Exhibit 4.3
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VERSATEL TELECOM INTERNATIONAL N.V.
as Issuer,
AND
THE BANK OF NEW YORK
as Trustee, Registrar and
Paying Agent
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INDENTURE
Dated as of March 30, 2000
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Euro 400,000,000 11 1/4% Senior Notes due 2010
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................................1
SECTION 1.1 Definitions..................................................1
SECTION 1.2 Incorporation by Reference of TIA...........................22
SECTION 1.3 Rules of Construction.......................................22
ARTICLE II
THE NOTES.................................................................23
SECTION 2.1 Form and Dating.............................................23
SECTION 2.2 Execution and Authentication................................24
SECTION 2.3 Registrar and Paying Agent..................................26
SECTION 2.4 Paying Agent To Hold Assets in Trust........................26
SECTION 2.5 List of Holders.............................................26
SECTION 2.6 Book-Entry Provisions for Global Notes......................27
SECTION 2.7 Registration of Transfer and Exchange.......................28
SECTION 2.8 Replacement Notes...........................................33
SECTION 2.9 Outstanding Notes...........................................33
SECTION 2.10 Treasury Notes..............................................34
SECTION 2.11 Temporary Notes.............................................34
SECTION 2.12 Cancellation................................................35
SECTION 2.13 Defaulted Interest..........................................35
SECTION 2.14 CUSIP, ISIN and Common Code Numbers.........................35
SECTION 2.15 Deposit of Moneys...........................................36
SECTION 2.16 Certain Matters Relating to Global Notes....................36
ARTICLE III
REDEMPTION................................................................36
SECTION 3.1 Optional Redemption.........................................36
SECTION 3.2 Notices to Trustee..........................................36
SECTION 3.3 Selection of Notes To Be Redeemed...........................37
SECTION 3.4 Notice of Redemption........................................37
SECTION 3.5 Effect of Notice of Redemption..............................38
SECTION 3.6 Deposit of Redemption Price.................................38
SECTION 3.7 Notes Redeemed in Part......................................39
ARTICLE IV
COVENANTS.................................................................39
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SECTION 4.1 Payment of Notes............................................39
SECTION 4.2 Maintenance of Office or Agency.............................40
SECTION 4.3 Limitation on Restricted Payments...........................40
SECTION 4.4 Limitation on Indebtedness..................................42
SECTION 4.5 Corporate Existence.........................................45
SECTION 4.6 Payment of Taxes and Other Claims...........................46
SECTION 4.7 Maintenance of Properties and Insurance.....................46
SECTION 4.8 Compliance Certificate; Notice of Default...................46
SECTION 4.9 Compliance with Laws........................................47
SECTION 4.10 Provision of Financial Statements and Reports...............47
SECTION 4.11 Waiver of Stay; Extension or Usury Laws.....................48
SECTION 4.12 Limitation on Transactions with Shareholders and Affiliates.49
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries...........................50
SECTION 4.14 Limitation on Liens.........................................52
SECTION 4.15 Repurchase of Notes upon a Change of Control................52
SECTION 4.16 Limitation on Asset Sales...................................53
SECTION 4.17 Limitation on Issuance of Guarantees of Indebtedness
by Restricted Subsidiaries..................................55
SECTION 4.18 [Intentionally Omitted].....................................55
SECTION 4.19 Limitation on the Issuance and Sale of Capital Stock
of Restricted Subsidiaries..................................55
SECTION 4.20 Additional Amounts..........................................56
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges.............56
ARTICLE V
Successor Company.........................................................57
SECTION 5.1 Consolidation, Merger, and Sale of Assets...................57
SECTION 5.2 Successor Company Substituted...............................57
ARTICLE VI
DEFAULT AND REMEDIES......................................................58
SECTION 6.1 Events of Default...........................................58
SECTION 6.2 Acceleration................................................59
SECTION 6.3 Other Remedies..............................................60
SECTION 6.4 The Trustee May Enforce Claims Without Possession of
Securities..................................................60
SECTION 6.5 Rights and Remedies Cumulative..............................60
SECTION 6.6 Delay or Omission Not Waiver................................60
SECTION 6.7 Waiver of Past Defaults.....................................60
SECTION 6.8 Control by Majority.........................................61
SECTION 6.9 Limitation on Suits.........................................61
SECTION 6.10 Rights of Holders To Receive Payment........................62
SECTION 6.11 Collection Suit by Trustee..................................62
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SECTION 6.12 Trustee May File Proofs of Claim............................62
SECTION 6.13 Priorities..................................................63
SECTION 6.14 Restoration of Rights and Remedies. ........................63
SECTION 6.15 Undertaking for Costs.......................................63
SECTION 6.16 Compliance Certificate; Notices of Default..................64
ARTICLE VII
TRUSTEE...................................................................64
SECTION 7.1 Duties of Trustee...........................................64
SECTION 7.2 Rights of Trustee...........................................65
SECTION 7.3 Individual Rights of Trustee................................67
SECTION 7.4 Trustee's Disclaimer........................................67
SECTION 7.5 Notice of Default...........................................67
SECTION 7.6 Report by Trustee to Holders................................67
SECTION 7.7 Compensation and Indemnity..................................68
SECTION 7.8 Replacement of Trustee......................................69
SECTION 7.9 Successor Trustee by Merger, Etc............................70
SECTION 7.10 Corporate Trustee Required; Eligibility.....................70
SECTION 7.11 Disqualification; Conflicting Interests.....................70
SECTION 7.12 Preferential Collection of Claims Against Company...........70
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE...................................71
SECTION 8.1 Option To Effect Legal Defeasance or Covenant Defeasance....71
SECTION 8.2 Legal Defeasance and Discharge..............................71
SECTION 8.3 Covenant Defeasance.........................................71
SECTION 8.4 Conditions to Legal or Covenant Defeasance..................72
SECTION 8.5 Satisfaction and Discharge of Indenture.....................74
SECTION 8.6 Survival of Certain Obligations.............................74
SECTION 8.7 Acknowledgement of Discharge by Trustee.....................74
SECTION 8.8 Application of Trust Moneys.................................75
SECTION 8.9 Repayment to the Company; Unclaimed Money...................75
SECTION 8.10 Reinstatement...............................................76
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS.......................................76
SECTION 9.1 Without Consent of Holders of Notes.........................76
SECTION 9.2 With Consent of Holders of Notes............................77
SECTION 9.3 Compliance with TIA.........................................78
SECTION 9.4 Revocation and Effect of Consents...........................78
SECTION 9.5 Notation on or Exchange of Notes............................78
SECTION 9.6 Trustee To Sign Amendments, Etc.............................79
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ARTICLE X
[INTENTIONALLY OMITTED]...................................................79
ARTICLE XI
MISCELLANEOUS.............................................................79
SECTION 11.1 TIA Controls................................................79
SECTION 11.2 Notices.....................................................79
SECTION 11.3 Communications by Holders with Other Holders................81
SECTION 11.4 Certificate and Opinion as to Conditions Precedent..........81
SECTION 11.5 Statements Required in Certificate or Opinion...............81
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar...................82
SECTION 11.7 Legal Holidays..............................................82
SECTION 11.8 Governing Law...............................................82
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent for Service;
Waiver......................................................82
SECTION 11.10 No Adverse Interpretation of Other Agreements...............83
SECTION 11.11 No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators...............................83
SECTION 11.12 Currency Indemnity. ........................................83
SECTION 11.13 Successors. ...............................................84
SECTION 11.14 Counterpart Originals.......................................84
SECTION 11.15 Severability................................................84
SECTION 11.16 Table of Contents, Headings, etc............................84
EXHIBITS
Exhibit A - Form of Initial Global Note
Exhibit B - Form of Initial Definitive Note
Exhibit C - Form of Exchange Global Note
Exhibit D - Form of Exchange Definitive Note
Exhibit E - Form of Transfer Certificate for Transfer from Rule 144A
Global Note to Regulation S Global Note
Exhibit F - Form of Transfer Certificate for Transfer from Regulation S
Global Note to Rule 144A Global Note
NOTE: This Table of Contents shall not, for any purpose, be deemed to be
part of this Indenture.
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- ---------
310(a)(1).................................................... 7.10
(a)(2)................................................. 7.10
(a)(3)................................................. NA
(a)(4)................................................. NA
(a)(5)................................................. 7.8; 7.11
(b).................................................... 7.8; 7.11
(c).................................................... NA
311(a)....................................................... 7.12
(b).................................................... 7.12
(c).................................................... NA
312(a)....................................................... 2.5
(b).................................................... 11.3
(c).................................................... 11.3
313(a)....................................................... 7.6
(b)(1)................................................. 11.3
(b)(2)................................................. 7.6
(c).................................................... 7.6; 11.2
(d).................................................... 7.6
314(a)....................................................... 4.8; 4.10; 11.2;
11.4
(b).................................................... 11.2
(c)(1)................................................. 7.2; 11.4
(c)(2)................................................. 7.2; 11.4
(c)(3)................................................. NA
(d).................................................... 11.3;11.4; 11.5
(e).................................................... 11.5
(f).................................................... NA
315(a)....................................................... 7.1(c)
(b).................................................... 7.5; 11.2
(c).................................................... 7.1(a)
(d).................................................... 6.8; 7.1(c)
(e).................................................... 6.15
316(a)(last sentence)........................................ 2.9
(a)(1)(A).............................................. 6.8
(a)(1)(B).............................................. 6.7
(a)(2)................................................. NA
(b).................................................... 6.10
317(a)(1).................................................... 6.11
(a)(2)................................................. 6.12
(b).................................................... 2.4
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318(a)....................................................... 11.1
(c).................................................... 11.1
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NA means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
INDENTURE, dated as of March 30, 2000, between VERSATEL TELECOM
INTERNATIONAL N.V., a company organized under the laws of The Netherlands and
having its corporate seat in Amsterdam, The Netherlands (the "Company"), and The
Bank of New York, a New York banking corporation, as Trustee, Registrar and
Paying Agent.
The Company has duly authorized the creation and issuance of (i) its 11
1/4% Senior Notes due 2010 issued on the date hereof (the "Original Notes"),
(ii) Additional Notes (as defined herein) that may be issued on any Issue Date
(all such notes referred to in (i) and (ii) being referred to as the "Initial
Notes") and (iii) 11 1/4% Senior Notes due 2010 to be issued in exchange for the
Original Notes pursuant to the Registration Rights Agreement or in exchange for
the Additional Notes pursuant to any similar registration rights agreement (the
"Exchange Notes" and, together with the Initial Notes, the "Notes"); and, to
provide therefor, the Company has duly authorized the execution and delivery of
this Indenture. Except as otherwise provided herein, the Notes shall be limited
to Euro 400,000,000 in aggregate principal amount outstanding, of which Euro
300,000,000 in aggregate principal amount shall be initially issued on the date
hereof. Subject to the conditions and compliance with the covenants set forth
herein, the Company may issue up to Euro 100,000,000 aggregate principal amount
of Additional Notes.
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. For purposes of this Indenture, unless
otherwise specifically indicated herein, the term "consolidated" with respect to
any Person refers to such Person consolidated with its Restricted Subsidiaries,
and excludes from such consolidation any Unrestricted Subsidiary as if such
Unrestricted Subsidiary were not an Affiliate of such Person. In addition, for
purposes of the following definitions and this Indenture generally, all
calculations and determinations shall be made in accordance with U.S. GAAP and
shall be based upon the consolidated financial statements of the Company and its
subsidiaries prepared in accordance with U.S. GAAP. As used in this Indenture,
the following terms shall have the following meanings:
"Acquired Indebtedness" means Indebtedness of a Person existing at the
time such Person becomes a Restricted Subsidiary or is merged or consolidated
with or into the Company or any Restricted Subsidiary or assumed in connection
with an Asset Acquisition by the Company or a Restricted Subsidiary and not
Incurred in connection with, or in anticipation of, such Person becoming a
Restricted Subsidiary, such merger or consolidation or such Asset Acquisition;
provided that Indebtedness of such Person which is redeemed, defeased, retired
or otherwise repaid at the time of or immediately upon the consummation of the
transactions by which such Person becomes a Restricted Subsidiary or is merged
or consolidated with or into the Company or any Restricted Subsidiary or such
Asset Acquisition shall not be Indebtedness.
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"Additional Amounts" shall have the meaning set forth in Section 4.20.
"Additional Notes" means up to Euro 100,000,000 aggregate principal
amount of 11 1/4% Senior Notes due 2010 issued under the terms of this Indenture
after the Closing Date.
"AEX" means the Official Market of Amsterdam Exchanges N.V.'s stock
market.
"Affiliate" means, as applied to any Person, any other Person directly
or indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, Authenticating Agent or
co-Registrar.
"Agent Members" shall have the meaning set forth in Section 2.16.
"Asset Acquisition" means (i) any capital contribution (by means of
transfers of cash or other property to others or payments for property or
services for the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase of
Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated, merged with or into the Company
or any Restricted Subsidiary or (ii) an acquisition by the Company or any of its
Restricted Subsidiaries of the property and assets of any Person (other than the
Company or any of its Restricted Subsidiaries) that constitute substantially all
of an operating unit or line of business of such Person or which is otherwise
outside the ordinary course of business.
