities" means an Unrestricted Global Security and all
other Securities that are not Restricted Securities, including Exchange
Securities.
"Unrestricted Subsidiary" means any subsidiary of the Company that does not
own any Equity Interest of, or own or hold any Lien on any property of, the
Company or any other Subsidiary of the Company and that, at the time of
determination, shall be an Unrestricted Subsidiary (as designated by the
Supervisory Board of the Company); provided that such Subsidiary at the time of
such designation (a) has no Indebtedness other than Non-Recourse Indebtedness;
(b) is not party to any agreement, contract, arrangement or understanding with
the Company or any Subsidiary of the Company, unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company; (c) is a Person with respect to
which neither the Company nor any of its Subsidiaries has any direct or indirect
obligation (x) to subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; and (d) has not guaranteed or
otherwise directly or indirectly provided credit support for any Indebtedness of
the Company or any of its Subsidiaries. The Supervisory Board of the Company may
designate any Unrestricted Subsidiary to be a Subsidiary, provided that (1) no
Default or Event of Default is existing or will occur as a consequence thereof
and (2) immediately after giving effect to such designation, on a pro forma
basis, the Company could incur at least $1.00 (or its foreign currency
equivalent) of Indebtedness pursuant to the Debt Incurrence Ratio of Section
10.11. Each such designation shall be evidenced by filing with the Trustee a
certified copy of the resolution giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Wholly Owned Subsidiary" means a Subsidiary all the Equity Interests of
which (other than directors' qualifying shares) are owned by the Company or one
or more Wholly Owned Subsidiaries of the Company.
SECTION 1.2 Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a condition
precedent) relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than pursuant to Section 10.9(a))
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be Consolidated (with
proper identification of each matter covered therein) and form one instrument.
SECTION 1.4 Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 6.1) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner that the Trustee deems sufficient.
(c) The principal amount at maturity and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 1.5 Notices. Any notice or communication shall be sufficiently
given if in writing and delivered in person, by facsimile and confirmed by
overnight courier, or mailed by first-class mail addressed as follows:
if to the Company:
United Pan-Europe Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attention: General Counsel and Treasurer
Facsimile: 31 20 778 9841
Telephone: 31 20 778 9840
with a copy to:
Holme, Roberts & Owen LLP
Heathcoat House
20 Savile Row
London W1X 1AE
England
Attention: Paul G. Thompson
Facsimile: 44 171 287 9344
Telephone: 44 171 494 5600
if to the Trustee or Paying Agent:
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency and Trust Services
Facsimile: 44 171 508 3879
Telephone: 44 171 508 3815
if to the Luxembourg Paying and Transfer Agent:
Banque International a Luxembourg
69 route d'Esch
Luxembourg L-2953
c/o the Trustee
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders by the Company or the Trustee, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. As long as the Securities are listed on the Luxembourg
Stock Exchange and notice is required by the rules of the Luxembourg Stock
Exchange, such notice shall be sufficiently given by publication of such notice
to Holders of the Securities in English will be in a leading newspaper having
general circulation in Luxembourg (which is expected to be the Luxembourg Wort)
or, if such publication is not practicable, in one other leading English
language daily newspaper with general circulation in Europe, such newspaper
being published on each business day in morning editions, whether or not it
shall be published in Saturday, Sunday or holiday editions. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.9 Separability Clause. In case any provision in this Indenture or
in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto, any Paying Agent, any Security Registrar and their successors hereunder
and the Holders any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.11 Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the law of the State of New York
including without limitation Section 5-1401 and 5-1402 of the New York General
Obligation Law and New York Civil Practice Laws and Rules 327(b), as applied to
contracts made and performed within the State of New York, without regard to
conflicts of law. The Company hereby irrevocably submits to the jurisdiction of
any New York State court sitting in the borough of Manhattan in the city of New
York or any federal court sitting in the borough of Manhattan in the city of New
York in respect of any suit, action or proceeding arising out of or relating to
this Indenture and the Securities, and irrevocably accepts for itself and in
respect of its property, generally and unconditionally, jurisdiction of the
aforesaid courts. The Company irrevocably waives, to the fullest extent they may
effectively do so under applicable law, trial by jury and any objection which
they may now or hereafter have to the laying of the venue of any such suit,
action or proceeding bought in any such court and any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum. Nothing herein shall affect the right of the Trustee or any
Holder to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Company in any other
jurisdiction.
SECTION 1.12 Conflict with Trust Indenture Act. Prior to the issuance of
the Exchange Securities or the effectiveness of the Shelf Registration
Statement, the Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. Upon the issuance of the Exchange Securities or the
effectiveness of the Shelf Registration Statement, this Indenture shall be
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions. If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any provision of
the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 1.13 Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, or Stated Maturity or Maturity of any Security shall not be a
Business Day at a place of payment, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of principal of (or premium, if
any) or interest need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity;
provided that no interest shall accrue solely by virtue of such delay for the
period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or Maturity, as the case may be.
SECTION 1.14 No Personal Liability of Board Members, Officers, Employees
and Shareholders. No board member, director, officer, employee, agent,
authorized representative, incorporator or shareholder of the Company, as such,
shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation, solely by reason of its status as a board
member, director, officer, employee, agent, authorized representative,
incorporator or shareholder of the Company. By accepting a Security, the Trustee
on behalf of each Holder waives and releases all such liability (but only such
liability). The waiver and release are part of the consideration for issuance of
the Securities.
SECTION 1.15 Independence of Covenants. All covenants and agreements in
this Indenture shall be given independent effect so that if a particular action
or condition is not permitted by any of such covenants, the fact that it would
be permitted by an exception to, or be otherwise within the limitations of,
another covenant shall not avoid the occurrence of a Default if such action is
taken or condition exists.
SECTION 1.16 Exhibits. All exhibits attached hereto are by this reference
made a part hereof with the same effect as if herein set forth in full.
SECTION 1.17 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 1.18 Duplicate Originals. The parties may sign any number of copies
of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 1.19 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instruments, designated and
appointed CT Corporation System, 1633 Broadway, New York, NY 10019 ("CT
Corporation System") (and any successor entity), as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to this Indenture that may be instituted in any federal or state court in the
Borough of Manhattan, City of New York, State of New York or brought under
federal or state securities laws, and represent and warrant that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding and (iii) agrees that service of
process upon CT Corporation System and written notice of said service to the
Company, in accordance with Section 1.5 shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corporation System in full force
and effect for as long as any of the Securities remain Outstanding (subject to
the limitation set forth in clause (i)); provided, however, that the Company
may, and to the extent CT Corporation System ceases to be able to be served on
the basis contemplated herein shall, by written notice to the Trustee, designate
such additional or alternative agent for service of process under this Section
1.19 that (i) maintains an office located in the Borough of Manhattan City of
New York, State of New York, and (ii) is either (x) United States counsel for
the Company or (y) a corporate service company which acts as agent for service
of process for other persons in the ordinary course of its business. Such
written notice shall identify the name of such agent for service of process and
the address of the office of such agent for service of process in the Borough of
Manhattan, City of New York, State of New York.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court of (i) any jurisdiction in which the Company owns
or leases property or assets, (ii) the United States or the State of New York or
(iii) the Netherlands or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property and assets or this
Agreement or any of the Notes or actions to enforce judgments in respect of any
thereof, the Company hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
SECTION 1.20 Judgment Currency. The Company hereby agrees to indemnify the
Trustee, its directors, its officers and each person, if any, who controls the
Trustee within the meaning of Section 15 of the Act or Section 20 of the Ex
change Act against any loss incurred by such person as a result of any judgment
or order being given or made against the Company for any U.S. Dollar amount due
under this Agreement and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than United States Dollars and as a
result of any variation as between (i) the rate of exchange at which the United
States Dollar amount is converted into the Judgment Currency for the purpose of
such judgment or order and (ii) the spot rate of exchange in The City of New
York at which such party on the date of payment of such judgment or order is
able to purchase United States Dollars with the amount of the Judgment Currency
actually received by such party. The foregoing indemnity shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, United States
Dollars.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. The Securities and the Trustee's certificate
of authentication with respect thereto shall be in substantially the form set
forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or system on which the Securities may
be listed or eligible for trading or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The Certificated Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange or system on which the Securities may be listed
or eligible for trading, all as determined by the managing directors, officers
and authorized representatives of the Company executing such Securities, as
evidenced by their execution of such Securities.
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms. The aggregate principal amount at maturity of
Securities which may be authenticated and delivered under this Indenture is
initially limited to $735,000,000, except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6, 10.10, 10.16 or 11.8.
The Initial Securities shall be known and designated as the "$735,000,000
12 1/2% Senior Discount Notes Due 2009" and the Exchange Securities shall be
known as the "$735,000,000 12 1/2% Series B Senior Discount Notes". The final
Stated Maturity of the Securities shall be August 1, 2009. The Accreted Value of
the Securities will accrete at a rate of 12 1/2% per annum, until they reach
their principal amount at maturity on August 1, 2004. Interest on the Securities
will be payable semiannually in arrears on February 1 and August 1 of each year,
commencing February 1, 2005, to the Holders of record on the immediately
preceding Regular Record Date.
Principal of, premium, if any, and interest on the Securities will be
payable, and the Securities may be exchanged or transferred, at the office or
agency of the Company in The City of New York and in London, which, unless
otherwise provided by the Company, will be the offices of the Trustee. At the
option of the Company, interest may be paid by check mailed to addresses of the
Persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities shall be redeemable as provided in Article Eleven.
At the election of the Company, the entire Indebtedness on the Securities
or certain of the Company's obligations and covenants and certain Events of
Default thereunder may be defeased as provided in Article Twelve.
The Securities will be general, senior, unsecured obligations of the
Company, ranking pari passu in right of payment with each other.
SECTION 3.2 Denominations. The Securities (including any Global Security)
shall be issuable only in registered form without coupons and only in
denominations of US$1,000 principal amount at maturity or any integral multiple
of US$1,000 principal amount at maturity above such amount. The Securities shall
not be issuable in bearer form. No service charge shall be made for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
SECTION 3.3 Execution, Authentication, Delivery and Dating. (a) The
Securities shall be executed on behalf of the Company by its Chief Executive
Officer, its President, a Vice President or a managing director (being an
executive officer of the Company with due authority granted by the management
board of the Company to execute Securities) of the Company. The signature of any
of these officers or directors on the Securities may be manual or facsimile
signatures of the present or any future such authorized officer or director and
may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers or directors of the Company shall bind the
Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. In addition, any
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Security, shall be the proper officers or
directors of the Company, although at the date of such Security or of the
execution of this Indenture any such Person was not such officer or director.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication. No Security
shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
On the Issue Date the Trustee shall authenticate Initial Securities for
original issue in the aggregate principal amount at maturity not to exceed
$735,000,000, upon a written order of the Company in the form of an Officer's
Certificate. Such order shall specify the amount of the Initial Securities to be
authenticated and the date on which the original issue of Initial Securities is
to be authenticated. In addition, the Trustee shall authenticate Exchange
Securities for original issue in the aggregate principal amount at maturity of
up to $735,000,000 upon a written order of the Company in the form of an
Officer's Certificate, provided that such Exchange Securities shall be issuable
only upon the valid surrender for cancellation of Initial Securities of a like
aggregate principal amount at maturity in accordance with the Registration
Rights Agreement. The Officer's Certificate shall specify the amount of Exchange
Securities to be authenticated and the date on which the Exchange Securities are
to be authenticated. Upon the written order of the Company in the form of an
Officer's Certificate, the Trustee shall authenticate Securities in substitution
of Securities originally issued to reflect any name change of the Company.
(b) The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(c) Restricted Global Securities. (i) The Initial Securities offered and
sold in reliance on Rule 144A shall be issued in the form of one or more global
securities (the "Restricted Global Security") in definitive, fully registered
form without interest coupons, with such applicable legends as are provided for
in Exhibit A hereto, except as otherwise permitted herein.
(ii) Each Restricted Global Security shall be registered in the name of DTC
or its nominee and deposited with the Trustee, at its Corporate Trust Office, as
custodian for DTC, duly executed by the Company and authenticated by the Trustee
as herein after provided. The aggregate principal amount at maturity of a
Restricted Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for DTC, in
connection with a corresponding decrease or increase in the aggregate principal
amount at maturity of a Security that is a Regulation S Global Security (as
defined below) or a Security that is an Unrestricted Global Security (as defined
below), as hereinafter provided.
(d) Regulation S Global Securities. (i) Initial Securities offered and sold
in reliance on Regulation S shall be initially issued in the form of one or more
Global Securities in definitive, fully registered form without interest coupons,
with such applicable legends as are provided for in Exhibit A hereto, except as
otherwise permitted herein. Until such time as the Restricted Period shall have
terminated, such Global Securities shall be referred to herein as the
"Regulation S Global Security." After such time as the Restricted Period shall
have terminated, such Regulation S Global Securities shall be referred to
herein, as the "Unrestricted Global Securities."
(ii) Each Regulation S Global Security and Unrestricted Global Security
shall be registered in the name of DTC or its nominee and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC, duly executed by
the Company and authenticated by the Trustee as hereinafter provided, for credit
to the respective accounts at DTC of the depositaries for Euroclear or
Cedelbank. The aggregate principal amount at maturity of each Regulation S
Global Security (or Unrestricted Global Security) may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for DTC, in connection with a corresponding decrease or increase in
the aggregate principal amount at maturity of a Restricted Global Security, as
hereinafter provided.
(e) The Exchange Securities which are issued in exchange for Initial
Securities shall be issued initially in the form of one or more permanent Global
Securities in definitive, fully registered form without interest coupons,
substantially in the form set forth in Exhibit A, deposited with the Trustee, as
custodian for DTC, and shall bear the applicable legends relating to Global
Securities set forth in Exhibit A that are required to appear on such
Securities. Exchange Securities shall constitute Unrestricted Securities.
(f) In case the Company, pursuant to Article Eight, shall be Consolidated
or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount at maturity; and the Trustee, upon Company
Request of the successor Person, shall authenticate and deliver Securities as
specified in such request for the purpose of such exchange. If Securities shall
at any time be authenticated and delivered in any new name of a successor Person
pursuant to this Section in exchange or substitution for or upon registration of
transfer of any Securities, such successor Person, at the option of the Holders
but without expense to them, shall provide for the exchange of all Securities at
the time Outstanding for Securities authenticated and delivered in such new
name.