"Asset Sale" means any sale, transfer or other disposition (including
by way of merger, consolidation or sale-leaseback transactions) in one
transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person (other than the Company or any of its
Restricted Subsidiaries) of (i) all or any of the Equity Interests in any
Subsidiary, (other than a sale, transfer or other disposition of shares in an
Unrestricted Subsidiary by such Unrestricted Subsidiary), (ii) all or
substantially all of the property and assets of an operating unit or line of
business of the Company or any of its Restricted Subsidiaries or (iii) any other
property and assets of the Company or any of its Restricted Subsidiaries outside
the ordinary course of business (including the receipt of proceeds paid on
account of the loss of or damage to any property or asset and awards of
compensation for any asset taken by condemnation, eminent domain or similar
proceedings). For the purposes of this definition, the term "Asset Sale" shall
not include (a) any transaction consummated in compliance with Section 5.1 and
the creation of any
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3
Lien not prohibited by Section 4.14; provided, however, that any transaction
consummated in compliance with such Section 5.1, involving a sale, conveyance,
assignment, transfer, lease or other disposal of less than all of the properties
or assets of the Company and the Restricted Subsidiaries shall be deemed to be
an Asset Sale with respect to the properties or assets of the Company and
Restricted Subsidiaries that are not so sold, conveyed, assigned, transferred,
leased or otherwise disposed of in such transaction; (b) sales of property or
equipment that has become worn out, obsolete or damaged or otherwise unsuitable
for use in connection with the business of the Company or any Restricted
Subsidiary, as the case may be; and (c) any transaction consummated in
compliance with Section 4.3. In addition, solely for purposes of Section 4.16,
any sale, conveyance, transfer, lease or other disposition of any property or
asset, whether in one transaction or a series of related transactions, involving
assets with a Fair Market Value not in excess of Euro 2.5 million in any fiscal
year shall be deemed not to be an "Asset Sale."
"Asset Sale Offer" shall have the meaning set forth in Section 4.16.
"Authenticating Agent" shall have the meaning set forth in Section 2.2.
"Bankruptcy Law" means (i) for purposes of the Company, the
Faillissementswet and any similar statute, regulation or provision of any other
jurisdiction in which the Company is organized or conducting business and (ii)
for purposes of the Trustee, Title 11, U.S. Code or any similar United States
Federal, state or foreign law for the relief of creditors.
"Board of Directors" means the Supervisory Board of The Company.
"Board Resolution" means a duly authorized resolution of the Board of
Directors.
"Book-Entry Interests" shall have the meaning set forth in Section
2.6(b).
"Business Day" means a day other than a Saturday, Sunday or other day
on which commercial banking institutions are authorized or required by law to
close in New York City or Amsterdam.
"Capital Stock" means with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, including, without limitation,
if such Person is a partnership, partnership interests (whether general or
limited) and any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, such partnership.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with U.S.
GAAP, is required to be capitalized and reflected as a liability on the balance
sheet of such Person; and "Capitalized
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4
Lease Obligation" means, at the time any determination thereof is to be made,
the discounted present value of the rental obligations under such lease.
"Cash Equivalents" means (a) securities issued or directly and fully
guaranteed or insured by the U.S. government or any agency or instrumentality
thereof having maturities of not more than 360 days from the date of
acquisition; (b) certificates of deposit and Euro time deposits with maturities
of 360 days or less from the date of acquisition, bankers' acceptances with
maturities not exceeding 360 days and overnight bank deposits, in each case with
any commercial bank having capital and surplus in excess of U.S.$500 million;
(c) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (a) and (b) entered into
with any financial institution meeting the qualifications specified in clause
(b) above; (d) commercial paper rated P-1, A-1 or the equivalent thereof by
Moody's Investors Service, Inc. or Standard & Poor's Ratings Group,
respectively, and in each case maturing within six months after the date of
acquisition; (e) marketable direct obligations of the United Kingdom, The
Netherlands, Belgium, Germany or France or obligations fully and unconditionally
guaranteed by such sovereign nation (or any agency thereof), of the type and
maturity described in clauses (a) through (d) above of foreign obligors, which
have ratings described in such clauses or equivalent ratings from comparable
foreign rating agencies; and (f) investments in money market funds which invest
substantially all their assets in securities of the types described in clauses
(a) through (e) above.
"Change of Control" means such time as (i) a "person" or "group"
(within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act) (other
than a Permitted Holder) becomes the ultimate "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of
the then outstanding Voting Stock of the Company on a fully diluted basis; (ii)
individuals who at the beginning of any period of two consecutive calendar years
constituted the Board of Directors (together with any directors who are members
of the Board of Directors on the date hereof and any new directors whose
election by the Board of Directors or whose nomination for election by the
Company's stockholders was approved by a vote of at least a majority of the
members of the Board of Directors then still in office who either were members
of the Board of Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of such Board of Directors then in office;
(iii) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Company to any such "person" or
"group" (other than to a Restricted Subsidiary); or (iv) the merger or
consolidation of the Company with or into another corporation or the merger of
another corporation with or into the Company with the effect that immediately
after such transaction any such "person" or "group" of persons or entities shall
have become the beneficial owner of securities of the surviving corporation of
such merger or consolidation representing a majority of the total voting power
of the then outstanding Voting Stock of the surviving corporation.
"Change of Control Offer" shall have the meaning set forth in Section
4.15.
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"Change of Control Payment" shall have the meaning set forth in Section
4.15.
"Change of Control Payment Date" shall have the meaning set forth in
Section 4.15.
"Clearing Agency" means one or more of DTC; Euroclear; Clearstream; or
the successor of any of them, in each case acting directly, or through a
custodian, nominee or common depositary, as registered Holder of a Global Note.
"Clearstream" means Clearstream Banking, societe anonyme.
"Closing Date" means the date of this Indenture.
"Common Depositary" means The Bank of New York until a successor Common
Depositary, if any, shall have become such pursuant to this Indenture, and
thereafter Common Depositary shall mean or include each person who is then a
Common Depositary hereunder.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, or, if at any time after the
execution of the Indenture such commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Order" means a written order or request signed in the name of
the Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company or any other officer so authorized
and delivered to the Trustee.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the (i) Consolidated Net Income of such Person for such period plus, to
the extent deducted in computing such Consolidated Net Income (and without
duplication) Consolidated Fixed Charges, (ii) any provision for taxes (other
than taxes (either positive or negative) attributable to extraordinary and non
recurring gains or losses or sales of assets), (iii) any amount attributable to
depreciation and amortization expense and (iv) all other non-cash items reducing
Consolidated Net Income (excluding any non-cash charge to the extent that it
requires or represents an accrual of, or reserve for, cash charges in any future
period), less all non-cash items increasing Consolidated Net Income (excluding
any items which represent the reversal of an accrual of, or reserve for,
anticipated cash charges at any prior period), all as determined on a
consolidated basis for such Person and its Restricted Subsidiaries in accordance
with U.S. GAAP; provided, however, that there shall be excluded therefrom the
Consolidated Cash Flow (if positive) of any Restricted Subsidiary (calculated
separately for such Restricted Subsidiary in the same manner as provided
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6
above) that is subject to a restriction which prevents the payment of dividends
or the making of distributions to the Company or another Restricted Subsidiary
to the extent of such restriction.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, Consolidated Interest Expense plus dividends declared and payable on
Preferred Stock.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the aggregate amount of interest in respect of Indebtedness
(including capitalized interest, amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation)
calculated in accordance with U.S. GAAP; all commissions, discounts and other
fees and charges owed with respect to letters of credit and bankers' acceptance
financing; the net costs associated with Interest Rate Agreements; and interest
on Indebtedness that is Guaranteed or secured by such Person or any of its
Restricted Subsidiaries), less the principal component of rentals in respect of
Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be
accrued by such Person and its Restricted Subsidiaries during such period;
excluding, however, any amount of such interest of any Restricted Subsidiary to
the extent the net income of such Restricted Subsidiary is excluded in the
calculation of Consolidated Net Income pursuant to the last proviso of such
definition.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period determined on a consolidated basis and in
conformity with U.S. GAAP; provided that the following items shall be excluded
in computing Consolidated Net Income (without duplication): (i) the net income
(or loss) of any Restricted Subsidiary accrued prior to the date it becomes a
Restricted Subsidiary or is merged into or consolidated with such Person or any
of its Restricted Subsidiaries or all or substantially all of the property and
assets of such Restricted Subsidiary are acquired by such Person or any of its
Restricted Subsidiaries; (ii) any gains or losses (on an after-tax basis) but
not losses attributable to Asset Sales; (iii) all extraordinary gains and gains
from Currency Agreements or Interest Rate Agreements and gains from the
extinguishment of debt; (iv) the net income (or loss) of any other Person (other
than net income (or loss) attributable to a Restricted Subsidiary) in which such
other Person (other than such Person or any of its Restricted Subsidiaries) has
a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to such Person or any of its Restricted Subsidiaries
by such other Person during such period; (v) net gains attributable to write-ups
of assets or write-downs of liabilities (determined after taking into account
losses attributable to write-downs of assets or write-ups of liabilities up to
but not in excess of such gains); and (vi) the cumulative effect of a change in
accounting principles after the Issue Date; and provided, further, that there
shall be further excluded therefrom the net income (but not the net loss) of any
Restricted Subsidiary (calculated separately for such Restricted Subsidiary in
the same manner as provided above) that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary to the extent of such restriction.
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"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of such Person and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of
determination), less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of Equity Interests in the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with U.S. GAAP (excluding the effects of
foreign currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52).
"Continuing Director" means, as of any date of determination, any
member of the Board of Directors who (i) was a member of such Board of Directors
on the Issue Date or (ii) was nominated for election or elected to such Board of
Directors with, or whose election to such Board of Directors was approved by,
the affirmative vote of a majority of the Continuing Directors who were members
of such Board of Directors at the time of such nomination or election or (iii)
is any designee of any Permitted Holder or was nominated by any Permitted
Holder.
"Corporate Trust Office" means the address of the Trustee specified in
Section 11.2.
"Covenant Defeasance" shall have the meaning set forth in Section 8.3.
"Credit Facilities" means one or more senior credit agreements, senior
loan agreements or similar senior facilities with banks or other institutional
lenders providing for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to special purpose
entities formed to borrow from such lenders against such receivables) or letters
of credit, in each case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to time.
"Cumulative Consolidated Cash Flow" means, for the period beginning on
the Issue Date through and including the end of the last fiscal quarter (taken
as one accounting period) preceding the date of any proposed Restricted Payment,
Consolidated Cash Flow of the Company and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with U.S. GAAP.
"Cumulative Consolidated Fixed Charges" means, for the period beginning
on the Issue Date through and including the end of the last fiscal quarter
(taken as one accounting period) preceding the date of any proposed Restricted
Payment, Consolidated Fixed Charges of the Company and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with U.S. GAAP.
<PAGE>
8
"Currency Agreement" means any foreign exchange contract, currency swap
agreement and any other arrangement or agreement designed to provide protection
against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Default Interest Payment Date" shall have the meaning set forth in
Section 2.13.
"Definitive Notes" means Notes in definitive registered form
substantially in the form of Exhibits B and D.
"DTC" means The Depository Trust Company or its successors.
"DTC Rule 144A Global Note" shall have the meaning set forth in Section
2.1.
"Eligible Accounts Receivable" means the accounts receivables (net of
any reserves and allowances for doubtful accounts in accordance with U.S. GAAP)
of any Person and its Restricted Subsidiaries (determined on a consolidated
basis) that are not more than 60 days past their due date and that were entered
into in the ordinary course of business on normal payment terms as shown on the
most recent consolidated balance sheet of such Person filed with the Commission,
all in accordance with U.S. GAAP.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock) prior to the time such
debt security is converted into, or exchanged for, Capital Stock).
"Equity Offering" means a primary offering of Ordinary Shares of the
Company with aggregate gross proceeds of at least Euro 50.0 million.
"Euroclear Operator" means Morgan Guaranty Trust Company of New York
(Brussels office), as operator of the Euroclear System.
"European 144A Global Note" shall have the meaning set forth in Section
2.1.
"Event of Default" shall have the meaning set forth in Section 6.1.
"Excess Proceeds" shall have the meaning set forth in Section 4.16.
<PAGE>
9
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes" have the meaning provided in the preamble to this
Indenture.
"Exchange Offer" shall have the meaning set forth in the Registration
Rights Agreement.
"Fair Market Value" means, with respect to any asset or property, the
price (after taking into account any liabilities relating to such assets) which
could be negotiated in an arm's-length free market transaction, for cash,
between a willing seller and a willing and able buyer, neither of which is under
any compulsion to complete the transaction; provided, however, that the Fair
Market Value of any such asset or assets shall be determined conclusively by the
Board of Directors acting in good faith, which determination shall be evidenced
by a resolution of such Board delivered to the Trustee.
"First High Yield Offering" means the issuance and sale by the Company
on May 27, 1998 of $225,000,000 in aggregate principal amount of 13 1/4% Senior
Notes due 2008 and warrants to purchase 3,000,000 (as adjusted) ordinary shares.
"Global Note" shall have the meaning set forth in Section 2.1.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States, the United Kingdom, Belgium, France, Germany,
The Netherlands or Switzerland, for the payment of which obligations or
guarantee the full faith and credit of the United States, the United Kingdom,
Belgium, France, Germany, The Netherlands or Switzerland, as the case may be, is
pledged, which are not callable or redeemable at the option of the issuer
thereof and which are payable in euros.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof) of any other Person; provided that
the term "Guarantee" shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Holder" means a Person in whose name a Note is registered on the
Registrar's books.
"Incur" means, with respect to any Indebtedness, to Incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an Incurrence of Indebtedness by reason of the
acquisition of more than 50% of the Equity Interests in any
<PAGE>
10
Person; provided that neither the accrual of interest nor the accretion of
original issuance discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" means, with respect to any Person at any date of
determination (without duplication), (i) all indebtedness of such Person,
whether or not contingent (A) in respect of borrowed money, excluding accrued
current liabilities arising in the ordinary course of business, (B) evidenced by
bonds, debentures, notes or other similar instruments or letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto), (C) representing the balance deferred and unpaid of the purchase price
of property or services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables, (D)
representing Capitalized Lease Obligations, (ii) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset at
such date of determination and (B) the amount of such Indebtedness, (iii) all
Indebtedness of other Persons Guaranteed by such Person to the extent such
Indebtedness is Guaranteed by such Person, (iv) the maximum fixed redemption or
repurchase price of Redeemable Stock of such Person at the time of determination
and (v) to the extent not otherwise included in this definition, obligations
under Currency Agreements and Interest Rate Agreements. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and, with respect to
contingent obligations, the maximum liability upon the occurrence of the
contingency giving rise to the obligation; provided (x) that the amount
outstanding at any time of any Indebtedness issued with original issue discount
is the face amount of such Indebtedness less the remaining unamortized portion
of the original issue discount of such Indebtedness at such time as determined
in conformity with U.S. GAAP and (y) that Indebtedness shall not include any
liability for federal, state, local or other taxes.
"Indebtedness to Consolidated Cash Flow Ratio" shall have the meaning
set forth in Section 4.4.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time in accordance with the terms hereof.
"Initial Global Notes" means the Regulation S Global Note and the Rule
144A Global Notes.
"Initial Notes" shall have the meaning set forth in the preamble to
this Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes.
<PAGE>
11
"Interest Rate Agreements" means any interest rate swap agreement,
interest rate cap agreement, interest rate insurance, and any other arrangement
or agreement designed to provide protection against fluctuations in interest
rates.
"Investment" in any Person means, any direct or indirect advance, loan
or other extension of credit (including, without limitation, by way of Guarantee
or similar arrangement; but excluding advances to customers in the ordinary
course of business that are, in conformity with U.S. GAAP, recorded as accounts
receivable on the balance sheet of such Person or its Restricted Subsidiaries)
or capital contribution to (by means of any transfer of cash or other tangible
or intangible property to others or any payment for any property or services for
the account or use of others), or any purchase or acquisition of Equity
Interests, bonds, notes, debentures, or other similar instruments issued by, any
other Person. For purposes of the definition of "Unrestricted Subsidiary" and
Sections 4.3 and 4.19, (i) "Investment" shall include (a) the Fair Market Value
of the assets (net of liabilities) of any Restricted Subsidiary of the Company
at the time that such Restricted Subsidiary of the Company is designated an
Unrestricted Subsidiary and shall exclude the Fair Market Value of the assets
(net of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary of the Company and
(b) the Fair Market Value, in the case of a sale of Equity Interests in
accordance with Section 4.19 such that a Person no longer constitutes a
Restricted Subsidiary, of the remaining assets (net of liabilities) of such
Person after such sale, and shall exclude the fair market value of the assets
(net of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary of the Company and
(ii) any property transferred to or from an Unrestricted Subsidiary shall be
valued at its Fair Market Value at the time of such transfer.
"Issue Date" means the date on which the Notes are originally issued
under this Indenture.
"Legal Defeasance" shall have the meaning set forth in Section 8.2.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of Amsterdam, The Netherlands or The City of New York
or a place of payment are authorized or required by law, regulation or executive
order to remain closed. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
"Lien" means, any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind in respect of an asset, whether or not filed,
recorded or otherwise perfected under applicable law (including, without
limitation, any conditional sale or other title retention agreement or lease in
the nature thereof, any sale with recourse against the seller or any Affiliate
of the seller, or any option or other agreement to sell or give any security
interest).
<PAGE>
12
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
"Maturity Date" means March 30, 2010.
"Most Recent Balance Sheet" means, with respect to any Person, the most
recent consolidated balance sheet of such Person reported on by an
internationally recognized firm of independent accountants without qualification
as to scope.
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or Cash Equivalents, including
payments in respect of deferred payment obligations (to the extend corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or Cash Equivalents (except to the extent such obligations are financed
or sold with recourse to the Company or any Restricted Subsidiary of the
Company) and proceeds from the conversion of other property received when
converted to cash or Cash Equivalents, net of (i) brokerage commissions and
other fees and expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale, (ii) taxes paid or payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing agreements), (iii) payments made to repay Indebtedness or any
other obligation outstanding at the time of such Asset Sale that either (A) is
secured by a Lien on the property or assets sold or (B) is required to be paid
as a result of such sale and (iv) appropriate amounts to be provided by the
Company or any Restricted Subsidiary of the Company as a reserve against any
liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale, all as determined in conformity with U.S. GAAP;
provided that such amounts which cease to be held as reserves shall be deemed
Net Cash Proceeds; and (b) with respect to any capital contribution or any
issuance or sale of Equity Interests (other than Redeemable Stock), the proceeds
of such capital contribution, issuance or sale in the form of cash or Cash
Equivalents, including payments in respect of deferred payment obligations (to
the extent corresponding to the principal, but not interest, component thereof)
when received in the form of cash or Cash Equivalents (except to the extent (1)
such obligations are financed, directly or indirectly, with money borrowed from
the Company or any Restricted Subsidiary or otherwise financed or sold with
recourse to the Company or any Restricted Subsidiary or (2) the capital
contribution or purchase of the Equity Interests is otherwise financed, directly
or indirectly, by the Company or any Restricted Subsidiary, including through
funds contributed, extended, guaranteed or otherwise advanced by the Company or
any Affiliate) and proceeds from the conversion of other property received when
converted to cash or Cash Equivalents, net of attorney's fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees Incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
<PAGE>
13
"Non-U.S. Person" means a person who is not a U.S. Person, as defined
in Regulation S.
"Notes" shall have the meaning set forth in the preamble of this
Indenture.
"Offer Amount" shall have the meaning set forth in Section 4.16.
"Offering" means the offering of the Notes described in the Offering
Memorandum.
"Offering Memorandum" means the Company's Offering Memorandum, dated
March 24, 2000, relating to the Notes.
"Offer Period" shall have the meaning set forth in Section 4.16.
"Officer" means, with respect to any Person (other than any Agent), the
Chairman of the Board, any Director, the Chief Executive Officer, the President,
any Vice President, the Chief Financial Officer, the Treasurer, the Assistant
Treasurer, the Controller or the Secretary of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company that meets the requirements set
forth in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion from legal counsel which
and who are reasonably acceptable to, and addressed to, the Trustee complying
with the requirements of Sections 11.4 and 11.5. Unless otherwise required by
the TIA, the legal counsel may be an employee of or counsel to the Company.
"Ordinary Shares" means the ordinary shares, par value NLG 0.05 per
share, of the Company.
"Original Notes" shall have the meaning set forth in the preamble of
this Indenture.
"Paying Agent" shall have the meaning set forth in Section 2.3.
"Permitted Business" means the business of (i) transmitting, or
providing services relating to the transmission of, voice, video or data, (ii)
constructing, creating, developing or marketing communications related network
equipment, software and other devices for use in a telecommunications business
or (iii) evaluating, participating or pursuing any other activity or opportunity
that is primarily related to those identified in clause (i) or (ii) above
(including, without limitation, with respect to Internet services).
<PAGE>
14
"Permitted Holder" means, collectively, Telecom Founders B.V., NeSBIC
Venture Fund C.V., Cromwilld Limited, Paribas Deelnemingen N.V., NPM Capital
N.V. and any Affiliate of the foregoing Persons.
"Permitted Investment" means (i) an Investment in (a) the form of loans
or advances to the Company or (b) a Restricted Subsidiary or a Person which
will, upon the making of such Investment, become a Restricted Subsidiary or be
merged or consolidated with or into or transfer or convey all or substantially
all its assets to, the Company or a Restricted Subsidiary; (ii) payroll, travel
and similar advances to cover matters that are expected at the time of such
advance ultimately to be treated as expenses in accordance with U.S. GAAP; (iii)
stock, obligations or securities received in satisfaction of judgments in
connection with any bankruptcy proceeding or otherwise; (iv) loans and advances
to officers or employees of the Company or a Restricted Subsidiary that do not
in the aggregate exceed Euro 5.0 million at any one time outstanding; (v)
Interest Rate Agreements and Currency Agreements designed solely to protect the
Company or its Restricted Subsidiaries against fluctuations in interest rates or
foreign currency exchange rates; (vi) Investments in any Person (the primary
business of which is related, ancillary or complementary to the business of the
Company on the date of such Investment) at any one time outstanding (measured on
the date each such Investment was made without giving effect to subsequent
changes in value) in an aggregate amount not to exceed 10.0% of the Company's
total consolidated assets as of the end of the most recently completed fiscal
quarter; (vii) Investments in Cash Equivalents; (viii) Investments made as a
result of the receipt of noncash consideration from any Asset Sale made in
compliance with Section 4.16; and (ix) Investments made in (a) the ordinary
course of the telecommunications business in the Permitted Business and on
ordinary business terms in the Permitted Business in consortia formed to
construct transmission infrastructure for use primarily in the Permitted
Business, provided such Investment entitles the Company to rights of way or
rights of use on such transmission infrastructure, (b) the ordinary course of
the telecommunications business and on ordinary business terms as partial
payment for constructing a network relating principally to the Permitted
Business or (c) in any Person (other than an Unrestricted Subsidiary) primarily
engaged in the wireless communications business so long as (1) the Board of
Directors determines on the date of the Investment that such Investment will
promote or significantly benefit the Company's or its Restricted Subsidiaries'
businesses and (2) the Company maintains the ability to participate in the
management of such Person either by virtue of representation on such Person's
board of directors or by contractual arrangement with such Person or the holders
of its Capital Stock.
"Permitted Liens" means (i) Liens for taxes, assessments, governmental
charges or claims that are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a reserve
or other appropriate provision, if any, as shall be required in conformity with
U.S. GAAP shall have been made; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other
<PAGE>
15
appropriate provision, if any, as shall be required in conformity with U.S. GAAP
shall have been made; (iii) Liens Incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted Subsidiaries; (v)
Liens (including extensions and renewals thereof) upon real or personal property
purchased or leased after the Issue Date; provided that (a) such Lien is created
solely for the purpose of securing Indebtedness Incurred in compliance with
Section 4.4 (1) to finance the cost of the item of property or assets subject
thereto and such Lien is created prior to, at the time of or within six months
after the later of the acquisition and the Incurrence of such Indebtedness or
(2) to refinance any Indebtedness previously so secured, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100% of such
cost and (c) any such Lien shall not extend to or cover any property or assets
other than such item of property or assets; (vi) any interest or title of a
lessor in the property subject to any Capitalized Lease or operating lease of a
Restricted Subsidiary which, in each case, is permitted under the Indenture;
(vii) Liens on property of, or on Equity Interests in or Indebtedness of, any
Person existing at the time such Person becomes, or becomes a part of, any
Restricted Subsidiary; provided that such Liens were not created, Incurred or
assumed in contemplation of such transaction and do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other than the
property or assets so acquired; (viii) Liens arising from the rendering of a
final judgment or order against the Company or any Restricted Subsidiary of the
Company that does not give rise to an Event of Default; (ix) Liens encumbering
customary initial deposits and margin deposits and other Liens that are either
within the general parameters customary in the industry or Incurred in the
ordinary course of business, in each case, securing Indebtedness under Interest
Rate Agreements and Currency Agreements; (x) Liens arising out of conditional
sale, title retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Restricted Subsidiaries in the
ordinary course of business in accordance with the past practices of the Company
and its Restricted Subsidiaries prior to the Issue Date; (xi) Liens existing on
the Issue Date or securing the Notes or any Guarantee of the Notes; (xii) Liens
granted after the Issue Date on any assets or Equity Interests in the Company or
its Restricted Subsidiaries created in favor of the Holders; (xiii) Liens
created in connection with the Incurrence of any Indebtedness permitted to be
Incurred under Section 4.4 (b)(iv); provided that the Indebtedness which it
refinances is secured by similar Liens; (xiv) Liens securing Indebtedness under
Credit Facilities Incurred in compliance with Section 4.4 (b)(i); (xv) Liens on
the property or assets of a Restricted Subsidiary securing Indebtedness of such
Subsidiary which Indebtedness is permitted under the Indenture; and (xvi) any
Liens arising in respect of any escrow or similar account established in
connection with the issuance of any notes (including Additional Notes) which are
pari passu with the Notes and arising under any escrow or similar agreement
executed in connection with the issuance of any such notes.
<PAGE>
16
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
"Placement Agents" means Lehman Brothers International (Europe), Morgan
Stanley & Co. International Limited and ING Bank N.V.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) which is preferred as to the payment of dividends
or distributions, or as to the distribution of assets upon any voluntary or
involuntary liquidation or dissolution of such Person, over Equity Interests of
any other class in such Person.
"Private Placement Legend" means the legend set forth in Section
2.7(g).
"Pro Forma Consolidated Cash Flow" means, with respect to any Person
for any period, the Consolidated Cash Flow of such Person for such period
calculated on a pro forma basis to give effect to any Asset Sale or Asset
Acquisition (including acquisitions of other Persons by merger, consolidation or
purchase of Equity Interests) during such period as if such Asset Sale or Asset
Acquisition had taken place on the first day of such period and income (or
losses) ceased to accrue or accrued, as the case may be, therefrom from such
date.
"Proportionate Share" means, as of any date of calculation, an amount
equal to (i) the outstanding principal amount of Notes as of such date, divided
by (ii) the sum of the outstanding principal amount of Notes as of such date
plus the outstanding principal amount as of such date of all other Indebtedness
(other than subordinated Indebtedness) of the Company the terms of which
obligate the Company to make a purchase offer in connection with the relevant
Excess Proceeds or the Asset Sale giving rise thereto.
"Purchase Date" shall have the meaning set forth in Section 4.16.
"Qualified Consideration" means (1) cash, (2) Cash Equivalents, (3)
Replacement Assets, (4) any securities or other obligations that are converted
into or exchanged for cash or Cash Equivalents within 60 days after an Asset
Sale or (5) any Indebtedness which ranks equal in right of payment to the Notes
or any Indebtedness of a Restricted Subsidiary assumed by the transferee or its
designee, such that the Company or the Restricted Subsidiary has no further
liability therefor, the amount of the liability to be determined in accordance
with U.S. GAAP.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Notes.