SECTION 3.4 Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount at
maturity of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 3.5 Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.2 being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers and exchange of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Security Registrar") for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 10.2, the Company shall
execute, the Trustee shall authenticate and deliver, and the Security Registrar
shall register, if the requirements, of such transfer are met, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount at
maturity.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount at maturity (including an exchange of Initial Securities for Exchange
Securities), upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, the Trustee shall authenticate and deliver, and the Security
Registrar shall register, the Securities which the Holder making the exchange is
entitled to receive, provided that no exchange of Initial Securities for
Exchange Securities shall occur until an Ex change Offer Registration Statement
shall have been declared effective by the SEC (confirmed in an Officer's
Certificate) and that the Initial Securities to be exchanged for the Exchange
Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6, 10.10, 10.16 or 11.8 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the selection of Securities to be redeemed under Section 11.4 and
ending at the close of business on the day of such mailing of the relevant
notice of redemption or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security is surrendered to the Trustee or (ii) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount at maturity, bearing
a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved. Interest on any
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 10.2; provided, however,
that each installment of interest may at the Company's option be paid (i) by
mailing a check for such interest, payable to or upon the written order of the
Person entitled thereto pursuant to Section 3.8, to the address of such Person
as it appears in the Security Register, or (ii) by wire transfer of such
interest in immediately available funds to an account located in the United
States maintained by the DTC.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") must be
paid by the Company, at its election in each case, as provided in paragraph (1)
or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date, and in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be given in the manner provided for in
Section 1.6, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following paragraph(2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange or system on which the Securities may be listed or
eligible for trading, and upon such notice as may be required by such
exchange or system, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners. Prior to the due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal or Accreted Value of (and premium, if any) and (subject to Sections
3.5 and 3.7) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9 Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 3.10 Computation of Interest. Interest on the Securities shall be
computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers. The Company in issuing the
Securities may use a "CUSIP" and/or "ISIN" number (if then generally in use),
and if so, the Trustee shall use "CUSIP" and/or "ISIN" numbers in notices of
redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of such numbers either as printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company shall promptly notify the Trustee in writing of
any change in the "CUSIP" or "ISIN" numbers of the Securities.
SECTION 3.12 Book-Entry Provisions for Global Securities, Certificated
Securities. Except as indicated below in this Section 3.12, the Securities shall
be represented only by Global Securities. The Global Securities shall be
deposited with a Depositary for such Securities (and shall be registered in the
name of such Depositary or its nominee). The Depositary for the Securities shall
be DTC unless the Company appoints a successor Depositary by delivery of a
Company Order to the Trustee specifying such successor Depositary.
All payments on a Global Security will be made to DTC or its nominee, as
the case may be, as the registered owner and Holder of such Global Security. The
Company will be fully discharged by payment to or to the order of the Depositary
from any responsibility or liability in respect of each amount so paid. Upon
receipt of any such payment in respect of a Global Security, DTC will credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount at maturity of such
Global Security as shown on the records of DTC
Unless and until it is exchanged in whole or in part for Certificated
Securities, a Global Security may not be transferred except as a whole by the
relevant Depositary or nominee thereof to another nominee of the Depositary or
to a successor of the Depositary or a nominee of such successor.
Owners of beneficial interests in Global Securities shall be entitled or
required, as the case may be, but only under the circumstances described in this
Section 3.12, to receive physical delivery of Certificated Securities.
Interests in a Global Security shall be exchangeable or transferable, as
the case may be, for Certificated Securities if (i) DTC notifies the Company
that it is unwilling or unable to continue as Depositary for such Global
Security, or DTC ceases to be a "Clearing Agency" registered under the United
States Securities Exchange Act of 1934, and a successor depositary is not
appointed by the Company within one hundred and twenty (120) days, or (ii) an
Event of Default has occurred and is continuing with respect thereto and the
owner of a beneficial interest therein requests such exchange or transfer. Upon
the occurrence of any of the events described in the preceding sentence, the
Company shall cause the appropriate Certificated Securities to be delivered to
the owners of beneficial interests in the Global Securities or the Participants
in DTC, Euroclear or Cedelbank through which such owners hold their beneficial
interest. Certificated Securities shall be exchange able or transferable for
interests in other Certificated Securities as described herein.
SECTION 3.13 Transfer and Exchange of Securities. (a) Obligations with
Respect to Transfers and Exchanges of Securities. Upon surrender for
registration of transfer of any Security of a series to the appropriate
Registrar, and subject to the other provisions of this Section 3.13, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of such
series of any authorized denominations and of a like aggregate principal amount
at maturity.
At the option of the Holder, and subject to the other provisions of this
Section 3.13, Securities of any series may be exchanged for other Securities of
such series of any authorized denominations and of a like aggregate principal
amount at maturity, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, and
subject to the other provisions of this Section 3.13, the Company shall execute,
and the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and subject to the other provisions of this Section 3.13, entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Trustee or the Common
Depositary) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the appropriate Registrar and be
duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection with any
registration of transfer or exchange of Securities.
(b) Transfer and Exchange of Global Securities. Notwithstanding any
provisions of this Indenture or the Securities, transfers of a Global Security,
in whole or in part, transfers and exchanges of interests therein of the kinds
described in clauses (ii), (iii) and (iv) below and exchange of interests in
Global Securities or of other Securities as described in clause (v) below, shall
be made only in accordance with this Section 3.13(b). Transfers and exchanges
subject to this Section 3.13 shall also be subject to the other provisions of
this Indenture that are not inconsistent with this Section 3.13.
(i) General. A Global Security may not be transferred, in whole or in
part, to any Person other than DTC or a nominee thereof or a successor to
DTC or its nominee, and no such transfer to any such other Person may be
registered; provided that this clause (i) shall not prohibit any transfer
of a Security that is issued in exchange for a Global Security but is not
itself a Global Security. No transfer of a Security of any series to any
Person shall be effective under this Indenture or the Securities of such
series unless and until such Security has been registered in the name of
such Person. Nothing in this Section 3.13(b)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Global Security
effected in accordance with the other provisions of this Section 3.13(b).
(ii) Restricted Global Security to Regulation S Global Security. If
the Holder of a beneficial interest in a Restricted Global Security of any
series wishes at any time to transfer such interest to a Person who wishes
to take delivery thereof in the form of a beneficial interest in a
Regulation S Global Security of such series, such transfer may be effected,
subject to the rules and procedures of DTC, Euroclear and Cedelbank, in
each case to the extent applicable (the "Applicable Procedures"), only in
accordance with the provisions of this Section 3.13(b)(ii). Upon receipt by
the Registrar of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Registrar, to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in a Regulation S Global Security in a principal amount
at maturity equal to that of the beneficial interest in a Restricted Global
Security to be so transferred; (B) a written order given in accordance with
the Applicable Procedures containing information regarding the account of
the Agent Member to be credited with, and the account of the Agent Member
to be debited for, such beneficial interest; and (C) a certificate in
substantially the form set forth in Exhibit B given by the Holder of such
beneficial interest, the principal amount at maturity of a Restricted
Global Security shall be reduced, and the principal amount at maturity of a
Regulation S Global Security shall be in creased, by the principal amount
at maturity of the beneficial interest in a Restricted Global Security to
be so transferred, in each case by means of an appropriate adjustment on
the records of the Registrar, and the Registrar shall instruct DTC or its
authorized representative to make a corresponding adjustment to its records
and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in a Regulation S
Global Security having a principal amount at maturity equal to the amount
so transferred.
(iii) Restricted Global Security to Unrestricted Global Security. If
the Holder of a beneficial interest in a Restricted Global Security of any
series wishes at any time to transfer such interest to a Person who wishes
to take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Security of such series, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this Section
3.13(b)(iii). Upon receipt by the Registrar, of (A) written instructions
given in accordance with the Applicable Procedures from an Agent Member
directing the Registrar to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in an Unrestricted Global
Security in a principal amount at maturity equal to that of the beneficial
interest in a Restricted Global Security to be so transferred, (B) a
written order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited with,
and the account of the Agent Member to be debited for, such beneficial
interest, and (C) a certificate in substantially the form set forth in
Exhibit C given by the Holder of such beneficial interest, the principal
amount at maturity of the Restricted Global Security shall be reduced, and
the principal amount at maturity of an Unrestricted Global Security shall
be increased, by the principal amount at maturity of the beneficial
interest in a Restricted Global Security to be so transferred, in each case
by means of an appropriate adjustment on the records of the Registrar and
the Registrar shall instruct DTC or its authorized representative to make a
corresponding adjustment to its records and to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in an Unrestricted Global Security having a principal
amount equal to the amount at maturity so transferred.
(iv) Regulation S Global Security or Unrestricted Global Security to
Restricted Global Security. If the Holder of a beneficial interest in a
Regulation S Global Security of any series or an Unrestricted Global
Security of any series wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in a Restricted Global Security of such series, such transfer may
be effected, subject to the Applicable Procedures, only in accordance with
this Section 3.13(b)(iv). Upon receipt by the Registrar of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Registrar to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in a Restricted
Global Security in a principal amount at maturity equal to that of the
beneficial interest in a Regulation S Global Security or an Unrestricted
Dollar Denominated Global Security to be so transferred, (B) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited with,
and the account of the Agent Member to be debited for, such beneficial
interest, and (C) with respect to a transfer of a beneficial interest in a
Regulation S Global Security (but not an Unrestricted Global Security) to a
Person whom the transferor reasonably believes is a QIB, a certificate in
substantially the form set forth in Exhibit D given by the Holder of such
beneficial interest, the principal amount at maturity of a Restricted
Global Security shall be increased, and the principal amount at maturity of
a Regulation S Global Security or an Unrestricted Global Security shall be
reduced, by the principal amount at maturity of the beneficial interest in
a Restricted Global Security to be so transferred, in each case by means of
an appropriate adjustment on the records of the Registrar and the Registrar
shall instruct DTC or its authorized representative to make a corresponding
adjustment to its records and to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest
in the Restricted Global Security having a principal amount at maturity
equal to the amount so transferred.
(v) Exchanges of Global Security for Non-Global Security. In the event
that a Global Security or any portion thereof is exchanged for Securities
other than Global Securities, such other Securities may in turn be
exchanged (on transfer or otherwise) for Securities that are not Global
Securities or for beneficial interests in a Global Security (if any is then
Outstanding) only in accordance with such procedures, which shall be
substantially consistent with the provisions of clauses (i) through (iv)
above and (vi) below (including the certification requirements intended to
insure that transfers and exchanges of beneficial interests in a Global
Security comply with Rule 144A, Rule 144 or Regulation S, as the case may
be) and any Applicable Procedures, as may be from time to time adopted by
the Company and the Trustee.
(vi) Interest in Regulation S Global Security to be Held Through
Euroclear or Cedelbank. Until the termination of the Restricted Period with
respect thereto, interests in a Regulation S Global Security may be held
only through Agent Members acting for and on behalf of Euroclear and
Cedelbank, provided that this clause (vi) shall not prohibit any transfer
in accordance with Section 3.13(b)(iv) hereof.
(c) Legends. Each Restricted Security and Global Security issued hereunder
shall, upon issuance, bear the legends set forth in Exhibit A hereto that are
required to be applied to such a Security and such required legends shall not be
removed from such Security except as provided in the next sentence or Section
3.13(e). The legend required for a Restricted Security may be removed from a
Security if there is delivered to the Company and the appropriate Registrar such
satisfactory evidence, which may include an opinion of independent counsel
licensed to practice law in the State of New York, as may be reasonably required
by the Company that neither such legend nor the restrictions on transfer set
forth therein are required to ensure that transfers of such Security will not
violate the registration requirements of the Securities Act. Upon provision of
such satisfactory evidence, the Trustee, at the direction of the Company, shall
authenticate and deliver in exchange for such Security another security or
securities having an equal aggregate principal amount at maturity that does not
bear such legend. If such a legend required for a Restricted Security has been
removed from a Security as provided above, it shall not be a Restricted Security
and no other Security issued in exchange for all or any part of such Security
shall bear such legend, unless the Company has reasonable cause to believe that
such other security is a "restricted security" within the meaning of Rule 144
and instructs the Trustee in writing to cause a legend to appear thereon.
(d) Global Securities. The provisions of clauses (i), (ii), (iii), and (iv)
below shall apply only to Global Securities;
(i) General. Each Global Security authenticated under this Indenture
shall be registered in the name of the appropriate Depositary or a nominee
thereof and delivered to such Depositary or a nominee thereof or custodian
therefor.
(ii) Transfer to Persons other than Depositary. Notwithstanding any
other provision in this Indenture or the Securities, no Global Security may
be exchanged in whole or in part for Securities registered, and no transfer
of a Global Security in whole or in part may be registered, in the name of
any person other than the appropriate Depositary or a nominee thereof
unless (A) DTC notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security, or DTC ceases to be a
"Clearing Agency" registered under the United States Securities Exchange
Act of 1934, and a successor depositary is not appointed by the Company
within one hundred and twenty (120) days, or (B) an Event of Default has
occurred and is continuing with respect thereto and the owner of a
beneficial interest therein requests such exchange or transfer. Any Global
Security exchanged pursuant to clause (A) above shall be so exchanged in
whole and not in part and any Global Security ex changed pursuant to clause
(B) above may be exchanged in whole or from time to time in part as
directed by DTC. Any Security issued in exchange for a Global Security or
any portion thereof shall be a Global Security, provided that any such
Security so issued that is registered in the name of a Person other than
the appropriate Depositary or a nominee thereof shall not be a Global
Security.
(iii) Global Security to Certificated Security. Securities issued in
exchange for a Global Security or any portion thereof pursuant to clause
(ii) above shall be issued in definitive, fully registered form without
interest coupons, shall have an aggregate principal amount at maturity
equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the appropriate Depositary shall designate and shall bear
any legends required hereunder. Any Global Security to be exchanged in
whole shall be surrendered by the appropriate Depositary to the Security
Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or if the
Trustee is acting as custodian for DTC or its nominee with respect to such
Global Security, the principal amount at maturity thereof shall be reduced,
by an amount equal to the portion thereof to be so ex changed, by means of
an appropriate adjustment made on the records of the Trustee, as
Authenticating Agent. Upon any such surrender or adjustment, the Trustee
shall authenticate and deliver the Security issuable on such exchange to or
upon the order of the Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the events specified in
clause (ii) above, the Company will promptly make available to the Trustee
a supply of Certificated Securities in definitive, fully registered form,
without interest coupons, sufficient to meet the Trustee's requirements
hereunder.
(v) No Rights of Agent Members in Global Security. No Agent Member of
any Depositary nor any other Persons on whose behalf Agent Members may act
shall have any rights under this Indenture with respect to any Global
Security, or under any Global Security, and each Depositary or its nominee,
as the case may be, may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner and Holder of
such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the applicable
Depositary or such nominee, as the case may be, or impair, as between DTC,
Euroclear and Cedelbank, their respective Agent Members and any other
person on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a Holder
of any Security.
SECTION 3.14 Special Transfer Provisions. (a) Transfers to Institutional
Accredited Investors. If Securities are being transferred to an Institutional
Accredited Investor, the Securities shall be accompanied by delivery of a
transferee certificate for Institutional Accredited Investors substantially in
the form of Exhibit G hereto and an opinion of counsel reasonably satisfactory
to the Company to the effect that such transfer is in compliance with the
Securities Act.
(b) Other Transfers. If a Holder proposes to transfer a Security pursuant
to any exemption from the registration requirements of the Securities Act other
than as provided for above, the Security Registrar shall only register such
transfer or exchange if such transferor delivers to the Security Registrar and
the Trustee an Opinion of Counsel satisfactory to the Company and the Security
Registrar that such transfer is in compliance with the Securities Act and the
terms of this Indenture; provided that the Company may, based upon the opinion
of its counsel, instruct the Security Registrar by a Company Order not to
register such transfer in any case where the proposed transferee is not a QIB,
an Institutional Accredited Investor or a non-U.S. Person.