<PAGE>
17
"Redeemable Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness or Redeemable Stock or
(iii) is redeemable or must be purchased, upon the occurrence of certain events
or otherwise, by such Person at the option of the holder thereof, in whole or in
part, in each case on or prior to the first anniversary of the Stated Maturity
of the Notes; provided, however, that any Capital Stock that would not
constitute Redeemable Stock but for provisions thereof giving holders thereof
the right to require such Person to purchase or redeem such Capital Stock upon
the occurrence of an "asset sale" or "change of control" occurring prior to the
first anniversary of the Stated Maturity of the Notes shall not constitute
Redeemable Stock if (x) the "asset sale" or "change of control" provisions
applicable to such Capital Stock are not more favorable to the holders of such
Capital Stock than the terms applicable to the Notes and described under Section
4.15 and Section 4.16 and (y) any such requirement only becomes operative after
compliance with such terms applicable to the Notes including the purchase of any
Notes tendered pursuant thereto.
"Redemption Date" when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and
Paragraphs 8 and 9 of the Initial Notes and Paragraphs 7 and 8 of the Exchange
Notes.
"Redemption Price" when used with respect to any Note to be redeemed,
means the price fixed for such redemption pursuant to this Indenture and
Paragraphs 8 and 9 of the Initial Notes and Paragraphs 7 and 8 of the Exchange
Notes.
"Registrar" shall have the meaning set forth in Section 2.3.
"Registration Rights Agreement" means the Registration Rights Agreement
between the Company and the Placement Agents, relating to the Notes and dated as
of March 30, 2000, as the same may be amended, supplemented or modified from
time to time in accordance with the terms thereof.
"Regulation S" means Regulation S (including any successor regulation
thereto) under the Securities Act, as it may be amended from time to time.
"Regulation S Global Note" shall have the meaning set forth in Section
2.1.
"Regulation S Note" shall have the meaning set forth in Section 2.1.
"Relevant Taxing Jurisdiction" shall have the meaning set forth in
Section 4.20.
"Replacement Assets" means any property, plant or equipment of a nature
or type that are used or usable in Permitted Businesses.
<PAGE>
18
"Representatives" means Morgan Stanley & Co. International Limited and
Lehman Brothers International (Europe), as representatives of the Placement
Agents.
"Restricted Period" shall have the meaning set forth in Section 2.7(c).
"Restricted Subsidiary" means, at any time, any direct or indirect
Subsidiary of the Company that is then not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 (including any successor regulation thereto)
under the Securities Act, as it may be amended from time to time.
"Rule 144A" means Rule 144A (including any successor regulation
thereto) under the Securities Act, as it may be amended from time to time.
"Rule 144A Global Note" shall have the meaning set forth in Section
2.1.
"S&P" means Standard and Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission.
"Second High Yield Offering" means the issuance and sale by the Company
on December 3, 1998 of $150,000,000 in aggregate principal amount of 13 1/4%
Senior Notes due 2008 and warrants to purchase 2,000,100 (as adjusted) ordinary
shares.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Share Capital" means, at any time of determination, the stated capital
of the Equity Interests (other than Redeemable Stock) and additional paid-in
capital of the Company as set forth on the Most Recent Balance Sheet of the
Company at such time.
"Significant Subsidiary" means, at any date of determination, (i) any
Subsidiary of the Company that, together with its Subsidiaries, (A) for the most
recent fiscal year of the Company, accounted for more than 10% of the
consolidated revenues of the Company or (B) as of the end of such fiscal year,
was the owner of more than 10% of the consolidated assets of the Company, all as
set forth on the most recently available consolidated financial statements of
the Company for such fiscal year prepared in conformity with U.S. GAAP and (ii)
any Subsidiary which, when aggregated with all other Subsidiaries that are not
otherwise Significant Subsidiaries and as to which any event described in
Sections 6.1(h) or 6.1(i) has occurred and is continuing, would constitute a
Significant Subsidiary under clause (i) of this definition.
"Stated Maturity" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of
<PAGE>
19
principal of or interest on any debt security, the date specified in such debt
security as the fixed date on which such installment is due and payable.
"Strategic Subordinated Indebtedness" means Indebtedness of the Company
or a Restricted Subsidiary Incurred to finance the acquisition of a Person
engaged in a business that is related, ancillary or complementary to the
Permitted Business; which Indebtedness by its terms or by the terms of any
agreement or instrument pursuant to which such Indebtedness is Incurred (x) is
expressly made subordinate in right of payment to the Notes and (y) provides
that no payment of principal, premium or interest on, or any other payment with
respect to, such Indebtedness may be made prior to the payment in full of all of
the Company's obligations under the Notes; provided that such Indebtedness may
provide for and be repaid at any time from the proceeds of a capital
contribution, the sale of Capital Stock (other than Disqualified Stock) of the
Company, or other Strategic Subordinated Indebtedness Incurred, after the
Incurrence of such Indebtedness.
"Subsidiary" means, with respect to any Person (i) any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is at the time of determination owned, directly or indirectly, by
such Person or one or more other Subsidiaries of such Person and (ii) any
partnership, joint venture, limited liability company or similar entity of which
(A) more than 50% of the capital accounts, distribution rights, total equity and
voting interests or general or limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of
the other Subsidiaries of that Person or a combination thereof whether in the
form of membership, general, special or limited partnership or otherwise and (B)
such Person or any Restricted Subsidiary of such Person is a controlling general
partner, co-venturer or manager or is in a similar position or otherwise
controls such entity.
"Successor Company" shall have the meaning set forth in Section 5.1.
"Taxes" shall have the meaning set forth in Section 4.20.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb), as it may be amended from time to time.
"Telecommunications Assets" means, with respect to any Person, assets
used in the Permitted Business (or Equity Interests of a Person that becomes a
Restricted Subsidiary, the assets of which consist principally of such
Telecommunications Assets) that are purchased or acquired by the Company or a
Restricted Subsidiary after the Issue Date.
"Trade Payables" means any accounts payable or any other indebtedness
or monetary obligation to trade creditors created, assumed or Guaranteed by the
Company or any of its Restricted Subsidiaries arising in the ordinary course of
business in connection with the acquisition of goods and services.
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20
"Transaction Date" means, with respect to the Incurrence of any
Indebtedness by the Company or any of its Restricted Subsidiaries, the date such
Indebtedness is to be Incurred and, with respect to any Restricted Payment, the
date such Restricted Payment is to be made.
"Trust Officer" means any officer within the corporate trust department
(or any successor group of the Trustee), including any vice president, assistant
vice president, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at that time shall be such officers, and also means, with respect to a
particular corporate trust matter, any other officer to whom such trust matter
is referred because of his or her knowledge of and familiarity with the
particular subject, and who shall have direct responsibility for the
administration of this Indenture.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company which
at the time of determination is an Unrestricted Subsidiary (as designated by the
Board of Directors in the manner provided below) and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary, or any of its
Subsidiaries, owns any Equity Interests or Indebtedness of, or owns or holds any
Lien on any property of, the Company or any Restricted Subsidiary; provided that
(a) the Company certifies in an Officers' Certificate that such designation
complies with Section 4.3, (b) such Subsidiary is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might reasonably be obtained in a
comparable arm's-length transaction at the time from Persons who are not
Affiliates of the Company, (c) neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (1) to bscribe for additional
Equity Interests in such Subsidiary or any Subsidiary of such Subsidiary or (2)
to maintain or preserve such Subsidiary's financial condition or to cause such
Subsidiary to achieve any specified levels of operating results and (d) such
Subsidiary and its Subsidiaries has not at the time of designation, and does not
thereafter, Incur any Indebtedness other than Unrestricted Subsidiary
Indebtedness. The Board of Directors may designate any Unrestricted Subsidiary
to be a Restricted Subsidiary of the Company; provided that immediately after
giving effect to such designation (x) the Company could Incur Euro 1.00 of
additional Indebtedness under Section 4.4(a) on a pro forma basis taking into
account such designation and (y) no Default or Event of Default shall have
occurred and be continuing. Any such designation by the Board of Directors shall
be evidenced to the Trustee by promptly filing with the Trustee a copy of the
resolution of the Board of Directors giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
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"Unrestricted Subsidiary Indebtedness" means Indebtedness of any
Unrestricted Subsidiary (i) as to which neither the Company nor any Restricted
Subsidiary is directly or indirectly liable (by virtue of the Company or any
such Restricted Subsidiary being the primary obligor on, guarantor of, or
otherwise liable in any respect to, such Indebtedness), and (ii) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Restricted Subsidiary to
declare, a default on such Indebtedness of the Company or any Restricted
Subsidiary or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"U.S. GAAP" means, at any date of determination, generally accepted
accounting principles as in effect in the United States of America which are
applicable at the date of determination and which are consistently applied for
all applicable periods.
"U.S. Notes" shall have the meaning set forth in Section 2.1.
"U.S. Person" means a "U.S. person" as defined in Rule 902 under the
Securities Act or any successor to such Rule.
"VersaTel Internet" means VersaTel Internet Holding N.V.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily entitled to vote for the election of directors thereof
at a meeting of Stockholders called for such purpose, without the occurrence of
any additional event or contingency.
"Weighted Average Life to Maturity" means, at any date of determination
with respect to any Indebtedness, the quotient obtained by dividing (i) (a) the
sum of the products of the number of years from such date of determination to
the dates of each successive scheduled principal payment of, or redemption or
similar payment with respect to, such Indebtedness multiplied by (b) the amount
of such principal payment, by (ii) the sum of all such principal payments.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary
all of the outstanding voting Equity Interests (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company.
SECTION 1.2 Incorporation by Reference of TIA. This Indenture is
subject to the mandatory provisions of the TIA which as of the date hereof and
thereafter as in effect are incorporated by reference in, and made a part of,
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
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22
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the indenture securities means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.3 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with U.S. GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and words in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating. The Initial Notes and the notation
relating to the Trustee's certificate of authentication shall be substantially
in the form of Exhibits A or B, as applicable. The Exchange Notes and the
notation relating to the Trustee's certificate of authentication shall be
substantially in the form of Exhibits C or D, as applicable. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company and the Trustee shall approve the form of the Notes and any
notation, legend or endorsement on them. Each Note shall be dated the date of
its authentication.
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23
The terms and provisions contained in the Notes, annexed hereto as
Exhibits A, B, C or D, 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. The Notes will initially be represented
by the Initial Global Notes.
Notes offered and sold in their initial distribution in reliance on
Regulation S shall be initially issued as one or more global notes, in
registered global form without interest coupons, substantially in the form of
Exhibit A hereto, with such applicable legends as are provided in Exhibit A
hereto, except as otherwise permitted herein. Such Initial Global Notes shall be
referred to collectively herein as the "Regulation S Global Note." Such
Regulation S Global Note shall be deposited on behalf of the holders of the
Notes represented thereby with the Common Depositary, as common depositary for
Euroclear and Clearstream, and registered in the name of the Common Depositary
or its nominee, duly executed by the Company and authenticated by the Trustee or
an Authenticating Agent as provided herein, for credit to the accounts of
Euroclear and Clearstream (or such other accounts as they may direct). The
aggregate principal amount of the Regulation S Global Note may from time to time
be increased or decreased by adjustments made on the records of the Registrar,
as hereinafter provided (or by the issue of a further Regulation S Global Note),
in connection with a corresponding decrease or increase in the aggregate
principal amount of any of the Rule 144A Global Notes or in consequence of the
issue of Definitive Notes or additional Regulation S Notes, as hereinafter
provided. The Regulation S Global Note and all other Initial Notes that are not
U.S. Notes shall collectively be referred to herein as the "Regulation S Notes".
Notes offered and sold in their initial distribution in reliance on
Rule 144A shall be initially issued as two or more global notes in registered,
global form without interest coupons, substantially in the form of Exhibit A
hereto, with such applicable legends as are provided in Exhibit A hereto, except
as otherwise permitted herein. Such Initial Global Notes shall be referred to
collectively herein as the "Rule 144A Global Notes." Notes initially offered and
sold in reliance on Rule 144A to holders electing settlement through DTC (the
"DTC Rule 144A Global Note") shall be deposited on behalf of the holders of the
Notes represented thereby with the Trustee, at its New York office, as custodian
for DTC, duly executed by the Company and authenticated by the Trustee or
Authenticating Agent as provided herein. Notes initially offered and sold in
reliance on Rule 144A to holders electing settlement through Euroclear or
Clearstream (the "European 144A Global Note") shall be deposited on behalf of
the holders of the Notes represented thereby with the Common Depositary, as
common depositary for Euroclear and Clearstream, and registered in the name of
the Common Depositary or its nominee, duly executed by the Company and
authenticated by the Trustee or an Authenticating Agent as provided herein, for
credit to the accounts of Euroclear and Clearstream (or such other accounts as
they may direct). The DTC Rule 144A Global Note, the European Rule 144A Global
Note and the Regulation S Global Note, shall collectively be referred to herein
as the "Global Notes." The DTC Rule 144A Global Note, the European Rule 144A
Global Note and all other Initial Notes evidencing the debt, or any portion of
the debt, initially evidenced by such Rule 144A
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24
Global Note or European Rule 144A Global Note, shall collectively be referred to
herein as the "U.S. Notes." The aggregate principal amount of the DTC Rule 144A
Global Note may from time to time be increased or decreased by adjustments made
on the records of the Registrar, as hereinafter provided (or by the issue of a
further DTC Rule 144A Global Note), in connection with a corresponding decrease
or increase in the aggregate principal amount of the European Rule 144A Global
Note or the Regulation S Global Note or in consequence of the issue of
Definitive Notes or additional U.S. Notes, as hereinafter provided. The
aggregate principal amount of the European Rule 144A Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Registrar as hereinafter provided (or by the issue of a further European Rule
144A Global Note), in connection with a corresponding decrease or increase in
the aggregate principal amount of any of the DTC Rule 144A Global Note or the
Regulation S Global Note or in consequence of the issue of Definitive Notes or
additional U.S. Notes, as hereinafter provided.