(c) General. By its acceptance of any Security bearing Legends, each Holder
of such a Security acknowledges the restrictions on transfer of such Security
set forth in this Indenture and in the Legends and agrees that it will transfer
such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.12 or this Section
3.14 for a period of two years, after which time such letters, notices and other
written communications shall at the written request of the Company be delivered
to the Company. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Security Registrar.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Securities expressly provided
for herein or pursuant hereto) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture when
(1) either
(a) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6 and (ii)
Securities for whose payment money has theretofore been deposited in
trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust as provided in Section 10.3) have been
delivered to the Trustee for cancellation; or
(b) (i) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable, or (ii) the
Company has given irrevocable and unconditional notice of redemption
for all of the Outstanding Securities within 60 days of such notice
pursuant to the redemption provisions of this Indenture,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and accrued interest
(and Liquidated Dam ages, if any,) to the date of such deposit;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the
Securities at Maturity or the Redemption Date, as the case may be,
which must be within 60 days thereof;
(4) the Holders of the Securities have a valid, perfected,
exclusive security interest in such trust; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to clause(1)(b) of this Section
4.1, the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money. Subject to the provisions of the
last paragraph of Section 10.3, all money deposited with the Trustee pursuant to
Section 4.1 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (or Liquidated Damages, if
any) on any Security when it becomes due and payable, and continuance of
such default for a period of 30 days;
(2) default in the payment of the principal of, Accreted Value of or
premium, if any, on any Security as and when the same becomes payable at
its Maturity, or upon redemption, by acceleration or otherwise, including,
without limitation, payment of the Change of Control Purchase Price or the
Asset Sale Offer Price, or otherwise on Securities validly tendered and not
properly withdrawn pursuant to a Change of Control Offer or Asset Sale
Offer, as applicable; or
(3) failure to perform any other covenant or agreement of the Company
under this Indenture or Securities and, except for the provisions under
Section 10.10, 10.16, Article Eight and Section 10.12, continued for 30
days after written notice to the Company by the Trustee or to the Company
and the Trustee by Holders of at least 25% in aggregate principal amount at
maturity of the Outstanding Securities;
(4) a default in Indebtedness of the Company or any of its
Subsidiaries with an aggregate amount Outstanding in excess of $50,000,000
(or its foreign currency equivalent) (a) resulting from the failure to pay
principal at maturity or otherwise at the end of any applicable grace
period for such payment pursuant to the original terms of such Indebtedness
or (b) as a result of which the maturity of such Indebtedness has been
accelerated prior to its stated maturity; or
(5) the rendering of a final judgment or final judgments not covered
by insurance in an amount in excess of $50,000,000 (or its foreign currency
equivalent) at any one time against the Company or any of its Subsidiaries
by a court or courts of competent jurisdiction, which judgment or judgments
remain unbonded, undischarged or unstayed for a period of 60 days after the
date on which the right to appeal all such judgments has expired; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary or any other applicable federal,
state or foreign law, or appointing a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Company or any
Significant 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 unstayed and in effect for a period of 60
consecutive days; or
(7) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking reorganization
or relief under the U.S. Federal Bankruptcy Code or any other applicable
federal, state or foreign law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its Indebtedness
generally as they become due.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If an Event
of Default (other than an Event of Default specified in Section 5.1(6) or 5.1
(7) relating to the Company) occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount at
maturity of the Outstanding Securities may declare the Accreted Value and
accrued interest (and Liquidated Damages, if any) of all the Securities to be
due and payable immediately by a notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), and upon any such
declaration such Accreted Value, accrued interest (and Liquidated Damages, if
any) shall become immediately due and payable. If an Event of Default specified
in Section 5.1(6) or 5.1(7) relating to the Company occurs and is continuing,
then the Accreted Value and accrued interest (and Liquidated Damages, if any) of
all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter provided in this Article Five, the Holders of a majority in
principal amount at maturity of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Securities,
(B) all unpaid Accreted Value of (and premium, if any, on) any
Outstanding Securities which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid Accreted
Value at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all existing Events of Default, other than the non-payment of
amounts of Accreted Value, (or premium, if any,) and interest on the
Securities which have become due solely by such declaration of
acceleration, and except a Default with respect to any provision requiring
a supermajority approval to amend, which Default may only be waived by such
a supermajority, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the Accreted Value of (or
premium, if any, on) any Security at the Maturity thereof, the Company
will, upon demand of the Trustee, pay to the Trustee for the benefit of the
Holders of such Securities the whole amount then due and payable on such
Securities for Accreted Value (and premium, if any) and interest, and
interest on any overdue Accreted Value (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon any
overdue installment of interest, at the rate borne by the Securities, and,
in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
Accreted Value, premium, if any, or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of Accreted Value
(and premium, if any) and interest (and Liquidated Damages, if any) owing
and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name and
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money collected by the
Trustee pursuant to this Article Five shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of Accreted Value (or premium, if any) or interest, upon
presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for Accreted
Value of (and premium, if any) and interest (and Liquidated Damages, if
any) on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
Accreted Value (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 Limitation on Suits. No Holder of any Securities shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) the Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount at
maturity of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) the Trustee is indemnified and/or secured (whether by payment in
advance or otherwise) to its reasonable satisfaction;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or
more in aggregate principal amount at maturity of the Outstanding
Securities; it being understood and intended that no one or more Holders
shall have any right in any manner whatsoever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment as provided herein (including, if applicable, Article Twelve)
and in such Security of the Accreted Value of (and premium, if any) and (subject
to Section 3.7) interest (and Liquidated Damages, if any) on such Security on
the respective Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of not less than a majority in
aggregate principal amount at maturity of the Outstanding Securities shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting
unless it has received indemnity reasonably satisfactory to it.
SECTION 5.13 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount at maturity of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past Default hereunder and
its consequences, except a Default
(1) in respect of the payment of the principal of, Accreted Value of
(or premium, if any), or interest (and Liquidated Damages, if any) on any
Security, or
(2) in respect of a covenant or provision hereof which cannot be
modified or amended without the approval of a supermajority, which Default
may only be waived by such a supermajority; or
(3) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 5.14 Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but, in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
reasonably conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of the requisite amount of the Outstanding Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity reasonably satisfactory to it
against such risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.1.
SECTION 6.2 Notice of Default. Within 60 days after being notified or
becoming aware of the occurrence of any Default hereunder, the Trustee shall
transmit, in the manner and to the extent provided in TIA Section 313(c), notice
of such Default hereunder known to any Responsible Officer of the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the Accreted Value of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
SECTION 6.3 Certain Rights of Trustee. Subject to Section 6.1 and to the
provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of Indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Supervisory Board of the Company may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, receive and conclusively rely upon an Officers'
Certificate and/or an Opinion of Counsel;
(4) the Trustee may consult with counsel and other professional
advisers and the written advice of such counsel or advisers or any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless the Trustee is
indemnified and/or secured (whether by payment in advance or otherwise) to
its reasonable satisfaction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of Indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
nominees, custodians, delegates or attorneys and the Trustee shall not be
responsible for supervising the actions of such agent, nominee, custodian,
delegate or attorney, nor for any misconduct or negligence on the part of
any agent, nominee, custodian, delegate or attorney appointed with due care
by it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture; and
(9) the Trustee shall be entitled to assume that there has been no
Event of Default and that the Company has complied with all of its
obligations hereunder, unless a Responsible Officer of the Trustee has
knowledge to the contrary thereof.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it.
SECTION 6.4 Trustee Not Responsible for Issuance of Securities. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 6.5 May Hold Securities. The Trustee, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust) as agreed in writing between the Company and the Trustee;
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's gross
negligence or bad faith; and
(3) to indemnify the Trustee and its directors, officers, employees
and agents for, and to hold them harmless against, any loss, liability or
expense (including counsel's fees and expenses) without gross negligence or
bad faith on the part of any of them, arising out of or in connection with
the acceptance or administration of this trust, including the costs and
expenses of defending itself or them selves against any claim or liability
in connection with the exercise or performance of any of its or their
powers or duties hereunder.
Upon the occurrence of an Event of Default or a potential Event of Default
or upon the Trustee being required, or considering it necessary, to undertake
duties outside the usual scope of a Trustee, the Trustee will be entitled to
charge additional fees as agreed upon in writing with the Company.
The obligations of the Company under this Section 6.7 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional Indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the
Trustee. As security for the performance of such obligations of the Company, the
Trustee shall have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 5.1(6) or (7), the expenses (including the
reasonable charges and expenses of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section 6.7 shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility; Conflicting Interests.
(a) There shall be at all times a Trustee hereunder which shall be subject to
and comply with the provisions of Section 310(a)(1) of the Trust Indenture Act
and shall have a combined capital and surplus of at least $50,000,000. If such
Corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then, for the purposes of this Section 6.8,
the combined capital and surplus of such Corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.8, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article Six.
(b) The Trustee shall be subject to and comply with Section 310(b) of the
Trust Indenture Act.
SECTION 6.9 Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10.
(b) The Trustee may resign at any time by giving 60 days' written notice
thereof to the Company and without assigning any reason thereto or being
responsible for any costs or expenses occasioned thereby. If the instrument of
acceptance by a successor Trustee required by Section 6.10 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may on behalf of the Company, appoint in its
place a reputable financial institution and the Company shall not unreasonably
object to such appointment or may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in aggregate principal amount at maturity of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, (in the case of Global Securities, as evidenced in writing to the
Trustee by the relevant Depositary or Euroclear or Cedelbank), or
(2) the Trustee shall cease to be eligible under Section 6.8(a) and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months (in the case of Global Securities, as evidenced in writing to the
Trustee by the relevant Depositary or Euroclear or Cedelbank), or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Company, by a Board Resolution, may remove the Trustee or (ii) subject
to TIA Section 315(e), any Holder who has been a bona fide Holder of a
Security for at least six months, (in the case of Global Securities, as
evidenced in writing to the Trustee by the relevant Depositary or Euroclear
or Cedelbank), may on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in aggregate principal amount at maturity of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security for at least six months, (in the
case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 1.6. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
(g) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
SECTION 6.10 Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its fees, costs, expenses,
charges and any other amounts owed to it hereunder, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which
it may be Consolidated, or any Corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any Corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
Corporation shall be otherwise qualified and eligible under this Article Six,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee. In all such cases
such certificates shall have the full force and effect which this Indenture
provides that the certificate of authentication of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 6.12 Trustee Acting in Other Capacities. To the extent that the
Trustee, Banque Internationale a Luxembourg or any other Person appointed
hereunder as Trustee or Paying Agent is acting as Securities Registrar, Common
Depository, Depository or Paying Agent hereunder, the rights, privileges,
immunities and indemnities set forth in this Article Six shall apply to the
Trustee in the additional capacities listed above.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders. Every Holder of
Securities, by receiving and holding the same, agrees with the Company and the
Trustee that none of the Company or the Trustee or any agent of either of them
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders in accordance with TIA Section 3.12,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 7.2 Reports by Trustee. Within 60 days after May 30 of each year
commencing with the first May 30 after the first issuance of Securities, the
Trustee shall transmit to the Holders, in the manner and to the extent provided
in TIA Section 313(c), a brief report dated as of such May 30 if required by TIA
Section 313(a).
SECTION 7.3 Reports by Company. The Company shall file with the Trustee and
deliver to the Holders of Securities the reports and other information required
to be provided by it pursuant to Section 10.8.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms. The
Company shall not, in a single transaction or a series of related transactions,
(i) consolidate with or merge into any other Person or Persons or (ii) directly
or indirectly, sell, lease, convey or transfer all or substantially all of its
assets (computed on a Consolidated basis) to any other Person or group of
affiliated Persons, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a Corporation organized under
the laws of The Netherlands or of the United States of America or any state
or the District of Columbia, any member of the European Economic Area or
Switzerland and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Securities and this
Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
(3) unless such transaction is solely the merger of the Company and
one of its previously existing Wholly Owned Subsidiaries and which
transaction is not in connection with any other transaction, immediately
after giving effect to such transaction, on a pro forma basis, the
Consolidated resulting, surviving or transferee entity would immediately
thereafter be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio set forth in Section 10.11 or, if
not, the Leverage Ratio would immediately thereafter be no greater than the
Leverage Ratio immediately prior thereto;
(4) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the
Person with which the Company has entered into a transaction under this
section, shall have by amendment to its Guarantee of the Securities
confirmed that its Guarantee of the Securities shall apply to the
obligations of the Company or the surviving entity in accordance with the
Securities and this Indenture; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each in form attached hereto as Exhibits E and F
respectively, stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture, complies
with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with, and, with respect to
such Officers' Certificate.
For purposes of this Section 8.1, the transfer (by lease, assignment, sale
or otherwise) of all or substantially all of the properties and assets of one or
more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 8.2 Successor Substituted. Upon any consolidation of the Company
with or merger of the Company with or into any other Corporation or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any Person or Persons in accordance with Section
8.1, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and (except in the case of a lease) be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and, in the
event of any such conveyance or transfer (except in the case of a lease), the
Company shall be discharged of all obligations under this Indenture and the
Securities except with respect to any obligations that arise from, or are
related to, such transaction.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders. Without the consent of
any Holders, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section
6.10; or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided that such action shall not adversely affect
the interests of the Holders in any material respect; or
(7) to provide for collateral securing the Company's obligations under
this Indenture and the Securities; or
(8) to provide for Guarantees by any other Person of the Company's
obligations pursuant to this Indenture and the Securities;
provided such actions shall not adversely affect the interests of Holders in any
material respect.
SECTION 9.2 Indentures with Consent of Holders. With the consent of the
Holders of not less than a majority in aggregate principal amount at maturity of
the Outstanding Securities, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders under this Indenture; provided, however, that:
(i) no such modification may, without the consent of Holders of at
least 66 2/3% in aggregate principal amount at maturity of Outstanding
Securities, modify the provisions of Section 10.10 (including the defined
terms used therein) in a manner adverse to the Holders; and
(ii) no such modification shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of any Security, or reduce the
principal amount or Accreted Value at maturity thereof or the rate of
accretion or interest (or extend the time for payment of interest, if
any) thereon or any premium payable upon the redemption thereof at the
option of the Company, or change the place of payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption at the option of the Company,
on or after the Redemption Date), or reduce the Change of Control
Purchase Price or the Asset Sale Offer Price after the corresponding
Change of Control or Asset Sale has occurred or alter the provisions
(including the defined terms used therein) regarding the right of the
Company to redeem the Securities in a manner adverse to the Holders,
or
(2) reduce the percentage in principal amount at maturity of the
Outstanding Securities, the consent of whose Holders is required for
any such amendment, supplemental indenture or waiver provided for in
this Indenture, or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, or
(4) cause the Securities to become subordinate in right of
payment to any other Indebtedness.