SECTION 2.2 Execution and Authentication. Two Officers, or an Officer
and a Secretary, or the Managing Director of the Company, shall sign, or one
Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Notes for the Company by manual or facsimile
signature.
If an Officer, Managing Director, or Secretary whose signature is on a
Note was an Officer, Managing Director or Secretary at the time of such
execution but no longer holds that office or position at the time the Trustee or
the Authenticating Agent authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate Euro 400,000,000 principal amount of
Notes, which shall consist of (i) Original Notes for original issue in the
aggregate principal amount not to exceed Euro 300,000,000, (ii) Additional Notes
from time to time for issue in an aggregate principal amount not to exceed Euro
100,000,000, which may be issued by the Company after the Closing Date, and
(iii) Exchange Notes from time to time for issue in the aggregate principal
amount not to exceed Euro 400,000,000 for issuance in exchange for a like
principal amount of Initial Notes pursuant to an exchange offer registration
statement under the Securities Act or pursuant to a Private Exchange (as defined
in the Registration Rights Agreement dated the date hereof), in each case upon
receipt of a Company Order in the form of an Officers' Certificate. Exchange
Notes may have such distinctive series designation, and such changes in the form
thereof, as are specified in the written order referred to in the preceding
sentence. Additional Notes will be treated as the same series of Notes as the
Original Notes for all purposes under this Indenture, including, without
limitation, for purposes of waivers, amendments, redemptions and offers to
purchase. The Officers' Certificate shall specify the aggregate principal amount
of Notes to be
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25
authenticated, the series and type of Notes and the date on which the Notes are
to be authenticated, the issue price and the date from which interest on such
Notes shall accrue, whether the Notes are to be Original Notes, Additional Notes
or Exchange Notes, whether the Notes are to be issued as Definitive Notes or
Global Notes and whether or not the Notes shall bear the Private Placement
Legend, or such other information as the Trustee may reasonably request. In
authenticating the Notes and accepting the responsibilities under this Indenture
in relation to the Notes the Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Opinion of Counsel stating that the form and
terms thereof have been established in conformity with the provisions of this
Indenture. The aggregate principal amount of Notes outstanding at any time may
not exceed Euro 400,000,000, except as provided in Section 2.8. Upon receipt of
a Company Order, the Trustee shall authenticate Notes in substitution of Notes
originally issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent ("Authenticating
Agent") reasonably acceptable to the Company to authenticate Notes. Unless
otherwise provided in the appointment, an Authenticating Agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent. An Authenticating Agent has the same rights as an Agent to deal with the
Company and Affiliates of the Company. The Trustee hereby appoints The Bank of
New York to be the Authenticating Agent on the Issue Date.
The Notes shall be issuable only in denominations of Euro 1,000 and any
integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent. The Company shall maintain an
office or agency in London, England, where (i) Global Notes may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (ii)
Global Notes may be presented or surrendered for payment ("Paying Agent") and
(iii) notices and demands in respect of such Global Notes and this Indenture may
be served. In the event that Definitive Notes are issued, (x) Definitive Notes
may be presented or surrendered for registration of transfer or for exchange,
(y) Definitive Notes may be presented or surrendered for payment and (z) notices
and demands in respect of the Definitive Notes and this Indenture may be served
at an office of the Registrar or the Paying Agent, as applicable, in London,
England. The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company, upon notice to the Trustee, may have one or more
co-Registrars and one or more additional Paying Agents reasonably acceptable to
the Trustee. The term "Registrar" includes any co-Registrar and the term "Paying
Agent" includes any additional Paying Agent. The Company initially appoints The
Bank of New York as Registrar and Paying Agent until such time as The Bank of
New York has resigned or a successor has been appointed. The Company also
initially appoints ING Barings N.V. as an additional Paying Agent. The Company
may change any Registrar or Paying Agent without notice to any Holder. Payment
of principal will be made upon the surrender of Definitive Notes at the office
of any Paying Agent. In the case of a transfer of a Definitive Note in part,
upon surrender of the Definitive Note to be transferred, a Definitive Note shall
be issued to the
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26
transferee in respect of the principal amount transferred and a Definitive Note
shall be issued to the transferor in respect of the balance of the principal
amount of the transferred Definitive Note at the office of any transfer agent.
SECTION 2.4 Paying Agent To Hold Assets in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that each
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all
assets held by the Paying Agent for the payment of principal of, Additional
Amounts, if any, Liquidated Damages, if any, premium, if any, or interest on,
the Notes, and shall notify the Trustee of any Default by the Company in making
any such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
SECTION 2.5 List of Holders. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
shall furnish to the Trustee before each Record Date and at such other times as
the Trustee may request in writing a list as of such date and in such form as
the Trustee may reasonably require of the names and addresses of Holders, which
list may be conclusively relied upon by the Trustee.
SECTION 2.6 Book-Entry Provisions for Global Notes. (a) The Global
Notes initially shall (i) be registered in the name of a Clearing Agency or its
nominee, (ii) be delivered to such Clearing Agency or to the custodian or common
depositary for such Clearing Agent and (iii) bear legends as set forth in
Section 2.7(g) hereto.
(b) Notwithstanding any other provisions of this Indenture, a Global
Note may not be transferred as a whole except by a Clearing Agency to a nominee
of such Clearing Agency or by a nominee of such Clearing Agency to the Clearing
Agency or another successor of the Clearing Agency or a nominee of such
successor. Interests of beneficial owners in the Global Notes ("Book-Entry
Interests") may be transferred or exchanged for Definitive Notes in accordance
with the rules and procedures of the Clearing Agency and the provisions of
Section 2.7. The Company shall issue one or more Definitive Notes to owners of
Book-Entry Interests, if (i) any Clearing Agency (A) has notified the Company
that it is unwilling or unable to continue as a clearing agency, or (in the case
of DTC) ceases to be a clearing agency registered under the Exchange Act and (B)
a successor to the Clearing Agency, that (in the case of DTC) is registered as a
clearing agency under the Exchange Act, is not able to be appointed by the
Company within 120 days of such notification; (ii) if any Clearing Agency so
requests following an Event of Default which occurs and is continuing; (iii) if
the owner of a Book-Entry Interest requests such exchange in writing delivered
through a Clearing Agency following an Event of Default which has occurred and
is continuing or (iv) at any time at the option of the Company; provided,
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27
however, that the principal amount at maturity of such Definitive Notes and such
Global Note after such exchange shall be Euro 1,000 or integral multiples
thereof. Whenever all of a Global Note is exchanged for one or more Definitive
Notes, it shall be surrendered by the Holder thereof to the Trustee for
cancellation. Whenever a Book-Entry Interest is exchanged for one or more
Definitive Notes, the Global Note representing such Book-Entry Interest shall be
surrendered by the Holder thereof to the Registrar who shall cause an adjustment
to be made to Schedule A of such Global Note such that the principal amount of
such Global Note will be equal to the portion of the Book-Entry Interests
represented by such Global Note not exchanged for Definitive Notes, and the
Register shall thereafter return such Global Note to such Holder. A Global Note
may not be exchanged for a Definitive Note other than as provided in this
Section 2.6(b).
(c) In connection with the exchange of Book-Entry Interests represented
by Global Notes for Definitive Notes to owners of such Book-Entry Interests
pursuant to paragraph (b) of this Section 2.6, the Company shall execute, and
the Trustee or the Authenticating Agent shall upon written instructions from the
Company authenticate and make available for delivery, to each owner of such
Book-Entry Interests identified by a Clearing Agency in exchange for its
Book-Entry Interest in the Global Notes, an equal aggregate principal amount of
Definitive Notes of authorized denominations.
(d) Any Definitive Note constituting a U.S. Note delivered in exchange
for an interest in a Global Note pursuant to paragraph (b) of this Section 2.6
shall, except as otherwise provided by Section 2.8, bear the Private Placement
Legend.
SECTION 2.7 Registration of Transfer and Exchange. (a) Notwithstanding
any provision to the contrary herein, so long as a Note remains outstanding,
transfers of beneficial interests in Global Notes or transfers of Definitive
Notes, in whole or in part, shall be made only in accordance with this Section
2.7.
(b) Rule 144A Global Note to Regulation S Global Note. If a holder of a
beneficial interest in a Rule 144A Global Note wishes at any time to exchange
its interest in such Rule 144A Global Note for an interest in the Regulation S
Global Note, or to trans fer its interest in such Rule 144A Global Note to a
Person who wishes to take delivery thereof in the form of an interest in such
Regulation S Global Note, such holder may, subject to the rules and procedures
of the Clearing Agency and the Common Depositary, to the extent applicable, and
to the requirements set forth in the following sentence, exchange or cause the
exchange or transfer or cause the transfer of such interest for an equivalent
beneficial interest in such Regulation S Global Note. Upon receipt by the
Registrar at its office in London, England of (1) instructions given in
accordance with the procedures of the Clearing Agency and the Common Depositary,
to the extent applicable, from or on behalf of a holder of a beneficial interest
in a Rule 144A Global Note, directing the Registrar, to credit or cause to be
credited a beneficial interest in the Regulation S Global Note in an amount
equal to the beneficial interest in a Rule 144A Global Note to be ex changed or
transferred, (2) a written order given in accordance with the procedures of the
Clearing Agency and the Common Depositary, to the extent applicable, containing
information
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28
regarding the account to be credited with such increase and the name of such
account, and (3) a certificate in the form of Exhibit E given by the holder of
such beneficial interest stating that the exchange or transfer of such interest
has been made pursuant to and in accordance with Rule 904 of Regulation S or
Rule 144(A) under the Securities Act, the Registrar shall promptly deliver
appropriate instructions to the Clearing Agency, to reduce or reflect on its
records a reduction of a Rule 144A Global Note by the aggregate principal amount
of the beneficial interest in such Rule 144A Global Note to be so exchanged or
transferred from the relevant participant, and the Registrar shall promptly
deliver appro priate instructions to the Common Depositary concurrently with
such reduction, to increase or reflect on its records an increase of the
principal amount of such Regulation S Global Note by the aggregate principal
amount of the beneficial interest in such Rule 144A Global Note to be so
exchanged or transferred, and to credit or cause to be credited to the account
of the Person specified in such instructions of a beneficial interest in such
Regulation S Global Note equal to the reduction in the principal amount of such
Rule 144A Global Note.
(c) Regulation S Global Note to Rule 144A Global Note. If a holder of a
beneficial interest in the Regulation S Global Note wishes at any time to
exchange its interest in such Regulation S Global Note for an interest in a Rule
144A Global Note, or to transfer its interest in such Regulation S Global Note
to a Person who wishes to take deliv ery thereof in the form of an interest in
such Rule 144A Global Note, such holder may, subject to the rules and procedures
of the Common Depositary and the Clearing Agency, to the extent applicable, and
to the requirements set forth in the following sentence, exchange or cause the
exchange or transfer or cause the transfer of such interest for an equivalent
beneficial interest in such Rule 144A Global Note. Upon receipt by the Registrar
at its of fice in London, England of (l) instructions given in accordance with
the procedures of the Clearing Agency, to the extent applicable, from or on
behalf of a beneficial owner of an interest in the Regulation S Global Note
directing the Registrar to credit or cause to be credited a beneficial interest
in a Rule 144A Global Note in an amount equal to the benefi cial interest in the
Regulation S Global Note to be exchanged or transferred, (2) a written order
given in accordance with the procedures of the Common Depositary and the
Clearing Agency, to the extent applicable, containing information regarding the
account to be credited with such increase and the name of such account, and (3)
prior to or on the 40th day after the later of the commencement of the offering
of the Notes and the Closing Date (the "Restricted Period"), a certificate in
the form of Exhibit F given by the holder of such beneficial interest and
stating that the Person transferring such interest in such Regulation S Global
Note reasonably believes that the Person acquiring such interest in such Rule
144A Global Note is a Qualified Institutional Buyer (as defined in Rule 144A)
and is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and any applicable Securities laws of any state of the
United States or any other jurisdiction, the Registrar shall promptly deliver
appropriate instructions to the Common Depositary to reduce or reflect on its
records a reduction of the Regulation S Global Note by the aggregate principal
amount of the beneficial interest in such Regulation S Global Note to be
exchanged or transferred, and the Registrar shall promptly deliver appropriate
instructions to the Clearing Agency concurrently with such reduction, to
increase or reflect on its records an increase of the principal amount of such
Rule 144A Global Note by the aggregate
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principal amount of the beneficial interest in such Regulation S Global Note to
be so exchanged or transferred, and to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in
such Rule 144A Global Note equal to the reduction in the principal amount of
such Regulation S Global Note. After the expiration of the Restricted Period,
the certification requirement set forth in clause (3) of the second sentence of
this Section 2.7(c) will no longer apply to such transfers.
(d) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in another
Global Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in the other Global Note and, accordingly, will thereafter be
subject to all transfer restrictions and other procedures applicable to
beneficial interests in such other Global Note for as long as it remains such an
interest.
(e) Other Exchanges. In the event that a Global Note is exchanged for
Definitive Notes in registered form without interest coupons, pursuant to
Section 2.6(b), or a Definitive Note in registered form without interest coupons
is exchanged for another such Definitive Note in registered form without
interest coupons, or a Definitive Note is exchanged for a beneficial interest in
a Global Note, such Notes may be exchanged or transferred for one another only
in accordance with such procedures as are substantially consistent with the
provisions of Sections 2.7(b) and (c) above (including the certification
requirements intended to ensure that such exchanges or transfers comply with
Rule 144, Rule 144A or Regulation S, as the case may be) and as may be from time
to time adopted by the Company and the Trustee.
(f) Interests in Regulation S Global Note to be Held Through Euroclear
or Clearstream. Beneficial interests in the Regulation S Global Note may only be
held through Agent Members of Euroclear and Clearstream Banking.
(g) Private Placement Legend. Each Note issued hereunder shall, upon
issuance, bear the legend set forth herein and such legend shall not be removed
from such Note except as provided in the next sentence. The legend required for
a U.S. Note may be removed from a U.S. Note if there is delivered to the Company
and the Trustee 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 and the Trustee, that neither such legend nor
the restrictions on transfer set forth therein are required to ensure that
transfers of such Note 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 Note another Note or Notes having an equal aggregate principal amount that
does not bear such legend. If such a legend required for a U.S. Note has been
removed from a U.S. Note as provided above, no other Note issued in exchange for
all or any part of such Note shall bear such legend, unless the Company has
reasonable cause to believe that such other Note is a "restricted security"
within the meaning of Rule 144 and instructs the Trustee to cause a legend to
appear thereon.
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The Initial Notes shall bear the following legend (the "Private
Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
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. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 904 OF REGULATION S, (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 OF 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, (B) PURSUANT TO
A REGISTRATION STATEMENT WHICH HAS 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 "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3)
AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE
COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
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DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO
REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE, 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 MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.
(h) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Agent Members or
beneficial owners of interest in any Global Note) other than to require delivery
of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this
Indenture, and to examine the same to determine substantial compliance as to
form with the express requirements hereof.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.6 or this Section 2.7. 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 written notice to the Registrar.
(i) Any Initial Notes which are presented to the Registrar for
exchange pursuant to the Exchange Offer shall be exchanged for Exchange Notes of
equal principal amount upon surrender to the Registrar of the Initial Notes to
be exchanged; provided, however, that the Initial Notes so surrendered for
exchange shall be duly endorsed and accompanied by a letter of transmittal or
written instrument of transfer in form satisfactory to the Company, the Trustee
and the Registrar duly executed by the Holder thereof or his attorney who shall
be duly authorized in writing to execute such document. Whenever any Initial
Notes are so surrendered for exchange, the Company shall execute, and upon
receipt of the Company Order provided for in Section 2.2, the Trustee or the
Authenticating Agent shall authenticate and deliver to the Holder the same
aggregate principal amount of Exchange Notes as those Initial Notes that have
been surrendered.
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(j) Definitive Notes shall be transferable only upon the surrender of a
Definitive Note for registration of transfer. When a Definitive Note is
presented to the Registrar or a co-registrar with a request to register a
transfer, the Registrar shall register the transfer as requested if its
requirements for such transfers are met. When Definitive Notes are presented to
the Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Definitive Notes of other denominations, the Registrar shall
make the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Definitive Notes at the Registrar's or co-registrar's
request.
(k) The Company shall not be required to make, and the Registrar need
not register transfers or exchanges of, Definitive Notes for a period of 15 days
before (i) the record date for any payment of interest on the Notes, (ii) any
date fixed for redemption of the Notes or (iii) the date fixed for selection of
Notes to be redeemed in part.
(l) Prior to the due presentation for registration of transfer of any
Definitive Note, the Company, the Trustee, the Paying Agent, the Registrar or
any co-registrar may deem and treat the Person in whose name a Definitive Note
is registered as the absolute owner of such Definitive Note for the purpose of
receiving payment of principal, interest, Additional Amounts, if any, or
Liquidated Damages, if any, on such Definitive Note and for all other purposes
whatsoever, whether or not such Definitive Note is overdue, and none of the
Company, the Trustee, the Paying Agent, the Registrar or any co-registrar shall
be affected by notice to the contrary.
(m) The Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges in connection with any transfer
or exchange pursuant to this Section 2.7 (other than in respect of the Exchange
Offer, except as otherwise provided in the Registration Rights Agreement).
(n) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Notes surrendered upon such transfer
or exchange.
(o) Holders of Initial Notes (or holders of interests therein) and
prospective purchasers designated by such Holders (or holders of interests
therein) will have the right to obtain from the Company upon request by such
Holders (or holders of interests therein) or prospective purchasers, during any
period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the
Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in
connection with any transfer or proposed transfer of such Notes.
SECTION 2.8 Replacement Notes. If a mutilated Definitive Note is
surrendered to the Registrar, if a mutilated Global Note is surrendered to the
Company or if the Holder of a Note claims that such Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note in such form as
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33
the Note being replaced if the requirements of the Trustee, the Registrar and
the Company are met. If required by the Trustee, the Registrar or the Company,
such Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of the Company, the Registrar and the Trustee, to protect the Company,
the Registrar, the Trustee and any Agent from any loss which any of them may
suffer if a Note is replaced. The Company may charge such Holder for its
reasonable, out-of-pocket expenses in replacing a Note, including reasonable
fees and expenses of counsel. Every replacement Note is an additional obligation
of the Company.
SECTION 2.9 Outstanding Notes. Notes outstanding at any time are all
the Notes that have been authenticated by the Trustee except those cancelled by
it, those delivered to it for cancellation, those reductions in the Global Note
effected in accordance with the provisions hereof and those described in this
Section as not outstanding. Subject to Section 2.10, a Note does not cease to be
outstanding because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.8 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.8.
If the principal amount of any Note is considered paid under Section
4.1 hereof, it ceases to be outstanding and interest, Additional Amounts, if
any, and Liquidated Damages, if any, on it cease to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent holds
cash in euros or Government Securities sufficient to pay all of the principal
and interest due on the Notes payable on that date, then on and after that date
such Notes cease to be outstanding and interest, Additional Amounts, if any, and
Liquidated Damages, if any, on such Notes cease to accrue.
SECTION 2.10 Treasury Notes. In determining whether the Holders of the
required principal amount of Notes have concurred in any direction, waiver or
consent, Notes owned by the Company or its Affiliates shall be disregarded,
except that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes that a
Trust Officer of the Trustee actually knows are so owned shall be disregarded.
The Company shall notify the Trustee, in writing, when it or any of its
Affiliates repurchases or otherwise acquires Notes of the aggregate principal
amount of such Notes so repurchased or otherwise acquired. The Trustee may
require an Officers' Certificate listing Notes owned by the Company, a
Subsidiary of the Company or an Affiliate of the Company.
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SECTION 2.11 Temporary Notes. Until permanent Definitive Notes are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Definitive Notes upon receipt of a Company Order in the form of an
Officers' Certificate. The Officers' Certificate shall specify the amount of
temporary Definitive Notes to be authenticated and the date on which the
temporary Definitive Notes are to be authenticated. Temporary Definitive Notes
shall be substantially in the form of permanent Definitive Notes but may have
variations that the Company considers appropriate for temporary Definitive
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate upon receipt of a Company Order pursuant to Section 2.2
permanent Definitive Notes in exchange for temporary Definitive Notes.
SECTION 2.12 Cancellation. The Company at any time may deliver Notes to
the Trustee for cancellation. The Registrar and the Paying Agent shall forward
to the Trustee any Notes surrendered to them for transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel and, at the written direction of the
Company, shall dispose of (subject to the record retention requirements of the
Exchange Act) all Notes surrendered for transfer, exchange, payment or
cancellation; provided, however, that the Trustee may, but shall not be required
to, destroy such cancelled Notes. Subject to Section 2.7, the Company may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.12.
SECTION 2.13 Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay the defaulted interest, plus (to the
extent lawful) any interest payable on the defaulted interest, to the Holder
thereof on a subsequent special record date, which date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest. The Company shall notify the Trustee and Paying Agent in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment (a "Default Interest Payment Date"), and at the same
time the Company shall deposit with the Trustee or Paying Agent 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 or
Paying Agent 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 Section 2.13; provided, however, that in
no event shall the Company deposit monies proposed to be paid in respect of
defaulted interest later than 1:00 p.m. London time on the proposed Default
Interest Payment Date with respect to defaulted interest to be paid on the Note.
At least 15 days before the subsequent special record date, the Company shall
mail to each Holder, with a copy to the Trustee, a notice that states the
subsequent special record date, the payment date and the amount of defaulted
interest, and interest payable on such defaulted interest, if any, to be paid.
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SECTION 2.14 CUSIP, ISIN and Common Code Numbers. The Company in
issuing the Notes may use a "CUSIP", "ISIN" or "Common Code" number, and if so,
the Trustee shall use the CUSIP, ISIN and Common Code number 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 the CUSIP, ISIN and Common Code number printed in the notice or on
the Notes, and that reliance may be placed only on the other identification
numbers printed on the Notes. The Company shall promptly notify the Trustee of
any change in any CUSIP, ISIN or Common Code number.
SECTION 2.15 Deposit of Moneys. Prior to 1:00 p.m. London time on each
Interest Payment Date and Maturity Date, the Company shall have deposited with
the Paying Agent in immediately available funds money sufficient to make cash
payments, if any, due on such Interest Payment Date or Maturity Date, as the
case may be, on all Notes then outstanding. Such payments shall be made by the
Company in a timely manner which permits the Paying Agent to remit payment to
the Holders on such Interest Payment Date or Maturity Date, as the case may be.
SECTION 2.16 Certain Matters Relating to Global Notes. (a) Members of,
or participants in a Clearing Agency ("Agent Members") shall have no rights
under this Indenture with respect to any Global Note held on their behalf by the
Clearing Agency or the Common Depositary or under the Global Note, and any of
the Clearing Agency, the Common Depositary or any of their nominees may be
treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of the Global Note 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 Clearing
Agency or the Common Depositary or impair, as between the Clearing Agency and
its Agent Members or the Common Depositary and Euroclear and Clearstream, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
(b) The Holder of any Global Note may grant proxies and otherwise
authorize any person, including a Clearing Agency and its Agent Members and the
Common Depositary and persons that may hold interests through Agent Members or
Euroclear and Clearstream, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
ARTICLE III
REDEMPTION
SECTION 3.1 Optional Redemption. The Company may redeem all or any
portion of the Notes, upon the terms and at the redemption prices set forth in
each of the
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Notes. Any redemption pursuant to this Section 3.1 shall be made pursuant to the
provisions of this Article III.
SECTION 3.2 Notices to Trustee. If the Company elects to redeem Initial
Notes pursuant to Paragraphs 8 or 9 of such Notes or Exchange Notes pursuant to
Paragraphs 7 or 8 thereof, it shall notify the Trustee in writing of the
Redemption Date and the principal amount of Notes to be redeemed at least 15
days prior to the giving of the notice contemplated by Section 3.4 (or such
shorter period as the Trustee in its sole discretion shall determine). The
Company shall give notice of redemption as required under the relevant paragraph
of the Notes pursuant to which such Notes are being redeemed.
SECTION 3.3 Selection of Notes To Be Redeemed. If less than all of the
Notes are to be redeemed at any time, selection of such Notes for redemption
will be made by the Trustee in compliance with the requirements of the principal
securities exchange, if any, on which such Notes are listed, or if such Notes
are not so listed or such exchange prescribes no method of selection, on a pro
rata basis, by lot or by such other method as the Trustee in its sole discretion
shall deem appropriate (and in such manner as complies with applicable legal and
exchange requirements); provided, however, that no Note of Euro 1,000 in
aggregate principal amount or less shall be redeemed in part. In the event of
partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.
SECTION 3.4 Notice of Redemption. At least 30 days but not more than 60
days before a Redemption Date, the Company shall publish in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad and in the Official Price List of the AEX for so long as the Notes are
listed on the AEX and the rules of the AEX so require) or in the case of
Definitive Notes, mail to Holders by first-class mail, postage prepaid, at their
respective addresses as they appear on the registration books of the Registrar.
At the Company's request made at least 45 days before the Redemption Date (or
such shorter period as the Trustee in its sole discretion shall determine), the
Trustee shall give the notice of redemption in the Company's name and at the
Company's expense; provided, however, that the Company shall deliver to the
Trustee, an Officers' Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in the
following items. Each notice for redemption shall identify the Notes to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Prices and the amount of interest, if any,
Additional Amounts, if any, and Liquidated Damages, if any, to be paid;
(c) the name and address of the Paying Agent;
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(d) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued and unpaid interest, if
any, Additional Amounts, if any, and Liquidated Damages, if any;
(e) that, unless the Company defaults in making the redemption payment,
interest, Additional Amounts, if any, and Liquidated Damages, if any, on
Notes called for redemption cease to accrue on and after the Redemption
Date, and the only remaining right of the Holders of such Notes is to
receive payment of the Redemption Price upon surrender to the Paying Agent
of the Notes redeemed;
(f) (i) if any Global Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date, interest, Additional Amounts, if any, and Liquidated
Damages, if any, shall cease to accrue on the portion called for redemption,
and upon surrender of such Global Note, the Global Note with a notation on
Schedule A thereof adjusting the principal amount thereof to be equal to the
unredeemed portion, will be returned and (ii) if any Definitive Note is
being redeemed in part, the portion of the principal amount of such Note to
be redeemed, and that, after the Redemption Date, upon surrender of such
Definitive Note, a new Definitive Note or Notes in aggregate principal
amount equal to the unredeemed portion thereof will be issued in the name of
the Holder thereof, upon cancellation of the original Note;
(g) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption;
(h) the paragraph of the Notes pursuant to which the Notes are to be
redeemed; and
(i) the CUSIP, ISIN or Common Code number, and that no representation
is made as to the correctness or accuracy of the CUSIP, ISIN or Common Code
number, if any, listed in such notice or printed on the Notes.