It shall not be necessary for any Act of Holders under this Section 9.2 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Indentures. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is permitted by this Indenture and an Officers' Certificate stating
that all conditions precedent to the execution of such supplemental indenture
have been fulfilled. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
SECTION 9.4 Effect of Indentures. Upon the execution of any supplemental
indenture under this Article Nine, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act. Every supple mental
indenture executed pursuant to this Article Nine shall conform as a matter of
contract or law to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6 Reference in Securities to Indentures. Securities authenticated
and delivered after the execution of any supplemental indenture pursuant to this
Article Nine may bear a notation in form approved by the Trustee and the Company
as to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 9.7 Notice of Indentures. Promptly after the execution by the
Company and the Trustee of any supplemental indenture pursuant to the provisions
of Section 9.2, the Company shall give notice thereof to the Holders of each
Outstanding Security affected, in the manner provided for in Section 1.6,
setting forth in general terms the substance of such supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and Interest. (1) The
Company covenants and agrees for the benefit of the Holders that it shall duly
and punctually pay the principal or Accreted Value of (and premium, if any) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
(2) For the purpose set forth in paragraph (1) above, the Company shall, no
later than 10:00 a.m., New York time, on the Business Day first preceding each
Payment Date, transfer to an account specified by the Trustee such amount in
immediately available and freely transferable U.S. Dollar funds, in the case of
Dollar Denominated Securities, or Euro funds, in the case of Euro Denominated
Securities, as shall be sufficient for the purposes of the payment of principal
of (and premium, if any) and interest (and Liquidated Damages, if any) due to be
paid on the Securities on that date.
(3) The Company shall ensure that not later than the second Business Day
immediately preceding the date on which any payment is to be made to the Trustee
pursuant to this Section 10.1, the Company shall procure that a copy of an
irrevocable payment instruction to the bank through which the payment is to be
made shall be sent to the Trustee.
(4) Unless and until the full amount of any payment due on the Securities
has been made to the Trustee, or unless and until the Trustee is satisfied that
such payment will be made, neither it nor the other Paying Agents shall be bound
to make payments in respect of the Securities hereunder.
(5) If the Trustee or a Paying Agent pays any amounts to the Holders or to
any other Agent at a time when it has not received payment in full from the
Company in respect of such Securities, the Company shall, in addition to paying
amounts due under Section 10.1(2), pay to the Trustee on demand interest thereon
at such a rate as the Trustee shall certify as the aggregate of 1% per annum and
the cost of funding any such payment made by it (as determined by the Trustee)
until the receipt in full by the Trustee of the funds due to it pursuant to
Section 10.1(2).
SECTION 10.2 Maintenance of Office or Agency. The Company shall maintain in
The City of New York and London, and for so long as the Securities are listed on
the Luxembourg Stock Exchange, in Luxembourg, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer or exchange and where notices and
demands (other than service of process) to or upon the Company in respect of the
Securities and this Indenture may be served. The Corporate Trust Office of the
Trustee shall be such office or agency of the Company, unless the Company shall
designate and maintain some other office or agency for one or more of such
purposes. The Company shall give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company hereby initially designates (1) the Trustee at its address set
forth in Section 1.5 hereof as its office or agency in London and Citibank N.A.
(New York branch), 111 Wall Street, New York, New York as its office or agency
in New York, for such purposes, (ii) Banque Internationale a Luxembourg, at its
office or agency in Luxembourg for such purposes and (iii) the Paying Agent at
its address set forth in Section 1.5 hereof.
The Company may also from time to time designate one or more other offices
or agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in The City of New York and, for so long as the Securities
are listed on the Luxembourg Stock Exchange, in Luxembourg, for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and any change in the location of any such other
office or agency.
SECTION 10.3 Money for Security Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of the principal or Accreted Value of (or premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal or
Accreted Value of (or premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, on or before each due date of the principal or Accreted
Value of (or premium, if any) or interest on any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or Accreted Value (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or Accreted Value, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 10.3,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal or
Accreted Value of, premium, if any, or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal or Accreted Value, premium, if any, or interest, of which it
is aware;
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith act under the direction
of the Trustee and pay to the Trustee all sums so held in trust by
such Paying Agent; and
(4) indemnify the Trustee and its officers, directors, employees
and agents against any loss, cost or liability caused by, or incurred
as a result of, such Paying Agent's acts or omissions.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal or Accreted Value of,
premium, if any, or interest on any Security and remaining unclaimed for two
years after such principal or Accreted Value, premium or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York and in London,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.4 Corporate Existence. Subject to Article Eight, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect the corporate existence, rights (charter and statutory) and
franchises of the Company and each Subsidiary; provided, however, that the
Company shall not be required to preserve, with respect to the Company, any such
right or franchise or, with respect to any Subsidiary (subject to all the other
covenants in this Indenture), any such corporate existence, right or franchise,
if the Supervisory Board of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders.
SECTION 10.5 Payment of Taxes and Other Claims. The Company shall pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.6 Maintenance of Properties. The Company shall cause all
properties owned by the Company or any Subsidiary or used or held for use in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 10.6 shall prevent the Company from
discontinuing the maintenance of any of such properties if such discontinuance
is, in the judgment of the Company, desirable in the conduct of its business or
the business of any Subsidiary and not disadvantageous in any material respect
to the Holders.
SECTION 10.7 Insurance. The Company shall at all times keep all of its and
its Subsidiaries' properties which are of an insurable nature insured with
insurers, believed by the Company to be responsible, against loss or damage to
the extent that property of similar character is usually so insured by
Corporations similarly situated and owning like properties.
SECTION 10.8 Provision of Financial Statements. The Company has agreed
that, for so long as any Securities remain Outstanding, whether or not the
Company is subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, the Company will deliver to the Trustee and, to each Holder and to
prospective purchasers of Securities identified to the Company, within 15 days
after the Company is or would have been (if the Company were subject to such
reporting obligations) required to file such with the SEC, annual and quarterly
financial statements substantially equivalent to financial statements that would
have been included in reports filed with the SEC, if the Company were subject to
the requirements of Section 13 or 15(d) of the Exchange Act, including, with
respect to annual information only, a report thereon by the Company's certified
independent public accountants as such would be required in such reports to the
SEC, and, in each case, together with a management's discussion and analysis of
financial condition and results of operations which would be so required and,
unless the SEC will not accept such reports, file with the SEC the annual,
quarterly and other reports which it is or would have been required to file with
the SEC.
Following the effectiveness of the Registration Statement, the Company will
file with the Trustee, at the time it files them with the SEC, copies of the
annual and quarterly reports and the information, documents and other reports
that the Company is required to file with the SEC under Section 13(a) or 15(d)
of the Exchange Act. If the Company ceases to be required to file SEC reports
under the Exchange Act, the Company will nevertheless continue to file such
reports with the Trustee. The Company will furnish copies of the SEC reports to
investors who request them in writing.
SECTION 10.9 Statement by Officers as to Default. (a) The Company shall
deliver to the Trustee, on the date of delivery of each quarterly report to be
delivered pursuant to Section 10.8, and within 14 days of a request by the
Trustee, a brief certificate from the principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all conditions and covenants under this Indenture.
For purposes of this Section 10.9(a), such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
(b) When any Default has occurred and is continuing under this Indenture,
or if the Trustee for or the Holder of any other evidence of Indebtedness of the
Company or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Indebtedness in the
principal amount of less than $50,000,000), the Company shall deliver to the
Trustee by registered or certified mail or by facsimile transmission an
Officers' Certificate specifying such event, notice or other action within five
Business Days of its occurrence.
SECTION 10.10 Purchase of Securities upon Change of Control. (1) (a) Upon
the occurrence of a Change of Control, the Company will be required to make an
offer to each Holder to purchase for cash all or a portion of such Holder's
Securities (provided that the principal amount at maturity of such Securities
must be $1,000 or an integral multiple thereof) pursuant to the offer described
below (the "Change of Control Offer"), at a purchase price in cash equal to 101%
of the Accreted Value thereof on the purchase date plus accrued and unpaid
interest (and Liquidated Damages, if any) not otherwise included in the Accreted
Value to the date of purchase (the "Change of Control Purchase Price").
(b) Within 10 Business Days following a Change of Control, the Company must
send a notice to each Holder which notice shall govern the terms of the Change
of Control Offer. Such notice shall state, among other things, the purchase
date, which must be no later than 35 Business Days from the date of the Change
of Control, other than as may be required by law (the "Change of Control
Purchase Date"). The Change of Control Offer shall remain open for 20 Business
Days following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
Holders electing to have a Security purchased pursuant to a Change of Control
Offer will be required to surrender the Security, by delivery of a form entitled
"Option of Holder to Elect Purchase", obtainable from the Trustee or any Paying
Agent, completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Change of
Control Purchase Date. The Paying Agent promptly will pay the Holders of
Securities so accepted an amount equal to the Change of Control Purchase Price
(together with accrued and unpaid interest and Liquidated Damages, if any) and
the Trustee promptly will authenticate and deliver to such Holders a new
Security equal in principal amount at maturity to any unpurchased portion of the
Security surrendered. The Company will publicly announce the results of the
Change of Control Offer on or as soon as practicable after the Change of Control
Purchase Date.
The notice referred to above shall be a written offer (the "Offer") sent by
the Company by first class mail, postage prepaid, to each Holder of Securities
at its address appearing in the Security Register on the date of the Offer
offering to purchase up to the principal amount at maturity of Securities
specified in such Offer at the Change of Control Purchase Price. Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Change of Control Offer which shall be, subject
to any contrary requirements of applicable law, 20 Business Days after the date
of the Offer and a settlement date (the "Change of Control Purchase Date") for
purchase of Securities within five Business Days after the Expiration Date. The
Company shall notify the Trustee in writing at least 15 Business Days, or a
shorter period that is acceptable to the Trustee, prior to the mailing of the
Offer of the Company's obligation to make a Change of Control Offer, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable the Holders to make an informed
decision with respect to the Change of Control Offer, which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to Section 10.8 (which requirements may be satisfied by delivery of the
documents together with the Offer), (ii) a description of material developments
in the Company's business subsequent to the date of the latest of the financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Change of Control Offer), (iii) if applicable,
appropriate pro forma financial information concerning the Change of Control
Offer and the events requiring the Company to make the Change of Control Offer
and (iv) any other information required by applicable law to be included
therein. The Offer shall contain all instructions and materials necessary to
enable the Holders to tender Securities pursuant to the Change of Control Offer.
The Offer shall also state:
(a) the Section of this Indenture pursuant to which the Offer to Purchase
is being made;
(b) the Expiration Date and the Change of Control Purchase Date;
(c) the aggregate principal amount at maturity of the Outstanding
Securities offered to be purchased by the Company in the Change of Control
Offer, including, if less than 100%, the manner by which the amount has been
determined pursuant to the Section hereof requiring the Change of Control Offer
(the "Purchase Amount");
(d) the Change of Control Purchase Price;
(e) that the Holder may tender all or any portion of the Securities
registered in the name of the Holder and that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 principal amount at maturity;
(f) the place or places where the Securities are to be surrendered for
tender pursuant to the Change of Control Offer;
(g) that any of the Securities not tendered or tendered but not purchased
by the Company will continue to accrete or accrue interest, as the case may be;
(h) that on the Change of Control Purchase Date the Purchase Price will
become due and payable upon the Securities being accepted for payment pursuant
to the Change of Control Offer and that any interest shall cease to accrue on
and after the Change of Control Purchase Date;
(i) that each Holder electing to tender the securities in the purchase will
be required to surrender the Securities at the place or places specified in the
Offer prior to the close of business on the Expiration Date with the Securities
being, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Trustee duly signed by, the Holder or
his attorney duly authorized in writing;
(j) that Holders will be entitled to withdraw all or any portion of the
Securities tendered if the Company or its Paying Agent receives, not later than
the close of business on the Expiration Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount at maturity of the
Securities the Holder tendered, the certificate number of the Securities the
Holder tendered and a statement that such Holder is withdrawing all or a portion
of his tender;
(k) that (i) if the Securities in an aggregate principal amount at maturity
less than or equal to the Purchase Amount are duly tendered and not withdrawn in
the Purchase, the Company shall purchase all the Securities and (ii) if the
Securities in an aggregate principal amount at maturity in excess of the
Purchase Amount are tendered and not withdrawn in the Change of Control Offer,
the Company shall purchase the Securities having an aggregate principal amount
at maturity equal to the Purchase Amount on a pro rata basis with adjustments
that the Company may deem appropriate so that only Securities in denominations
of $1,000 principal amount at maturity or integral multiples thereof shall be
purchased; and
(l) that in the case of any Holder whose Securities are purchased only in
part, the Company shall sign, and the Trustee shall authenticate and deliver to
the Holder of the Securities without service charge, the new Security or
Securities, of any authorized denomination as requested by the Holder, in an
aggregate principal amount at maturity equal to and in exchange for the
unpurchased portion of the Securities so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with
the Offer for such Change of Control Offer.
The Company will not be required to make an offer to purchase any series of
Securities upon a Change of Control if, before the Change of Control occurs, it
has exercised its right to redeem all of the Securities of such series as
described under Section 11.1.
(2) On or before the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) cash sufficient to pay the purchase price (together with accrued
and unpaid interest and Liquidated Damages, if any) of all Securities or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Securities so tendered together with an Officers' Certificate
stating the Securities or portions thereof accepted for payment by the Company.
(3) In the event that the Company makes a Change of Control Offer, the
Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
(4) If the Change of Control Purchase Date hereunder is on or after an
interest payment Record Date and on or before the associated Interest Payment
Date, any accrued and unpaid interest (and Liquidated Damages, if any) due on
such Interest Payment Date will be paid to the Person in whose name a Security
is registered at the close of business on such Record Date, and such interest
(and Liquidated Damages, if applicable) will not be payable to Holders who
tender the Securities pursuant to the Change of Control Offer.
Notwithstanding anything contained in this Indenture to the contrary, the
Company will not, any will not permit any of its Subsidiaries to, incur any
Indebtedness that is contractually subordinate to any other Indebtedness of the
Company unless such Indebtedness is at least as subordinate to the Securities.
SECTION 10.11 Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock. (1) The Company may not, and may not permit any
Subsidiary to, directly or indirectly, issue, assume, guaranty, incur, become
directly or indirectly liable with respect to (including as a result of an
Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an "incurrence"),
any Indebtedness (including Disqualified Capital Stock and Acquired
Indebtedness), other than Permitted Indebtedness. Notwithstanding the foregoing
if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro
forma basis to, such incurrence of Indebtedness; and
(ii) on the date of such incurrence (the "Incurrence Date"), either
(i) the Leverage Ratio of the Company for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to
such incurrence of such Indebtedness and, to the extent set forth in the
definition of Leverage Ratio, the use of proceeds thereof, would not exceed
7.0 to 1.0 (the "Debt Incurrence Ratio"), (ii) the Consolidated Coverage
Ratio of the Company for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness and, to the extent set forth in the
definition of Consolidated Coverage Ratio, the use of proceeds thereof,
would not be less than 1.75 to 1.0, or (iii) after giving effect on a pro
forma basis to such incurrence of Indebtedness, and, to the extent used to
retire other Indebtedness, the use of proceeds therefrom, the amount of
Indebtedness Outstanding of the Company would not exceed 225% of the
Consolidated Invested Equity Capital of the Company,
then the Company may incur such Indebtedness (including Disqualified Capital
Stock and Acquired Indebtedness).
(2) The foregoing limitations of paragraph (1) of this Section 10.11 will
not prohibit:
(a) if no Event of Default shall have occurred and be continuing, the
incurrence by the Company or its Subsidiaries of Indebtedness in an
aggregate amount incurred and Outstanding at any time pursuant to this
subparagraph (a) (plus any refinancing indebtedness incurred to retire,
defease, refinance, replace or refund such Indebtedness) of up to
$400,000,000 (or the equivalent thereof, at the time of incurrence, in the
applicable foreign currencies);
(b) the incurrence by the Company and its Subsidiaries of Indebtedness
pursuant to the Credit Agreement in an aggregate amount incurred and
Outstanding at any time pursuant to this paragraph (b) (plus any
refinancing indebtedness incurred to retire, defease, refinance, replace or
refund such Indebtedness) of up to (E)1 billion, minus the amount of any
such Indebtedness (i) retired with the Net Cash Proceeds from any Asset
Sale applied to reduce permanently the Outstanding amounts or the
commitments with respect to such Indebtedness pursuant to Section 10.16 or
(ii) assumed by a transferee in an Asset Sale;
(c) the incurrence by any Subsidiary of Indebtedness, if on the
Incurrence Date either (1) the Leverage Ratio of such Subsidiary of the
Company for the Reference Period immediately preceding the Incurrence Date,
after giving effect on a pro forma basis to such incurrence of such
Indebtedness and to the extent set forth in the definition of Leverage
Ratio, the use of proceeds thereof, would be no more than 7.0 to 1.0, or
(2) the Consolidated Coverage Ratio of such Subsidiary for the Reference
Period immediately preceding the Incurrence Date, after giving effect on a
pro forma basis to such incurrence of such Indebtedness and, to the extent
set forth in the definition of Consolidated Coverage Ratio, the use of
proceeds thereof, would be no less than 1.75 to 1.00, or (3) after giving
effect on a pro forma basis to such incurrence of such Indebtedness, and,
to the extent used to retire other Indebtedness, the use of proceeds
therefrom, the amount of Indebtedness Outstanding of such Subsidiary would
not exceed 225% of the Consolidated Invested Equity Capital of such
Subsidiary, provided in the case of each of clauses (c)(1), (2) and (3),
the net proceeds therefrom are used in a Related Business of the Company or
any affiliated company of the Company, and provided, further, that for the
purposes of this clause (c) a Subsidiary may be a co-obligor or guarantor
on such Indebtedness of another Subsidiary of the Company (A) if such
co-obligor or guarantor Subsidiary owns (either directly or indirectly
through one or more Subsidiaries of the Company) all or a portion of the
Equity Interests of the Subsidiary of the Company that incurred such
Indebtedness, (B) if all or a portion of the Equity Interests of such
co-obligor or guarantor Subsidiary is owned (either directly or indirectly
through one or more Subsidiaries of the Company) by the Subsidiary that
incurred such Indebtedness or (C) if such co-obligor or guarantor
Subsidiary owns (either directly or indirectly through one or more
Subsidiaries of the Company) all or a portion of the business that will use
the proceeds of such Indebtedness; and
(d) if no Event of Default shall have occurred and be continuing, the
incurrence by Subsidiaries of the Company of Indebtedness pursuant to the
Existing Agreements up to, but not in excess of the maximum applicable
amounts of Indebtedness available for borrowing pursuant to the terms of
each such Existing Agreement as in effect on the date of the Indenture;
provided that, in determining the maximum applicable amounts available, it
shall be assumed that the Company satisfies any applicable conditions to
borrowing.
Indebtedness (including Disqualified Capital Stock) of any Person which is
Outstanding at the time such Person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other Person as a Subsidiary)
or is merged with or into or Consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
Consolidated with the Company or a Subsidiary of the Company, as applicable.
Upon each incurrence, the Company may designate pursuant to which provision
of this Section 10.11 such Indebtedness is being incurred and such Indebtedness
shall not be deemed to have been incurred or Outstanding under any other
provision of this Section 10.11, except as stated otherwise in the foregoing
provisions.
SECTION 10.12 Limitation on Restricted Payments. (1) The Company may not,
and may not permit any of its Subsidiaries to, directly or indirectly, make any
Restricted Payment if, after giving effect to such Restricted Payment on a pro
forma basis:
(A) a Default or an Event of Default shall have occurred and be
continuing,
(B) the Company is not permitted to incur at least $1.00 (or its
foreign currency equivalent) of additional Indebtedness pursuant to the
Debt Incurrence Ratio in Section 10.11, or
(C) the aggregate amount of all Restricted Payments made by the
Company and its Subsidiaries, including after giving effect to such
proposed Restricted Payment, on and after the Issue Date, would exceed,
without duplication (and except to the extent otherwise credited pursuant
to clause (g) of the definition of "Permitted Investment"), the sum of:
(a) (i) the amount of the cumulative Consolidated EBITDA of the
Company, if positive, less 150% of the cumulative Consolidated Fixed
Charges of the Company, for the period (taken as one accounting
period), commencing on the first day of the first full fiscal quarter
commencing after the Issue Date, to and including the last day of the
fiscal quarter ended immediately prior to the date of each such
calculation for which Consolidated financial statements of the Company
are available, provided that such sum shall not be deemed to result in
an amount less than zero for purposes of any calculation pursuant to
this clause (C)(a)(i); or (ii) if such cumulative Consolidated EBITDA
of the Company is zero or less, then the amount of such cumulative
Consolidated EBITDA for such period; plus
(b) the aggregate Net Cash Proceeds received by the Company from
the sale of its Qualified Capital Stock (other than (i) to a
Subsidiary of the Company and (ii) to the extent applied in connection
with a Qualified Exchange), after the Issue Date; plus
(c) to the extent that any Investment (other than a Permitted
Investment) that was made after the Issue Date is sold for cash or
Cash Equivalents or otherwise liquidated or repaid for cash or Cash
Equivalents, the amount of cash or Cash Equivalents received by the
Company, but only to the extent of the lesser of (i) the cash or Cash
Equivalents transferred as a return of capital with respect to such
Investment and (ii) the initial amount of such Investment (in either
case, less the cost of disposition, if any); plus
(d) in the event an Unrestricted Subsidiary is designated as a
Subsidiary, an amount equal to fair market value, at such time, of the
Investment of the Company and its Subsidiaries made after the Issue
Date; provided, however, that such amount shall not exceed the amount
of Investments previously made in such Subsidiary that were counted as
Restricted Payments pursuant to this covenant.
(2) (a) The foregoing clauses (B) and (C) of Section 10.12(1), however,
will not prohibit: (i) any dividend, distribution or payment of dividends on
Disqualified Capital Stock permitted by Section 10.11; and (ii) any repurchase
by the Company of any shares of any class or options to acquire such shares from
any current, future or former directors, officers or employees of the Company or
any of its Subsidiaries or Affiliates, provided that the aggregate amount of all
the repurchases made under this clause shall not exceed $10,000,000 in any
twelve-month period (with unused amounts in any calendar year being carried over
to succeeding calendar years subject to a maximum (without giving effect to the
following proviso) of $14,000,000 in any calendar year); provided, further, that
such amount in any calendar year may be increased by an amount not to exceed (1)
the cash proceeds from the sale of Capital Stock of the Company to its
Supervisory Board members, management board members or officers of the Company
and its Subsidiaries that occurs after the Issue Date, plus (2) the cash
proceeds of key man life insurance policies received by the Company and its
Subsidiaries after the Issue Date; and (b) the foregoing clauses (A), (B) and
(C) of Section 10.12(1) will not prohibit:
(i) any dividend, distribution or other payments by any Subsidiary of
the Company on its Equity Interests that is paid pro rata to all holders of
such Equity Interests;
(ii) a Qualified Exchange;
(iii) the payment of any dividend on Qualified Capital Stock within 60
days after the date of its declaration if such dividend could have been
made on the date of such declaration in compliance with the foregoing
provisions; or
(iv) the payment of dividends by the Company in cash or Qualified
Capital Stock pursuant to the terms of any Parent Stock Instrument that is
incurred or issued (as applicable) in compliance with this Indenture.
The full amount of any Restricted Payment made pursuant to paragraphs
2(a)(i), (ii) and 2(b)(i), (iii) and (iv), but not pursuant to paragraph
2(b)(ii), however, will be counted as Restricted Payments made for purposes of
the calculation of the aggregate amount of Restricted Payments available to be
made referred to in Section 10.12(1)(C).
For purposes of this section, the amount of any Restricted Payment made or
returned, if other than in cash, shall be the fair market value thereof, as
determined in the good faith reasonable judgment of the Company's Supervisory
Board, unless stated otherwise, at the time made or returned, as applicable.
Addition ally, on the date of each Restricted Payment, the Company shall deliver
an Officers' Certificate to the respective Trustee describing in reasonable
detail the nature of such Restricted Payment, stating the amount of such
Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compliance with the terms of this Indenture.
SECTION 10.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries. (1) The Company may not, and may not permit any
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual restriction on the ability of any
Subsidiary:
(i) to pay dividends, in cash or otherwise, or make any other
distributions to or on behalf of or pay any obligation to or on behalf of
the Company or any Subsidiary of the Company;
(ii) to make or pay loans or advances to or on behalf of the Company
or any Subsidiary of the Company; or
(iii) to transfer property or assets to or on behalf of the Company or
any Subsidiary of the Company,
except:
(a) restrictions imposed by the Securities or the Discount Notes or
the Indenture or the Discount Notes Indenture or by other Indebtedness of
the Company ranking pari passu with the Securities and the Discount Notes,
provided that such restrictions are no more restrictive than those imposed
by the Indenture and the Securities;
(b) restrictions imposed by applicable law;
(c) restrictions under Indebtedness Outstanding on the Issue Date,
including pursuant to the Credit Agreement;
(d) restrictions under any Acquired Indebtedness not incurred in
violation of the Indenture or any agreement (including any Equity Interest)
relating to any property, asset, or business acquired by the Company or any
of its Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of
such acquisition, and are not applicable to any Person, other than the
Person acquired, or to any property, asset or business, other than the
property, assets and business so acquired;
(e) any such restriction or requirement imposed by Indebtedness
incurred under the Credit Agreement pursuant to Section 10.11, provided
that such restriction or requirement is no more restrictive than that
imposed by the Credit Agreement as of the Issue Date;
(f) with respect solely to a Subsidiary of the Company imposed
pursuant to a binding agreement which has been entered into for the sale or
disposition of all or substantially all of the Equity Interests or assets
of such Subsidiary, provided that such restrictions apply solely to the
Equity Interests or assets of such Subsidiary which are being sold;
(g) restrictions under Purchase Money Indebtedness not incurred in
violation of the Indenture, provided that such restrictions relate only to
the property financed with such Indebtedness;
(h) with respect to any Subsidiary, restrictions contained in the
terms of any Indebtedness incurred in compliance with the Indenture, or any
agreement pursuant to which such Indebtedness was issued, if (A) the
encumbrance or restriction applies only in the event of a payment default
or a default with respect to a financial covenant contained in such
Indebtedness or agreement, (B) the Company shall have reasonably determined
that the encumbrance or restriction is not materially more disadvantageous
to the Holders of the Securities than is customary in comparable
financings, and (C) the Company shall have reasonably determined that any
such encumbrance or restriction will not materially affect the Company's
ability to make principal or interest payments on the Securities; and
(i) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (a), (c), (d), or
(g), or this clause (i), of this paragraph that are not more restrictive
than those being replaced and do not apply to any other Person or assets
than those that would have been covered by the restrictions in the
Indebtedness so refinanced.
(2) Notwithstanding the provisions of Section 10.13(1), (a) customary
provisions restricting subletting, assignment or transfer of any lease, license,
conveyance, or similar document or instrument entered into in the ordinary
course of business, consistent with industry practice and (b) any asset or
property subject to a Lien which is not prohibited to exist with respect to such
asset pursuant to the terms of this Indenture may be subject to customary
restrictions on the transfer or disposition thereof pursuant to such Lien.
SECTION 10.14 Limitation on Liens Securing Indebtedness. The Company may
not, and may not permit any Subsidiary to, create, incur, assume or suffer to
exist any Lien of any kind, other than Permitted Liens, upon any of their
respective assets now owned or acquired on or after the date of this Indenture
or upon any income or profits therefrom securing any Indebtedness of the
Company, unless the Company provides, and causes its Subsidiaries to provide,
concurrently therewith, that the Securities are equally and ratably so secured;
provided that if such Indebtedness is Subordinated Indebtedness, the Lien
securing such Subordinated Indebtedness shall be subordinate and junior to the
Lien securing the Securities with the same relative priority as such
Subordinated Indebtedness shall have with respect to the Securities.
SECTION 10.15 Limitation on Issuances of Guarantees by Subsidiaries. (1)
Notwithstanding the other provisions of this Indenture, the Company may not
permit any Subsidiary to, directly or indirectly, Guarantee any Indebtedness of
the Company (other than Indebtedness incurred pursuant to the Credit Agreement
in accordance with the terms of this Indenture) ("Guaranteed Indebtedness"),
then such Subsidiary must become a Guarantor (a "Subsidiary Guarantor") of the
Securities on a basis such that the Subsidiary's Guarantee of the Securities
shall stand in substantially the same relative ranking in right of payment to
the guarantee of such other Indebtedness as the Securities stand in relative
ranking to such other Indebtedness; provided that this paragraph shall not be
applicable to any guarantee by any Subsidiary that (a) existed at the time such
Person became a Subsidiary of the Company and (b) was not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary of the Company.
(2) Subsidiary Guarantees shall be automatically released upon (i) the sale
or other disposition of all or substantially all of the Company's and its
Subsidiaries' beneficial interest in the Equity Interests or assets of such
Subsidiary Guarantor, provided that thereafter such Subsidiary Guarantor shall
cease to be a Subsidiary of the Company, (ii) the consolidation or merger of any
such Subsidiary Guarantor with any Person other than the Company or a Subsidiary
of the Company if, as a result of such consolidation or merger, such Subsidiary
Guarantor ceases to be a Subsidiary of the Company (and shall not be a
Subsidiary of the successor to the Company), (iii) a Legal Defeasance, or (iv)
the unconditional and complete release of such Subsidiary Guarantor from its
Guarantee of all Guaranteed Indebtedness.