SECTION 3.5 Effect of Notice of Redemption. Once notice of redemption
is given in accordance with Section 3.4, Notes called for redemption become due
and payable on the Redemption Date and at the Redemption Price plus accrued and
unpaid interest, if any, Additional Amounts, if any, and Liquidated Damages, if
any. Upon surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the Redemption Price (which shall include accrued
and unpaid interest thereon, if any, Additional Amounts, if any, and Liquidated
Damages, if any, to the Redemption Date), but installments of interest, the
maturity of which is on or prior to the Redemption Date, shall be payable to
Holders of record at the close of business on the relevant Record Dates.
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SECTION 3.6 Deposit of Redemption Price. Prior to 1:00 p.m. London time
on the Redemption Date, the Company shall deposit with the Paying Agent cash in
euros sufficient to pay the Redemption Price plus accrued and unpaid interest,
if any, Additional Amounts, if any, and Liquidated Damages, if any, of all Notes
to be redeemed on that date. The Paying Agent shall promptly return to the
Company any cash in euros so deposited which is not required for that purpose
upon the written request of the Company.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued and unpaid
interest, if any, Additional Amounts, if any, and Liquidated Damages, if any,
interest, Additional Amounts and Liquidated Damages on the Notes to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or not
such Notes are presented for payment. With respect to Definitive Notes, if a
Definitive Note is redeemed on or after an interest Record Date but on or prior
to the related Interest Payment Date, then any accrued and unpaid interest,
Additional Amounts, if any, and Liquidated Damages, if any, shall be paid to the
Person in whose name such Note was registered at the close of business on such
Record Date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest, Additional Amounts, if any, and Liquidated
Damages, if any, shall be paid on the unpaid principal, from the redemption date
until such principal is paid, and to the extent lawful on any interest not paid
on such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.1.
SECTION 3.7 Notes Redeemed in Part. Upon surrender and cancellation of
a Definitive Note that is redeemed in part, the Company shall execute and the
Trustee or the Authenticating Agent shall authenticate for the Holder (at the
Company's expense) a new Definitive Note equal in principal amount to the
unredeemed portion of the Definitive Note surrendered and cancelled; provided,
however, that each such Definitive Note shall be in a principal amount at
maturity of Euro 1,000 or an integral multiple thereof. Upon surrender of a
Global Note that is redeemed in part, the Paying Agent shall forward such Global
Note to the Registrar who shall make a notation on Schedule A thereof to reduce
the principal amount of such Global Note to an amount equal to the unredeemed
portion of the Global Note surrendered; provided, however, that each such Global
Note shall be in a principal amount at maturity of Euro 1,000 or an integral
multiple thereof.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes. The Company shall pay the principal,
premium, if any, interest, Additional Amounts, if any, and Liquidated Damages,
if any, on the Notes in the manner provided in such Notes and this Indenture. An
installment of principal of or interest on the Notes shall be considered paid on
the date it is due if the
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Trustee or Paying Agent holds at 1:00 p.m. London time on that date money
deposited by the Company in immediately available funds and designated for, and
sufficient to pay the installment in full and is not prohibited from paying such
money to the Holders pursuant to the terms of this Indenture.
SECTION 4.2 Maintenance of Office or Agency. The Company shall maintain
the office or agency (which office may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-Registrar) required under Section 2.3
where Notes may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 11.2.
SECTION 4.3 Limitation on Restricted Payments. (a) The Company will
not, and will not permit any Restricted Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or make any distribution on account of any
Equity Interest in the Company or any Restricted Subsidiary to the holders
thereof, including any dividend or distribution payable in connection with any
merger or consolidation (other than (A) dividends or distributions payable
solely in Equity Interests (other than Redeemable Stock) of the Company, (B)
dividends or distributions made only to the Company or a Restricted Subsidiary
and (C) pro rata dividends or distributions on Capital Stock of a Restricted
Subsidiary held by Persons other than the Company or a Restricted Subsidiary),
(ii) purchase, redeem, retire or otherwise acquire for value any Equity
Interests of the Company or any Equity Interests of any Restricted Subsidiary
(other than any such Equity Interests owned by the Company or any Restricted
Subsidiary), (iii) make any principal payment or redeem, repurchase, defease, or
otherwise acquire or retire for value, in each case, prior to any scheduled
repayment, or maturity, any Indebtedness of the Company that is subordinated in
right of payment to the Notes, or (iv) make any Investment, other than a
Permitted Investment, in any Person (all such payments or any other actions
described in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments") unless, at the time of, and after giving effect to, the
proposed Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing;
(B) the Company could Incur at least Euro 1.00 of additional
Indebtedness under Section 4.4(a); and
(C) the aggregate amount expended for all Restricted Payments (the
amount so expended, if other than in cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive and evidenced by a
Board Resolution) after May 20, 1998 is less than the sum of (1) Cumulative
Consolidated Cash Flow minus 150% of
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Cumulative Consolidated Fixed Charges plus (2) 100% of the aggregate Net Cash
Proceeds received by the Company after May 20, 1998 as a capital contribution or
from the issuance and sale of its Equity Interests (other than Redeemable Stock,
and except to the extent such proceeds are used to Incur new Indebtedness
pursuant to Section 4.4(b)(x)) to a Person (other than a Restricted Subsidiary
of the Company), plus (3) the aggregate amount by which Indebtedness (other than
any Indebtedness subordinated in right of payment to the Notes) of the Company
or any Restricted Subsidiary is reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Restricted Subsidiary of the Company)
subsequent to May 20, 1998 into Equity Interests (other than Redeemable Stock
and less the amount of any cash, or the fair value of property, distributed by
the Company or any Restricted Subsidiary upon such conversion or exchange) and
plus (4) without duplication of any amount included in the calculation of
Consolidated Net Income, in the case of repayment of, or return of capital in
respect of, any Investment constituting a Restricted Payment made after May 20,
1998, an amount equal to the lesser of the repayment of, the return of capital
with respect to, such Investment and the cost of such Investment, in either case
less the cost of the disposition of such Investment and net of taxes.
(b) The foregoing provisions in Section 4.3(a) shall not prohibit:
(i) the payment of any dividend within 60 days after the date of
declaration thereof if, at said date of declaration, such payment would
comply with the provisions of this Indenture; (ii) the redemption,
repurchase, defeasance or other acquisition or retirement for value of
Indebtedness that is subordinated in right of payment to the Notes including
premium, if any, and accrued and unpaid interest, with the proceeds of, or
in exchange for, Indebtedness Incurred under Section 4.4(b)(iv); (iii) the
repurchase, redemption or other acquisition of Equity Interests in the
Company in exchange for, or out of the Net Cash Proceeds of, a substantially
concurrent capital contribution or offering of Equity Interests (other than
Redeemable Stock) in the Company to any Person (other than a Restricted
Subsidiary); (iv) the repurchase, redemption or other acquisition of
Indebtedness of the Company which is subordinated in right of payment to the
Notes in exchange for, or out of the Net Cash Proceeds of, a substantially
concurrent capital contribution or offering of Equity Interests (other than
Redeemable Stock) in the Company to any Person (other than a Restricted
Subsidiary); (v) the purchase of any subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount thereof following a
Change of Control pursuant to an obligation in the instruments governing
such subordinated Indebtedness to purchase or redeem such subordinated
Indebtedness as a result of such Change of Control; provided, however, that
no such purchase or redemption shall be permitted until the Company has
completely discharged its obligations described under Section 4.15
(including the purchase of all Notes tendered for purchase by holders)
arising as a result of such Change of Control; (vi) repurchases of warrants
issued in connection with the First High Yield Offering and the Second High
Yield Offering; (vii) Investments in Permitted Businesses acquired in
exchange for Equity Interests (other than
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41
Redeemable Stock) or made with the Net Cash Proceeds from the issuance and
sale subsequent to May 20, 1998 of Equity Interests to any Person (other
than a Restricted Subsidiary) (except to the extent such proceeds are used
to Incur new Indebtedness pursuant to Section 4.4(b)(x)); (viii) repurchases
of Equity Interests of the Company from directors, officers and employees of
the Company or any of its Restricted Subsidiaries deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options; (ix) payments or distributions, to
dissenting stockholders pursuant to applicable law, pursuant to or in
connection with a consolidation, merger or transfer of assets that complies
with the provisions of the Indenture applicable to mergers, consolidations
and transfers of all or substantially all of the property and assets of the
Company and its Restricted Subsidiaries and (x) other Restricted Payments,
not to exceed Euro 2.5 million;
provided that in the case of clauses (ii) through (x), no Default or Event of
Default shall have occurred and be continuing or occur as a consequence of the
actions or payments set forth therein.
Each Restricted Payment permitted pursuant to this Section 4.3(b)
(other than the Restricted Payments referred to in clauses (ii), (ii) and (iv)
of this Section 4.3(b)) shall be included in calculating whether the conditions
of clause (C) of Section 4.3(a) have been met with respect to any subsequent
Restricted Payments. In the event the proceeds of an issuance of Equity
Interests (other than Redeemable Stock) of the Company are used for the
redemption, repurchase or other acquisition of the Notes, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of Section 4.3(a) only
to the extent such proceeds are not used for such redemption, repurchase or
other acquisition of the Notes.
SECTION 4.4 Limitation on Indebtedness. (a) The Company will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness;
provided, however, that if no Default or Event of Default shall have occurred
and be continuing at the time, or would occur as a consequence, of the
Incurrence of any such Indebtedness and its Restricted Subsidiaries may Incur
Indebtedness under one or more Credit Facilities, the Company may Incur
Indebtedness if immediately thereafter the ratio of (i) the aggregate principal
amount of Indebtedness of the Company and its Restricted Subsidiaries on a
consolidated basis outstanding as of the Transaction Date to (ii) the pro forma
Consolidated Cash Flow (the "Indebtedness to Consolidated Cash Flow Ratio") for
the preceding two full fiscal quarters multiplied by two, determined on a pro
forma basis as if any such Indebtedness had been Incurred and the proceeds
thereof had been applied at the beginning of such two fiscal quarters, would be
greater than zero and less than or equal to 6.0 to 1.
(b) Notwithstanding the foregoing, (except for Indebtedness under
subsection (viii) below) the Company and (except for Indebtedness under
subsections (vi), (vii) and (x) below) any Restricted Subsidiary may Incur each
and all of the following:
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42
(i) Indebtedness under one or more Credit Facilities, in an aggregate
principal amount at any one time outstanding not to exceed the greater of (x)
Euro 200.0 million and (y) 80.0% of Eligible Accounts Receivable at any one time
outstanding, subject to any permanent reductions required by any other terms of
the Indenture;
(ii) Indebtedness Incurred to finance the cost (including the cost of
design, development, acquisition, construction, installation, improvement,
transportation or integration) of network assets (including licenses),
equipment, inventory or other tangible assets used or useful in the Permitted
Business acquired by the Company or a Restricted Subsidiary (including
acquisitions by way of real property, leasehold improvements, Capitalized Leases
and acquisitions of the Capital Stock of a Person that becomes a Restricted
Subsidiary to the extent of the fair market value of the network assets,
equipment, inventory or other tangible assets acquired) after the closing date
or to finance or support working capital or capital expenditures for the
Permitted Business;
(iii) Indebtedness of any Restricted Subsidiary owing to and held by
the Company, Indebtedness of the Company owing to and held by any Restricted
Subsidiary or Indebtedness of any Restricted Subsidiary owing to and held by any
other Restricted Subsidiary; provided that any subsequent issuance or transfer
of any Capital Stock which results in any such Restricted Subsidiary ceasing to
be a Restricted Subsidiary or any subsequent transfer of such Indebtedness
(other than to the Company or another Restricted Subsidiary) shall be deemed, in
each case, to constitute the Incurrence of such Indebtedness not permitted by
this clause (iii); and provided, further, that Indebtedness of the Company to a
Restricted Subsidiary must be unsecured and subordinated in right of payment to
the Notes;
(iv) Indebtedness issued in exchange for, or the net proceeds of which
are used to refinance or refund, then outstanding Indebtedness of the Company or
a Restricted Subsidiary, other than Indebtedness Incurred under clauses (i),
(iii), (v), (viii) and (xii) of this paragraph, and any refinancings thereof in
an amount not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, and reasonable fees and expenses); provided that such new
Indebtedness shall only be permitted under this clause (iv) if (A) in case the
Notes are refinanced in part or the Indebtedness to be refinanced or refunded is
pari passu with the Notes, such new Indebtedness, by its terms or by the terms
of any agreement or instrument pursuant to which such new Indebtedness is issued
or remains outstanding, is expressly made pari passu with, or subordinate in
right of payment to, the remaining Notes, (B) in case the Indebtedness to be
refinanced is subordinated in right of payment to the Notes, such new
Indebtedness, by its terms or by the terms of any agreement or instrument
pursuant to which such new Indebtedness is issued or remains outstanding, is
expressly made subordinate in right of payment to the Notes at least to the
extent that the Indebtedness to be refinanced or refunded is subordinated to the
Notes, (C) the Stated Maturity of such new Indebtedness, determined as of the
date of Incurrence of such new Indebtedness, is no earlier than the Stated
Maturity of the Indebtedness being refinanced or refunded and (D) such new
Indebtedness, determined as of the date of Incurrence of such new Indebtedness,
has a Weighted Average Life to Maturity which is
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43
not less than the remaining Weighted Average Life to Maturity of the
Indebtedness to be refinanced or refunded; and provided, further, that in no
event may Indebtedness of the Company be refinanced or refunded by means of any
Indebtedness of any Restricted Subsidiary pursuant to this clause (iv);
(v) Indebtedness (A) in respect of performance, surety or appeal bonds
or letters of credit supporting Trade Payables, in each case provided in the
ordinary course of business, (B) under Currency Agreements and Interest Rate
Agreements; provided that such agreements do not increase the Indebtedness of
the obligor outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or interest rates or by reason of fees,
indemnities and compensation payable thereunder, and (C) arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
of the Company (other than Guarantees of Indebtedness Incurred for the purpose
of financing such acquisition by the Person acquiring all or any portion of such
business, assets or Restricted Subsidiary), in a principal amount not to exceed
the gross proceeds actually received by the Company or any Restricted Subsidiary
in connection with such disposition;
(vi) Indebtedness, to the extent that the net proceeds thereof are
promptly (A) used to repurchase Notes tendered in a Change of Control Offer or
(B) deposited to defease all of the Notes as described in Sections 8.1 and 8.2;
(vii) Indebtedness of the Company represented by the Notes (other than
the Additional Notes);
(viii) Indebtedness represented by a Guarantee of the Notes and
Guarantees of other Indebtedness of the Company by a Restricted Subsidiary, in
each case permitted by and made in accordance with Section 4.17;
(ix) Acquired Indebtedness;
(x) Indebtedness of (A) the Company not to exceed, at any one time
outstanding, (A) 2.00 times the Net Cash Proceeds from (1) the issuance and sale
after May 20, 1998, other than to a Subsidiary, of Equity Interests (other than
Redeemable Stock) of the Company and (2) capital contributions made in the
Company after May 20, 1998 (other than by a Subsidiary) less, in each case, the
amount of such proceeds used to make Restricted Payments as provided in Section
4.3(a) (C)(2) or Section 4.3(b) (iii), (iv) or (vii) and (B) the fair market
value of any Telecommunications Assets acquired by the Company or such
Restricted Subsidiary in exchange for Equity Interests of the Company issued
after May 20, 1998; provided, however, that in determining the fair market value
of any such Telecommunications Assets so acquired, the fair market value of such
Telecommunications Assets will be determined by a majority of the Board of
Directors of the Company, which
<PAGE>
44
determination will be evidenced by a resolution thereof; and provided, further,
that such Indebtedness does not mature prior to the Stated Maturity of the Notes
and the Weighted Average Life to Maturity of such Indebtedness is longer than
that of the Notes;
(xi) Indebtedness outstanding as of the Issue Date;
(xii) Indebtedness (in addition to Indebtedness permitted under clauses
(i) through (xi) above) in an aggregate principal amount outstanding at any one
time not to exceed an amount equal to 5% of the Company's consolidated net
tangible assets as of such date; and
(xiii) Strategic Subordinated Indebtedness.