SECTION 10.16 Limitation on Sale of Assets and Subsidiary Stock. (1) The
Company may not, and may not permit any Subsidiary to, in one or a series of
related transactions, convey, sell, transfer, assign or otherwise dispose of,
directly or indirectly, any of the Company's or such Subsidiary's property,
business or assets (including by merger or consolidation in the case of a
Subsidiary of the Company), and including any sale or other transfer or issuance
of any Equity Interests of any Subsidiary of the Company, whether by the Company
or a Subsidiary or through the issuance, sale or transfer of Equity Interests by
a Subsidiary of the Company, and including any sale and leaseback transaction
(any of the foregoing, an "Asset Sale"), unless:
(A) (1) the amount equal to the Net Cash Proceeds there from (the
"Asset Sale Offer Amount") is applied
(i) within 360 days (or 540 days in the case of a Special
Character Asset Sale) after the date of such Asset Sale to the
optional redemption of the Securities in accordance with the terms of
the Indenture and other Indebtedness of the Company ranking pari passu
in right of payment with the Securities and with similar provisions
requiring the Company to redeem such Indebtedness with the proceeds
from such Asset Sale, pro rata in proportion to the respective
principal amounts (or accreted values in the case of Securities and
other Indebtedness issued with original issue discount) of the
Securities and such other Indebtedness then Outstanding, or
(ii) within 360 days (or 540 days in the case of a Special
Character Asset Sale) after the date of such Asset Sale to the
repurchase of the Securities and such other Indebtedness ranking pro
rata in right of payment with the Securities and with similar
provisions requiring the Company to make an offer to purchase such
Indebtedness with the proceeds from such Asset Sale pursuant to a cash
offer (subject only to conditions required by applicable law, if any)
pro rata in proportion to the respective principal amounts (or
accreted values in the case of Securities and other Indebtedness
issued with original issue discount) of the Securities and such other
Indebtedness then Outstanding (the "Asset Sale Offer") at a purchase
price of 100% of principal amount (or accreted value in the case of
Indebtedness issued with original issue discount) (the "Asset Sale
Offer Price") together with accrued and unpaid interest and Liquidated
Damages, if any, to the date of payment, made within 360 days (or 540
days in the case of a Special Character Asset Sale) of such Asset
Sale, or
(iii) within 360 days (or 540 days in the case of a Special
Character Asset Sale), to the repayment of Indebtedness then Out
standing pursuant to the Credit Agreement or, if required by the terms
of such Indebtedness, of Indebtedness issued by a Subsidiary of the
Company (in respect of which Indebtedness the Company is not a direct
or contingent obligor except by virtue of the Company's pledge of
Equity Interests of, and other interests of or claim on, such
Subsidiary or the Company's guarantee of such Subsidiary's
Indebtedness to the extent, in either case, the recourse against the
Company is limited to such Equity Interests or claim), or
(2) within 360 days (or 540 days in the case of a Special Character
Asset Sale) following such Asset Sale, the Asset Sale Offer Amount is
invested in assets and property which in the good faith reasonable judgment
of the Company will immediately constitute or be a part of a Related
Business of the Company or such Subsidiary (if it continues to be a
Subsidiary) immediately following such transaction or is used to make
Permitted Investments in the Company or a Subsidiary of the Company (other
than Cash Equivalents or securities of the Company or any Person
controlling the Company except as permitted by the Indenture), provided
that (i) 50% of the Net Cash Proceeds from Special Character Asset Sales
and 100% of the net proceeds from any Asset Sale of an Investment made in
reliance on clause (g) of the definition of "Permitted Investments" may be
reinvested in any Permitted Investment (other than, in either case, Cash
Equivalents or securities of the Company or any Person controlling the
Company except as permitted by the Indenture) which in the good faith
reasonable judgment of the Company will immediately constitute or be a part
of a Related Business and (ii) 100% of the net proceeds from an Asset Sale
constituting the sale of an Investment in any Person (excluding a Person
that would be Consolidated with the Company under GAAP and excluding
Related Assets of the Company or any of its Subsidiaries) in which the
Company or any of its Subsidiaries has an Equity Interest may be reinvested
in Investments permitted by clause (e) or (f) of the definition of
"Permitted Investments,"
(B) at least 75% of the total consideration for such Asset Sale or
series of related Asset Sales consists of cash, Cash Equivalents,
Replacement Assets or the assumption of Indebtedness of a Subsidiary. For
purposes of this subparagraph (B), total consideration received means the
total consideration received for such Asset Sales, minus the amount of (a)
Purchase Money Indebtedness secured solely by the assets sold and assumed
by a transferee, provided that the Company and the Subsidiaries are
released from any obligation in connection therewith; and (b) property that
within 30 days of such Asset Sale is converted into cash or Cash
Equivalents, provided that such cash and Cash Equivalents shall be treated
as Net Cash Proceeds attributable to the original Asset Sale for which such
property was received.
(C) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect to, on a pro
forma basis, such Asset Sale, and
(D) in the case of a transaction or series of related transactions
exceeding $15,000,000 (or the foreign currency equivalent on the date of
the transaction) of consideration to any party thereto, the Supervisory
Board of the Company determines in its good faith reasonable judgment that
the Company or such Subsidiary, as applicable, receives fair market value
for such Asset Sale.
(2) An acquisition of Securities pursuant to an Asset Sale Offer may be
deferred until the accumulated Net Cash Proceeds from Asset Sales not applied to
the uses set forth in 1(a)(i), (iii), or 1(b) above (the "Excess Proceeds")
exceeds $50,000,000 (or the foreign currency equivalent thereof), provided that,
in the case of an Asset Sale by a Subsidiary of the Company that is not a Wholly
Owned Subsidiary, only the Company's and its Subsidiaries' pro rata portion of
such Net Cash Proceeds shall constitute Net Cash Proceeds subject to the
provisions of this Section 10.16. Each Asset Sale Offer shall remain open for 20
Business Days following its commencement (the "Asset Sale Offer Period"). Upon
expiration of the Asset Sale Offer Period, the Company shall apply the Asset
Sale Offer Amount, plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Indebtedness properly
tendered (on a pro rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together
with accrued interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Securities and such other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Company may apply any remaining Net Cash Proceeds to any purpose consistent with
this Indenture, and following the consummation of each Asset Sale Offer the
Excess Proceeds amount shall be reset to zero.
Notwithstanding, and without complying with, the foregoing provisions of
this Section 10.16:
(u) the Company and its Subsidiaries may, in the ordinary course of
business, (a) convey, sell, transfer, assign or otherwise dispose of
inventory and other assets acquired and held for resale in the ordinary
course of business and (b) liquidate and otherwise dispose of Cash
Equivalents;
(v) the Company and its Subsidiaries may convey, sell, transfer,
assign or otherwise dispose of property, businesses, or assets pursuant to
and in accordance with Article Eight.
(w) the Company and its Subsidiaries may sell or dispose of damaged,
worn out or other obsolete personal property in the ordinary course of
business so long as such property is no longer necessary for the proper
conduct of the business of the Company or such Subsidiary, as applicable,
and the Company and its Subsidiaries may replace personal property in the
ordinary course of business so long as the replacement property is
necessary for the proper conduct of the business of the Company or such
Subsidiary, as applicable, and sell or dispose of such replaced property in
the ordinary course;
(x) the Company and its Subsidiaries may convey, sell, transfer,
assign or otherwise dispose of property, businesses, or assets to the
Company or any of its Subsidiaries;
(y) the Company and each of its Subsidiaries may surrender or waive
contract rights or settle, release or surrender contract, tort or other
claims of any kind in the ordinary course of business or grant Liens not
otherwise prohibited by the Indenture;
(z) the Company and its Subsidiaries may ex change assets for
property, businesses, or assets held by any Person (including by merger or
consolidation in the case of a Subsidiary of the Company); provided that
(a) property, businesses and assets, which in one or a series of related
transactions exceeds $15,000,000 in value, received by the Company or such
Subsidiaries in any such exchange in the good faith reasonable judgment of
the Supervisory Board of the Company will immediately constitute, be a part
of, or be used in, a Related Business of the Company or such Subsidiaries,
(b) the Supervisory Board of the Company has determined that the terms of
any exchange, which in one or a series of related transactions exceeds
$15,000,000 in fair market value, are fair and reasonable, and (c) any cash
or Cash Equivalents received by the Company or any Subsidiary in such
exchange shall be treated as having been received as a result of an Asset
Sale.
All Net Cash Proceeds from an Event of Loss shall be used all within the
period and as otherwise provided above in clause (1) of the first paragraph of
this Section 10.16.
(3) Any Asset Sale Offer shall be made in compliance with all applicable
laws, rules, and regulations, including, if applicable, Regulation 14E of the
Exchange Act and the rules and regulations thereunder and all other applicable
Federal and state securities laws. To the extent that the provisions of any
applicable securities laws, rules, or regulations conflict with the provisions
of this section, compliance by the Company or any of its subsidiaries with such
laws, rules or regulations shall not in and of itself cause a breach of its
obligations under this section.
(4) If the payment date in connection with an Asset Sale Offer hereunder is
on or after an interest payment Record Date and on or before the associated
Interest Payment Date, any accrued and unpaid interest (and Liquidated Damages,
if any, due on such Interest Payment Date) will be paid to the Person in whose
name a Security is registered at the close of business on such Record Date, and
such interest (or Liquidated Damages, if applicable) will not be payable to
Holders who tender Securities pursuant to such Asset Sale Offer.
SECTION 10.17 Limitation on Transactions with Affiliates. The Company may
not, and may not permit any Subsidiary on or after the Issue Date to, enter into
any contract, agreement, arrangement or transaction with any Affiliate of the
Company (an "Affiliate Transaction"), or any series of related Affiliate
Transactions, other than Exempted Affiliate Transactions,
(1) unless it is determined by the Supervisory Board as evidenced by a
Board Resolution that the terms of such Affiliate Transaction are fair and
reasonable to the Company and no less favorable to the Company than could
have been obtained in an arm's length transaction with a non-Affiliate, and
(2) if involving consideration to either party in excess of
$15,000,000 (or its foreign currency equivalent), unless such Affiliate
Transaction(s) is evidenced by an Officers' Certificate addressed and
delivered to the Trustee certifying that such Affiliate Transaction (or
Affiliate Transactions) has been approved by a majority of the members of
the Supervisory Board of the Company that are disinterested in such
transaction, if there are any directors who are so disinterested, and
(3) if involving consideration to either party in excess of
$15,000,000 or $30,000,000 if there are disinterested directors (or in each
case its foreign currency equivalent), unless in addition the Company,
prior to the consummation thereof, obtains a written favorable opinion as
to the fairness of such transaction to the Company from a financial point
of view from an independent investment banking firm of national reputation
in the United States or, if pertaining to a matter for which such
investment banking firms do not customarily render such opinions, an
appraisal or valuation firm of national reputation in the United States.
SECTION 10.18 Additional Amounts. All payments made by the Company under or
with respect to the Securities will be made free and clear of and without
withholding or deduction for or on account of any present or future Taxes
imposed or levied by or on behalf of any Taxing Authority within The
Netherlands, or within any other jurisdiction in which the Company is organized
or engaged in business, or any other jurisdiction if payments on the Securities
are made from within such jurisdiction (each of the above, a "Relevant Taxing
Jurisdiction"), unless the Company is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof.
If the Company is required to withhold or deduct any amount for or on
account of Taxes (other than any estate, inheritance, gift, sales, excise,
transfer, wealth or personal property tax, or any similar non-income tax,
assessment or governmental charge) imposed by a Taxing Authority within a
Relevant Taxing Jurisdiction, from any payment made under or with respect to the
Securities, the Company will pay such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each Holder of Securities
(including Additional Amounts) after such withholding or deduction (including
any withholding or deduction in respect of such Additional Amounts) will not be
less than the amount the Holder would have received if such Taxes had not been
withheld or deducted; provided that no such Additional Amounts shall be payable
with respect to a payment made to a Holder with respect to any Tax or portion
thereof that would not have been imposed, payable or due:
(1) but for the existence of any present or former connection between
the Holder (or the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Securities) and The Netherlands or other
jurisdiction in which the Company is organized or engaged in business other
than the holding of the Securities;
(2) but for the failure of the Holder to use its reasonable best
efforts to comply upon written notice by the Company delivered 60 days
prior to any payment date with a request by the Company to satisfy any
certification, identification or other reporting requirements which shall
include any applicable forms or instructions whether imposed by statute,
treaty, regulation or administrative practice concerning the nationality or
residence of the Holder or the connection of the Holder with The
Netherlands or other jurisdiction in which the Company is organized or
engaged in business:
(i) provided that Holder's failure to comply with the 60 day
requirement described above shall not relieve the Company of the
Company's obligation to pay Additional Amounts if the Holder's
application for any requested certification, identification or other
reporting requirement remains Outstanding or is otherwise pending and
the Holder continues to use its reasonable best efforts to obtain such
information;
(ii) provided, further that the Company shall pay any Additional
Amounts not paid on any payment date as a result of the operation of
this clause (2) upon the satisfaction of the relevant certification,
identification or other reporting requirements within 30 days after
such payment date, provided that the Company shall not, as a result of
such satisfaction occurring after the payment date, have already
irrevocably paid to the relevant taxing authority the withheld or
deducted amount in respect of which such Additional Amounts would have
been payable;
(3) but for the failure of the Holder (or the beneficial individual
owner of, or individual ultimately entitled to obtain an interest in, such
Securities) who is an individual citizen or resident of a member state of
the European Union to comply with a written notice by the Company delivered
60 days prior to any payment date with a request by the Company to provide
any certification, identification or other reporting requirement, whether
imposed by statute, treaty, regulation or administrative practice, if such
action would otherwise eliminate the requirement for the withholding or
deduction of Taxes; or
(4) if the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Securities had been the Holder of the
Securities and would not be entitled to the payment of Additional Amounts
(excluding the impact of book entry procedures by the Depository or Common
Depository).
In addition, Additional Amounts will not be payable with respect to any Tax
which is payable and so paid otherwise than by withholding or deduction from
payments of, or in respect of principal of, or any interest or Liquidated Dam
ages on, the Securities. The Company will remit the full amount of any
withholdings or deductions for or on account of Taxes to the relevant Taxing
Authority in accordance with applicable law. The Company will make reasonable
efforts to obtain certified copies of tax receipts evidencing the payment of any
Taxes so deducted or withheld from each Taxing Authority imposing such Taxes.
The Company will furnish to the Holders, within 60 days after the date the
payment of any Taxes so deducted or withheld are due pursuant to applicable law,
either certified copies of tax receipts evidencing such payment by the Company
or, if such receipts are not obtainable, other evidence of such payments by the
Company. At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay Additional Amounts with respect to such payment, the Company will deliver
to the respective Trustee an Officers' Certificate stating (i) the fact that
such Additional Amounts will be payable, (ii) the amounts so payable and (iii)
such other information necessary to enable the Trustee to pay such Additional
Amounts to the Holders of Securities on the Interest Payment Date.
Wherever in this Indenture there is mentioned, in any context, the payment
of amounts based upon the principal amount at maturity of the Securities or of
principal, Accreted Value, premium, if any, interest or Liquidated Damages, if
any, or of any other amount payable under or with respect to any of the
Securities, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof.
SECTION 10.19 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law, which
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest, if any, on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 10.20 Limitation on Lines of Business. Neither the Company nor any
of its Subsidiaries shall directly or indirectly engage to any substantial
extent in any line or lines of business activity other than that which, in the
reasonable good faith judgment of the Supervisory Board, is a Related Business.
SECTION 10.21 Limitation on Status as an Investment Company. The Company
and its Subsidiaries shall not take any action or conduct their business and
operations in such a way as would cause them to be required to register as an
"investment company" (as that term is defined in the Investment Company Act of
1940, as amended), or would otherwise cause them to become subject to regulation
under the Investment Company Act.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption. (1) Optional Redemption of the
Securities. The Securities will be redeemable at the option of the Company, in
whole or in part, at any time or from time to time on or after August 1, 2004,
upon not less than 30 nor more than 60 days' prior notice, at the redemption
prices (ex pressed as a percentage of Accreted Value thereof) set forth below,
plus accrued and unpaid interest (and Liquidated Damages, if any,) thereon, if
any, to the date of redemption:
YEAR REDEMPTION PRICE
2004.......................... 106.250%
2005.......................... 104.167%
2006.......................... 102.083%
2007 and thereafter........... 100.000%
The Company will publish a redemption notice in accordance with the
procedures described under Section 1.6.
(2) Redemption Upon Equity Offering. Prior to August 1, 2002, upon an
Equity Offering of Common Stock for cash of the Company, up to 35% of the
aggregate principal amount of the Securities may be redeemed at the Company's
option within 90 days of such Equity Offering, on not less than 30 days, but not
more than 60 days', notice to each Holder of the Securities to be redeemed, with
cash in an amount not in excess of the Net Cash Proceeds of such Equity
Offering, at a redemption price equal to 112.500% of the Accreted Value thereof
together with accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date; provided, however, that immediately following
such redemption not less than 65% of the aggregate principal amount at maturity
of the Securities remain Outstanding and provided, further, that such redemption
shall occur within 90 days after the date of the closing of such Equity
Offering.
(3) Redemption For Changes In Withholding Taxes. The Company may, at its
option, redeem all, but not less than all, of the Securities then Outstanding,
in each case at 100% of the Accreted Value thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date, if a Tax Event
has occurred and is continuing. Notice of any such redemption must be given
within not less than 30 days nor more than 60 days prior to the redemption date.
No redemption pursuant to this paragraph (3) may be made unless, prior to the
publication of any notice of redemption as a result of a Tax Event, the Company
delivers to the Trustee (i) an Officer's Certificate stating that a Tax Event
has occurred (irrespective of whether the amendment or change is then
effective), describing the facts leading thereto and stating that the Company
cannot avoid the requirement to pay Additional Amounts by taking reasonable
measures available to it and (ii) an opinion of counsel reasonably acceptable to
the Trustee to the effect that the Company is or will become obligated to pay
Additional Amounts as a result of such change or amendment.
(4) Mandatory Redemption. The Company is not required to make mandatory
redemption payments or sinking fund payments with respect to the Securities.
SECTION 11.2 Applicability of Article. Redemption of Securities at the
election of the Company or otherwise, as permitted or required by any provision
of this Indenture, shall be made in accordance with such provision and this
Article Eleven.
SECTION 11.3 Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities pursuant to Section 11.1 shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company,
the Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount at maturity of
Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 11.4.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 30 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities not previously called for
redemption pro rata, by lot or by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount at maturity of Securities; provided, however, that no
such partial redemption shall reduce the portion of the principal amount at
maturity of a Security not re deemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount at maturity thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount at maturity of such Security which has been or is to be
redeemed.
SECTION 11.5 Notice of Redemption. Notice of redemption shall be given in
the manner provided for in Section 1.6 not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed.
Each notice of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 11.7, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amount at maturity) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, that on and
after the Redemption Date, upon surrender of such Security, the Holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount at maturity thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
11.7) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue and
that the Accreted Value of the Securities will cease to increase on and
after said date, and
(6) the place or places where such Securities are to be presented and
surrendered for payment of the Redemption Price and accrued interest, if
any.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 11.6 Deposit of Redemption Price. Prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 11.7 Securities Payable on Redemption Date. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified (together with accrued interest and Liquidated Damages, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal or Accreted Value (and premium, if any)
shall, until paid, accrete or bear interest from the Redemption Date at the rate
of accretion of or interest rate borne by the Securities.
SECTION 11.8 Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to Section 10.2 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount at maturity equal to and in exchange for the
unredeemed portion of the principal amount at maturity of the Security so
surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time prior to the
Stated Maturity of the Securities, with respect to the Securities, elect to have
either Section 12.2 or Section 12.3 be applied to all Outstanding Securities
upon compliance with the conditions set forth below in this Article Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Company's exercise under
Section 12.1 of the option applicable to this Section 12.2, the Company shall be
deemed to have been discharged from its obligations with respect to all
Outstanding Securities on the date the conditions set forth in Section 12.4 are
satisfied (hereinafter, "Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 12.5 and the
other Sections of this Indenture referred to in clauses (A) and (B) below, and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal or Accreted
Value of, premium, if any, and interest (and Liquidated Damages, if any) on such
Securities when such payments are due and any rights of the Holders with respect
to such amounts, (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 10.2 and 10.3; (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Twelve.
Subject to compliance with this Article Twelve, the Company may exercise its
option under this Section 12.2 notwithstanding the prior exercise of its option
under Section 12.3 with respect to the Securities.
SECTION 12.3 Covenant Defeasance. Upon the Company's exercise under Section
12.1 of the option applicable to this Section 12.3, the Company shall be
released from its obligations under any covenant contained in Section 8.1 and in
Sections 10.8 through 10.18 with respect to the Outstanding Securities
("Covenant Defeasance") on and after the date the conditions set forth below are
satisfied, and the Securities shall thereafter be deemed not to be "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, Covenant Defeasance means that, with respect to the
Outstanding Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
5.1(3), 5.1(4) and 5.1(5), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance. The following
shall be the conditions to application of either Section 12.2 or Section 12.3 to
the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another Trustee satisfying the requirements
of Section 6.8 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities: (A)
U.S. legal tender (with respect to the Securities), legal tender in the
countries constituting the European Monetary Union (with respect to the
Euro Denominated Securities), or (B) U.S. Government Obligations (with
respect to the Securities) or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying Trustee) to pay and discharge, the principal or Accreted Value
of (and premium, if any) and interest on the Outstanding Securities on the
Stated Maturity (or Redemption Date, if applicable) of such principal or
Accreted Value (and premium, if any) or installment of interest; provided
that the Holders of Securities must have a valid, perfected, exclusive
security interest in such trust.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (6) and
(7) of Section 5.1 are concerned, at any time during the period ending on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which it or any of its Subsidiaries is
bound.
(4) In the case of an election under Section 12.2, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee stating that (x) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture, there has been a change in the applicable U.S.
federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance had not occurred.
(5) In the case of an election under Section 12.3, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee to the effect that (i) the Holders of the Outstanding
Securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such Covenant Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of such Outstanding Securities over any
other of the Company's creditors or with the intent of defeating,
hindering, delaying or defrauding any other of the Company's creditors or
others; and
(7) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to
either the Defeasance under Section 12.2 or the Covenant Defeasance under
Section 12.3 (as the case may be) have been complied with; and, in the case
of the opinion of counsel, that paragraphs (1) (with respect to the
validity and perfection of the security interest), (2), (3) and (5) of this
Section 12.4 have been complied with, and the Company shall have delivered
to the Trustee an Officers' Certificate, subject to such qualifications and
exceptions as the Trustee deems appropriate, to the effect that, assuming
no Holder of the Securities is an insider of the Company, the trust funds
will not be subject to the effect of any applicable Federal bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally.
SECTION 12.5 Deposited Money and U.S. Government Securities to Be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 10.3, all money and U.S. Government Obligations (including
the proceeds thereof) deposited with the Trustee (or other qualifying Trustee,
collectively for purposes of this Section 12.5, the "Trustee") pursuant to
Section 12.4 in respect of the Outstanding Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal or Accreted Value, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee and (if applicable) its
officers, directors, employees and agents against any tax, fee or other charge
imposed on or assessed against the U.S. Government Securities deposited pursuant
to Section 12.4 or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 12.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance, as applicable, in accordance with this Article Twelve.
SECTION 12.6 Reinstatement. If the Trustee or any Paying Agent is unable to
apply any money in accordance with Section 12.5 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.2 or 12.3, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 12.5; provided, however, that if the Company makes any
payment of principal or Accreted Value of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Anton H.E. van Voskuijlen
------------------------------------
Name: Anton H.E. van Voskuijlen
Title:
Citibank, N.A. (London Branch), Trustee
By: /s/ Leigh Cobb
------------------------------------
Name: Leigh Cobb
Title:
<PAGE>
EXHIBIT A
[FORM OF SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN
THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR CEDELBANK (EACH,
A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE OF A
DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER NOMINEE OF
A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY (AND ANY PAYMENT IS
MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF A DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, A NOMINEE OF A DEPOSITARY, HAS AN INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY (OR ITS
PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES. ACT. BY ITS
ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")) (A "QIB"), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH AS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS
THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S") OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES (C), (D)
AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART OF ITS
INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, SITUATED IN
OR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THE
CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS, BROKERS, DEALERS,
INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITUTIONAL INVESTORS AND OTHER
PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL ENTERPRISE AND FINANCE
COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN SECURITIES.
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") UNDER SECTION
1272 ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE ISSUE
DATE OF THIS SECURITY IS JULY 30, 1999. THE ISSUE PRICE OF THIS SECURITY IS
$545.21 PER $1,000 STATED PRINCIPAL AMOUNT DUE AT MATURITY. THE YIELD TO
MATURITY OF THIS SECURITY IS 12 1/2% PER ANNUM COMPUTED ON A SEMI- ANNUAL BOND
EQUIVALENT BASIS AND CALCULATED FROM JULY 30, 1999. THE AMOUNT OF OID ON THIS
SECURITY IS $454.79.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$735,000,000
12 1/2% Senior Discount Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ] $ [ ]
United Pan-Europe Communications N.V., a company with limited liability
organized and existing under the laws of The Netherlands (the "Company", which
term includes any successor corporation), for value received, hereby promises to
pay to the registered holder, Cede & Co., as nominee of The Depository Trust
Company or registered assigns, the principal sum of [ ] DOLLARS, which amount
includes amortization of original issue discount, on August 1, 2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed
manually or by facsimile by its duly authorized officer.
Dated: July 30, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:
----------------------------------
Authorized Signatory
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: July 30, 1999
This is one of the Securities referred to in the within-mentioned
Indenture.
CITIBANK N.A.
as Trustee
By:
--------------------------------
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$735,000,000
12 1/2 % SENIOR DISCOUNT NOTE DUE 2009
1. Method of Payment. The initial Accreted Value will increase at the rate
of 12 1/2% per annum, compounded semi-annually, on the Securities. Payment of
the principal of, or premium, if any, on the Securities or such lesser amount
payable upon the acceleration of the maturity of the Securities will include
accrued amortization of original issue discount. Interest payable in cash will
commence to accrue on February 1, 2004, and will be payable on each February 1
and August 1. Interest will be paid upon overdue principal and premium, and
interest, if any, compounded semi-annually from the due date at the rate borne
by the Securities to the extent such payment is lawful.
The Holder must surrender this Security to a Paying Agent to collect
payments. The principal of, Accreted Value, interest and premium, if any, on the
Securities will be payable at the office or agency of the Company maintained for
such purpose within the City and State of New York or, at the option of the
Company, payment may be made by check mailed to the Holders of the Securities at
their respective addresses set forth in the register of Holders of Securities.
Until otherwise designated by the Company, the Company's office or agency in New
York will be the office of the Trustee maintained for such purpose. All payments
shall be in coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
2. Paying Agent and Registrar. Initially, Citibank N.A. (the "Trustee")
will act as Paying Agent and Registrar and Banque Internationale a Luxembourg
will act as Paying Agent in Luxembourg. The Company may change any Paying Agent
or Registrar without notice. The Company or any of its Subsidiaries may, subject
to certain exceptions, act as Registrar.
3. Indenture. The Company issued $735,000,000 12 1/2% Senior Discount Notes
due 2009 (the "Securities") under an Indenture dated as of July 30, 1999 (the
"Indenture") between the Company and the Trustee. This is one of an issue of
Securities of the Company issued, or to be issued, under the Indenture. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code ss.ss. 77aaa-77bbbb), as amended from time to time. The Securities are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of them. Capitalized and certain other terms used herein and
not otherwise defined have the meanings set forth in the Indenture. To the
extent of any conflict between the terms of the Securities and the Indenture,
the applicable terms of the Indenture shall govern.
4. Additional Amounts. The Company will pay to the Holders of Securities
such Additional Amounts as may become payable under Section 10.18 of the
Indenture.
5. Optional Redemption of the Securities. The Securities will be redeemable
at the option of the Company, in whole or in part, at any time or from time to
time on or after August 1, 2004, upon not less than 30 nor more than 60 days'
prior notice to each Holder of Securities, at the Redemption Prices (expressed
as a percentage of Accreted Value thereof) if redeemed during the 12- month
period beginning on August 1 of the years indicated below, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the Redemption Date:
REDEMPTION
YEAR PRICE
2004................................ 106.250%
2005................................ 104.167%
2006................................ 102.083%
2007 and thereafter................. 100.000%
6. Redemption Upon Equity Offering. Prior to August 1, 2002, upon an Equity
Offering of Common Stock for cash of the Company, up to 35% of the aggregate
principal amount at maturity of the Securities may be redeemed at the Company's
option within 90 days of such Equity Offering, on not less than 30 days', but
not more than 60 days', notice to each Holder of the Securities to be redeemed,
with cash in an amount not in excess of the Net Cash Proceeds of such Equity
Offering, at a redemption price equal to 112.500% of the Accreted Value thereof
together with accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date; provided, however, that immediately following
such redemption not less than 65% of the aggregate principal amount at maturity
of the Securities remain Outstanding and provided, further, that such redemption
shall occur within 90 days after the date of the closing of such Equity
Offering.
7. Redemption for Changes in Withholding Taxes. The Company may, at its
option, redeem all, but not less than all, of the Securities then Outstanding,
at 100% of the Accreted Value of the Securities redeemed, plus accrued and
unpaid interest and Liquidated Damages, if any, thereon to the Redemption Date,
if a Tax Event has occurred and is continuing.
8. Mandatory Redemption. The Company is not required to make mandatory
redemption payments or sinking fund payments with respect to the Securities.
9. Notice of Redemption. Notice of redemption will be mailed within not
less than 30 days nor more than 60 days prior to the Redemption Date to each
Holder of Securities to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue, and, if applicable, the Accreted Value will cease to
increase, on Securities or portions thereof called for redemption.
10. Purchase of Securities upon Change of Control. The Indenture provides
that upon the occurrence of a Change of Control and subject to further
limitations contained therein, the Company shall make an offer to purchase
Outstanding Securities in accordance with the procedures set forth in the
Indenture.
11. Registration Rights. Pursuant to a Registration Rights Agreement, dated
July 30, 1999, among the Company and the Initial Purchasers named therein, the
Company will be obligated to consummate an Exchange Offer pursuant to which the
Holder of this Security shall have the right to exchange this Security for notes
of a separate series issued under the Indenture which have been registered under
the Securities Act, in like principal amount at maturity and having
substantially identical terms as the Securities. The Holders shall be entitled
to receive certain payments in the event such Exchange Offer is not consummated
("Liquidated Damages") and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
12. Denominations, Transfer, Exchange. The Securities are in registered
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay to it any taxes and
fees required by law or permitted by the Indenture. Under certain circumstances
set forth in the Indenture, the Registrar need not register the transfer of or
exchange any Securities.
13. Persons Deemed Owners. The registered Holder of this Security may be
treated as the owner of this Security for all purposes.
14. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its written request. After that, all liability of
the Trustee and any such Paying Agent with respect to such money shall cease.
15. Amendment, Supplement, Waiver, Etc. The Company and the Trustee may,
without the consent of the Holders of any Outstanding Securities, amend, waive
or supplement the Indenture or the Securities for certain specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies.
Other amendments and modifications of the Indenture or the Securities may be
made by the Company and the Trustee with the consent of the Holders of not less
than a majority of the aggregate principal amount at maturity of the Outstanding
Securities and with other holders of notes of other series issued under the
Indenture, subject to certain exceptions requiring the consent of the Holders of
the particular Securities to be affected.
16. Restrictive Covenants. The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make Restricted Payments, make certain Investments,
create or incur Liens, enter into transactions with Affiliates, enter into
agreements restricting the ability of Subsidiaries to pay dividends and make
distributions and on the ability of the Company to merge or consolidate with any
other person or transfer all or substantially all of the Company's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to the Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
17. Defaults and Remedies. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the Company) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount at maturity of the Outstanding
Securities under the Indenture may, by written notice to the Trustee and the
Company, and the Trustee upon the request of the Holders of not less than 25% in
aggregate principal amount at maturity of the Outstanding Securities shall,
declare all principal of and accrued interest on all Securities to be
immediately due and payable and such amounts shall become immediately due and
payable.
18. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
19. No Recourse Against Others. No board member, director, officer,
employee, agent, authorized representative, incorporator or shareholder of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture for a claim based on, in respect of, or by reason
of, such obligations or their creation by reason of his, her or its status as
such. Each Holder of Securities by accepting a Security waivers and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Securities.
20. Discharge. The Company's obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain provisions thereof,
subject to the terms of the Indenture, upon the payment of all the Securities or
upon the irrevocable deposit with the Trustee of U.S. Dollars or U.S. Government
Securities denominated in U.S. Dollars sufficient to pay when due principal of
and interest on the Securities to maturity or redemption.
21. Authentication. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT LIMITATION
SECTION 5-1401 AND 5- 1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE COMPANY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to the Indenture or
the Securities.
23. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM = tenants in common), TEN ENT = tenants
by the entireties), JT TEN = joint tenants with right of survivorship and not as
tenants in common), CUST = Custodian), and U/G/M/A = Uniform Gifts to Minors
Act).
24. Currency of Account. U.S. Dollars are the sole currency of account and
payment for all sums payable by the Company under the Securities.
25. CUSIP, ISIN and Common Code Numbers. The Company has caused CUSIP, ISIN
and Common Code numbers, as applicable, to be printed on the Securities and the
Trustee may use CUSIP, ISIN or Common Code numbers, as applicable, in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed hereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attn: Treasurer
<PAGE>
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below
and have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint of
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
( ) (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
( ) (b) this Security is being transferred other than in accordance with (a)
above and documents, including a transferee certificate substantially in
the form attached hereto, are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b) above,
if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: Your signature:
(Sign exactly as your name appears on the other
side of this Security)
By:
--------------------------------------------
NOTICE: To be executed by an executive officer
Signature Guaranteed:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program acceptable to the Trustee)
<PAGE>
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated: NOTICE: To be executed by an executive officer
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
<TABLE>
<CAPTION>
Principal
Amount of Amount of Amount
decrease in increase in at maturity
Principal Principal of this
Amount Amount Global Secu-
at maturity at maturity rity Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ------------------- -------------------- ------------------ --------------------- ------------------
<S> <C> <C> <C> <C>
Initial balance $ [ ]
as of 07/30/99
</TABLE>
<PAGE>
EXHIBIT B
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Sections 3.13(b)(ii)
and 3.13(c)(ii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
RE: UNITED PAN-EUROPE COMMUNICATIONS N.V. 12 1/2% SENIOR DISCOunt NOTES
DUE 2009 (THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, (the "INDENTURE"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "SECURITIES ACT") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$]______ principal amount at maturity of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
[CUSIP][CINS][ISIN] No(s). ________________________________
CERTIFICATE No(s). _________________________
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
1. the Owner is not a distributor of the Specified Securities, an
Affiliate of the Company or any such distributor or a person acting on
behalf of any of the foregoing;
2. the offer of the Specified Securities was not made to a person in
the United States;
3 either:
(a) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its
behalf reasonably believed that the Transferee was outside the United
States; or
(b) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on its behalf knows
that the transactions have been prearranged with a buyer in the United
States;
4. no directed selling efforts have been made in the United States by
or on behalf of the Owner or any Affiliate thereof;
5. if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period, then
the requirements of Rule 904(c)(1) have been satisfied;
6. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
7. upon completion of the transaction, the beneficial interest being
transferred will be held through an Agent Member acting for and on behalf
of Euroclear or Cedelbank.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate.)
By:
---------------------------------------------------------
Name:
Title:
(If the Undersigned is a Corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
<PAGE>
EXHIBIT C
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY
(Transfers Pursuant to Sections 3.13(b)(iii)
and 3.13(c)(iii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
RE: UNITED PAN-EUROPE COMMUNICATIONS N.V. 12 1/2% SENIOR NOTES due 2009
(THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, ( the "INDENTURE"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "SECURITIES ACT") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$] principal amount at maturity
of Securities, which are evidenced by the following certificate(s) (the
"SPECIFIED SECURITIES"):
[CUSIP][CINS][ISIN] No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Specified
Securities, an Affiliate of the Company or any such distributor
or a person acting on behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Owner and
any person acting on its behalf reasonably believed that the
Transferee was outside the United States; or
(ii) the transaction is being executed in, on or
through the facilities of the Eurobond market, as regulated
by the Association of International Bond Dealers, or another
designated offshore securities market and neither the Owner
nor any person acting on its behalf knows that the
transactions has been prearranged with a buyer in the United
States;
(D) no directed selling efforts have been made in the United
States by or on behalf of the Owner or any Affiliate thereof;
(E) if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the
Specified Securities, and the transfer is to occur during the
Restricted Period, then the requirements of Rule 904(c)(1) have been
satisfied; and
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after [date one year after the
latest date of issuance of any of the Specified Securities] and is
being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after [date two years after the
latest date of issuance of any of the Specified Securities] and the
Owner is not, and during the preceding three months has not been, an
Affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate.)
By:
-------------------------
Name:
Title:
(If the Undersigned is a Corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE --
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers to QIBs Pursuant to Sections 3.13(b)(iv)
and 3.13(c)(iv) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
RE: UNITED PAN-EUROPE COMMUNICATIONS N.V 12 1/2% SENIOR NOTES due 2009
(THE "SECURITIES")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A. as trustee, (the "Indenture"). Terms used
but not defined herein and defined in Regulation S under the U.S. Securities Act
of 1933 (the "SECURITIES ACT") or in the Indenture shall have the meanings given
to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$] principal amount at maturity of
Securities, which are evidenced by the following certificate(s) (the "SPECIFIED
SECURITIES"):
[CUSIP][CINS][ISIN] No(s).
CERTIFICATE No(s).
The person in whose name this certificate is executed below (the
"UNDERSIGNED") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "OWNER".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "TRANSFEREE") who will take delivery in the form of an interest in
the Restricted Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
144A under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(2) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term is defined
in the second paragraph of this certificate.)
By:
-------------------------
Name:
Title:
(If the Undersigned is a Corporation, partnership or
fiduciary, the title of the person signing on behalf of the
Undersigned must be stated.)
<PAGE>
EXHIBIT E
UNITED PAN-EUROPE
COMMUNICATIONS N.V.
OFFICERS' CERTIFICATE
[Name], [title(s)] of United Pan-Europe Communications N.V. a public
limited liability company organized and existing under the laws of The
Netherlands (the "Company"), and [name], [title(s)] of the Company, hereby
certify pursuant to Sections ____ and ____ of the Indenture, dated as of
___________, ____ (the "Indenture"), between the Company and Citibank, N.A., as
trustee (the "Trustee"), that:
(i) he or she has read and understands the provisions of the Indenture
and the definitions relating thereto, (ii) the statements made in this
Officers' Certificate are based upon an examination of the provisions of
the Indenture and upon the relevant books and records of the Company, (iii)
in his or her opinion, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed opinion as to
whether or not the covenants and conditions of the Indenture relating to
the [authentication of the Securities] [execution of the Indenture] [OTHER]
have been complied with and (iv) in his or her opinion, such covenants and
conditions have been complied with.
IN WITNESS WHEREOF, each of the undersigned has executed this Certificate
on this ____ day of ____________, ____.
By:
--------------------------------
Name:
Titles:
By:
--------------------------------
Name:
Titles:
<PAGE>
EXHIBIT F
[Date]
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Ladies and Gentlemen:
We have acted as special counsel to United Pan-Europe Communications N.V.,
a company with limited liability organized and existing under the laws of The
Netherlands (the "Company"), in connection with the [initial issuance and sale
by the Company of $735,000,000 aggregate principal amount at maturity of the
Company's 12 1/2% Senior Discount Notes due 2009 (the "Securities"), which will
be issued under an Indenture, dated as of July 30, 1999 (the "Indenture"),
between the Company and Citibank, N.A. as trustee (the "Trustee")].
This opinion is being furnished to your pursuant to Sections ____ and ____
of the Indenture.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such letter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to any
facts material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements or
representations of officers and other representatives of the Company and others.
Pursuant to Sections ____ and ____ of the Indenture, we advise you that in
our opinion:
1. We have reviewed Article __ of the Indenture setting forth certain
provisions of general application, and in particular, the pertinent provisions
of Section ___ of the Indenture setting forth the definitions of certain terms,
and Sections ___ and ___ of the Indenture providing that the Trustee is entitled
to receive an Officers' Certificate and an Opinion of Counsel in connection with
any request by the Company to take any action and setting forth certain
requirements with respect to the forms of such documents. We have also reviewed
Article ___ of the Indenture, pertaining to ____.
2. In our opinion, we have made such examination or investigation
(including an examination of the Officers' Certificate of the Company, dated as
of the date hereof, as to the matters addressed in Sections ___ and ___ of the
Indenture) as we deem necessary to enable us to express an informed opinion as
to whether or not the conditions precedent to [the authentication of the
Securities] [the execution of the Indenture] [OTHER] under Section ___ of the
Indenture have been complied with.
3. In our opinion, the conditions precedent to be satisfied with respect to
the [authentication of the Securities] [execution of the Indenture] [OTHER]
under Section __ of the Indenture have been complied with.
Members of our firm are admitted to the bar in the States of ______ and New
York, and we do not express any opinion as to the laws of any jurisdiction other
than the laws of such States and the General Corporation Law of the State of
Delaware and the laws of the United States of America.
This opinion is furnished to you solely for your benefit in connection with
the [authentication of the Securities] [execution of the Indenture] [OTHER] and
is not to be relied upon by any other person without our express written
permission.
Very truly yours,
<PAGE>
EXHIBIT G
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
(Transfers Pursuant to Section 3.14(a) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: UNITED PAN-EUROPE COMMUNICATIONS N.V. 12 1/2% SENIOR DISCOunt NOTES
DUE 2009 (THE "SECURITIES")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A. as trustee (the "INDENTURE"). Terms used
but not defined herein have the meanings given to them in the Indenture.
This certificate relates to [U.S. $]____ principal amount at maturity of
Securities, which are evidenced by the following certificate(s) (the
"SECURITIES"):
1. We understand that the Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not be sold
except as permitted in the following sentence. We understand and agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, (x) that such Securities are being offered only in a transaction not
involving any public offering within two years after the date of the original
issuance of the Securities or if within three months after we cease to be an
affiliate (within the meaning of Rule 144 under the Securities Act) of the
Company, such Securities may be resold, pledged or transferred only (i) to the
Company, (ii) so long as the Securities are eligible for resale pursuant to Rule
144A under the Securities Act ("Rule 144A"), to a person whom we reasonably
believe is a "qualified institution buyer" (as defined in Rule 144A) ("QIB")
that purchases for its own account or for the account of a QIB to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule 144A
(as indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the certificate for the Securities), (iii) in an
offshore transaction in accordance with Regulation S under the Securities Act
(as indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the Note if the Note is not in book-entry form), and,
if such transfer is being effected by certain transferors prior to the
expiration of the "40-day distribution compliance period" (within the meaning of
Rule 903(b)(2) of Regulation S under the Securities Act), a certificate that may
be obtained from the Trustee is delivered by the transferee, (iv) to an
institution that is an "accredited investor" as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the certificate for
the Securities) which has certified to the Company and the Trustee for the
Securities that it is such an accredited investor and is acquiring the
Securities for investment purposes and not for distribution (provided that no
Securities purchased from a foreign purchaser or from any person other than a
QIB or an institutional accredited investor pursuant to this clause (iii) shall
be permitted to transfer any Securities so purchased to an institutional
accredited investor pursuant to this clause (iv) prior to the expiration of the
"applicable restricted period" (within the meaning of Regulation S under the
Securities Act), (v) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities Act, or
(vi) pursuant to an effective registration statement under the Securities Act,
in each case in accordance with any applicable securities laws of any state of
the United States, and we will notify any purchaser of the Securities from us of
the above resale restriction, if then applicable. We further understand that in
connection with any transfer of the Securities by us that the Company and the
Trustee for the Securities may request, and if so requested we will furnish,
such certificates, legal opinions and other information as they may reasonably
require to confirm that any such transfer complies with the foregoing
restrictions.
2. We are able to fend for ourselves in the transactions contemplated by
this Offering Circular, we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Securities, and we and any accounts for which we are acting
are each able to bear the economic risk of our or its investment and can afford
the complete loss of such investment.
3. We understand that the Company, Goldman Sachs International, Donaldson,
Lufkin & Jenrette Securities International, Morgan Stanley & Co. International
Limited, TD Securities (USA) Inc., Bank of America International Limited, Chase
Manhattan International Limited, CIBC World Markets Corp., Credit Suisse First
Boston (Europe) Limited, Merrill Lynch International and Salomon Brothers
International Limited as the initial purchasers of the Securities ("Initial
Purchasers"), and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements and we agree that if any of the
acknowledgments, representations and warranties deemed to have been made by us
by our purchase of Securities, for our own account or of one or more accounts as
to each of which we exercise sole investment discretion, are no longer accurate,
we shall promptly notify the Company and the Initial Purchasers.
4. We are acquiring the Securities purchased by us for investment purposes
and not for distribution of our own account or for one or more accounts as to
each of which we exercise sole investment discretion and we are or such account
is an institutional "accredited investor" (as defined in rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act).
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
--------------------------------------------
Date:
<PAGE>
EXHIBIT H
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 of the Indenture, check the box:
( ) Section 10.10
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.10 of the Indenture, state the amount:
[$ (multiple of$1000)]
[(E) (multiple of (E) 1000)]
Dated:
Your Signature:
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(Sign exactly as your name appears on the other side of this
Security)
Signature Guaranteed:
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Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable to
the Trustee)