(c) Notwithstanding any other provision of this Section 4.4, the
maximum amount of Indebtedness that the Company or any Restricted Subsidiary may
Incur pursuant to Section 4.4(b) shall not be deemed to be exceeded with respect
to any outstanding Indebtedness solely as a result of fluctuations in the
exchange rate of currencies.
(d) For purposes of determining any particular amount of Indebtedness
under Section 4.4(b), Guarantees, Liens or obligations with respect to letters
of credit supporting Indebtedness otherwise included in the determination of
such particular amount shall not be included; provided, however, that the
foregoing shall not in any way be deemed to limit the provisions of Section
4.17. For purposes of determining compliance with Section 4.4, (A) in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described above, the Company, in its sole discretion, shall
classify (or from time to time reclassify) such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of such
clauses and (B) the principal amount of Indebtedness issued at a price that is
less than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in conformity with U.S. GAAP.
SECTION 4.5 Corporate Existence. Except as otherwise permitted by
Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership, limited liability or other existence of each of its
Subsidiaries in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and statutory) of the Company and each of its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right, or
the corporate, partnership, limited liability or other existence of any
Subsidiary, if the Board of Directors of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and each of its Subsidiaries, taken as a whole, and that the loss
thereof is not, and will not be, adverse in any material respect to the Holders.
SECTION 4.6 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, (i)
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45
all material taxes, assessments and governmental charges levied or imposed upon
it or any of its Subsidiaries or upon the income, profits or property of it or
any of its Subsidiaries and (ii) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability or Lien upon the property of it or any of its Subsidiaries; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate provision has been made.
SECTION 4.7 Maintenance of Properties and Insurance. (a) The Company
shall cause all material properties owned by or leased by it or any of its
Subsidiaries useful and necessary to the conduct of its business or the business
of any of its Subsidiaries to be improved or maintained and kept in normal
condition, repair and working order and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
its judgment may be necessary, so that the business carried on in connection
therewith may be properly conducted at all times; provided, however, that
nothing in this Section 4.7 shall prevent the Company or any of its Subsidiaries
from discontinuing the use, operation or maintenance of any of such properties,
or disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors or of the board of directors of any
Subsidiary of the Company concerned, or of an officer (or other agent employed
by the Company or of any of its Subsidiaries) of the Company or any of its
Subsidiaries having managerial responsibility for any such property, desirable
in the conduct of the business of the Company or any Subsidiary of the Company,
and if such discontinuance or disposal is not adverse in any material respect to
the Holders.
(b) To the extent available at commercially reasonable rates, the
Company shall maintain, and shall cause its Subsidiaries to maintain, insurance
with responsible carriers against such risks and in such amounts, and with such
deductibles, retentions, self-insured amounts and co-insurance provisions, as
are customarily carried by similar businesses of similar size.
SECTION 4.8 Compliance Certificate; Notice of Default. (a) The Company
shall deliver to the Trustee, within 90 days after the close of each fiscal
year, an Officers' Certificate stating that a review of the activities of the
Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
it has kept, observed, performed and fulfilled, and has caused each of its
Subsidiaries to keep, observe, perform and fulfill its obligations under this
Indenture and further stating, as to each such Officer signing such certificate,
that, to the best of his knowledge, the Company during such preceding fiscal
year has kept, observed, performed and fulfilled, and has caused each of its
Subsidiaries to keep, observe, perform and fulfill each and every such covenant
contained in this Indenture and no Default occurred during such year and at the
date of such certificate there is no Default which has occurred and is
continuing or, if such signers do know of such Default, the certificate shall
describe its status, with particularity and that, to the best of his or her
knowledge, no event has occurred and remains by reason of which payments on the
account
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46
of the principal of or interest, if any, Additional Amounts, if any, or
Liquidated Damages, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action each is taking or proposes
to take with respect thereto. The Officers' Certificate shall also notify the
Trustee should the Company elect to change the manner in which it fixes its
fiscal year end. The Company shall notify the Trustee of any default or defaults
in the performance of any covenants or agreements under this Indenture within
five Business Days of becoming aware of any such default.
(b) The annual financial statements delivered pursuant to Section 4.10
shall include, so long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, a written report of the
Company's independent accountants (who shall be a firm of established
international reputation) that in conducting their audit of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Articles IV, V or VI of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants shall not
be liable directly or indirectly to any Person for any failure to obtain
knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within 5 Business Days,
upon any officer becoming aware of any Default or any default or event of
default under any document, instrument or agreement representing Indebtedness of
the Company, an Officers' Certificate specifying the Default or such default or
event of default and describing its status with particularity.
SECTION 4.9 Compliance with Laws. The Company shall comply, and shall
cause each of its Subsidiaries to comply, with all applicable statutes, rules,
regulations, orders of the relevant jurisdiction in which they are incorporated
and/or in which they carry on business, all political subdivisions thereof, and
of any relevant governmental regulatory authority, in respect of the conduct of
their respective businesses and the ownership of their respective properties,
except for such noncompliances as would not in the aggregate have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries taken as a whole.
SECTION 4.10 Provision of Financial Statements and Reports. (a) The
Company will file on a timely basis with the SEC, to the extent such filings are
accepted by the SEC and whether or not the Company has a class of securities
registered under the Exchange Act, (i) all annual and quarterly financial
statements and other financial information that would be required to be
contained in a filing with the Commission on Forms 20-F and 10-Q if the Company
were required to file such Forms (which financial statements shall be prepared
in accordance with U.S. GAAP), including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual financial information, a report thereon by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the Commission on Form 8-K if the Company were required to file
such reports. Such quarterly financial information shall be filed with the
Commission within 45 days following
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47
the end of each fiscal quarter of the Company, and such annual financial
information shall be furnished within 90 days following the end of each fiscal
year of the Company. Such annual financial information shall include the
geographic segment financial information required to be disclosed by the Company
under Item 101(d) of Regulation S-K under the Securities Act. The Company shall
also (a) file with the Trustee, and provide to each holder, without cost to such
holder, copies of such reports and documents within 15 days after the date on
which the Company files such reports and documents with the Commission or the
date on which the Company would be required to file such reports and documents
if the Company were so required, and (b) if filing such reports and documents
with the Commission is not accepted by the Commission or is prohibited under the
Exchange Act, to supply at the Company's cost copies of such reports and
documents to any prospective holder promptly upon request. In addition, for so
long as the Notes remain outstanding and the Company is not subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act nor exempt
from reporting under Rule 12g3-2(b) of the Exchange Act, the Company shall
furnish to the Holders and to securities analysts and prospective investors,
upon their request, any information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act and, to any beneficial holder of Notes,
information of the type that would be filed with the Commission pursuant to the
foregoing provisions, upon the request of any such holder. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
(b) Such reports shall be delivered to the Registrar and the Registrar
will mail them at the Company's expense to the Holders at their addresses
appearing in the register of Notes maintained by the Registrar.
(c) Upon qualification of this Indenture with the TIA, the Company
shall also comply with the provisions of TIA Section 314(a).
SECTION 4.11 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 that
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest on the Notes 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 will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
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48
SECTION 4.12 Limitation on Transactions with Shareholders and
Affiliates. (a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction or series of transactions (including, without limitation, the
purchase, sale, lease or exchange of property or assets, or the rendering of any
service) with any direct or indirect holder (or any Affiliate of such holder) of
5% or more of any class of Capital Stock of the Company or with any Affiliate of
the Company or any Restricted Subsidiary, unless:
(i) such transaction or series of transactions is on terms that are no
less favorable to the Company or such Restricted Subsidiary than could
reasonably be obtained in a comparable arm's-length transaction with a
Person that is not such a holder or Affiliate;
(ii) if such transaction or series of transactions involves aggregate
consideration in excess of Euro 5.0 million, then the Company shall
deliver to the Trustee a resolution set forth in an Officers' Certificate
adopted by a majority of the Board of Directors, including a majority of the
independent, disinterested directors, approving such transaction or series
of transactions and certifying that such transaction or series of
transactions comply with Section 4.12(a)(i); and
(iii) if such transaction or series of transactions involves aggregate
consideration in excess of Euro 15.0 million, then the Company will
deliver to the Trustee a written opinion as to the fairness to the Company
or such Restricted Subsidiary of such transaction or series of transactions
from a financial point of view from an internationally recognized investment
banking firm (or, if an investment banking firm is generally not qualified
to give such an opinion, by an internationally recognized appraisal firm or
accounting firm).
(b) The foregoing limitation does not limit and will not apply to (i)
any transaction between the Company and any of its Restricted Subsidiaries or
between Restricted Subsidiaries; (ii) the payment of reasonable and customary
regular fees to directors of the Company or any Restricted Subsidiary who are
not employees of the Company or any Restricted Subsidiary; (iii) transactions
permitted by Section 4.3; (iv) any transaction between the Company or any
Restricted Subsidiary, on the one hand, and any Affiliate of the Company,
engaged primarily in the Permitted Business, on the other hand (x) in the
ordinary course of business and consistent with commercially reasonable
practices or (y) approved by a majority of the independent, disinterested
directors of the Company; (v) transactions pursuant to agreements or
arrangements in effect on March 24, 2000, as such agreements or arrangements are
in effect on March 24, 2000 or as thereafter amended or supplemented in a manner
not adverse to the Holders; (vi) any payment pursuant to any tax sharing
agreement between the Company and any other Person with which the Company files
a consolidated tax return or with which the Company is part of a consolidated
group for tax purposes, provided, however, that such payment is not greater than
that which the Company would be required to pay as a stand-alone taxpayer; and
(vii) customary directors' fees, indemnification and similar arrangements,
employee salaries,
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49
bonuses or employment agreements, compensation or employee benefit arrangements
and incentive arrangements with any officer, director or employee of the Company
or any Restricted Subsidiary entered into in the ordinary course of business
(including customary benefits thereunder).
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries. (a) The Company will not, and will not permit
any Restricted Subsidiary to, directly or indirectly, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any Restricted Subsidiary to:
(i) pay dividends or make any other distributions permitted by
applicable law on any Equity Interests of such Restricted Subsidiary owned
by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other Restricted
Subsidiary,
(iii) make loans or advances to the Company or any other Restricted
Subsidiary, or
(iv) transfer any of its property or assets to the Company or any other
Restricted Subsidiary.
(b) The foregoing provisions shall not prohibit any encumbrances or
restrictions:
(i) existing under or by reason of any agreement in effect on the Issue
Date, and any amendments, supplements, extensions, refinancings, renewals or
replacements of such agreements; provided that the encumbrances and
restrictions in any such amendments, supplements, extensions, refinancings,
renewals or replacements are no more restrictive than those encumbrances or
restrictions that are then in effect and that are being amended,
supplemented, extended, refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Restricted Subsidiary acquired by
the Company or any Restricted Subsidiary after the Issue Date, or the
property or assets of such Restricted Subsidiary, and existing at the time
of such acquisition and not Incurred in contemplation thereof, which
encumbrances or restrictions are not applicable to any Person or the
property or assets of any Person other than such Person or the property or
assets of such Person so acquired, and any amendments, supplements,
extensions, refinancings, renewals or replacements of agreements containing
such encumbrances or restrictions; provided that the encumbrances and
restrictions in any such amendments, supplements, extensions, refinancings,
renewals or
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50
replacements are no more restrictive than those encumbrances or restrictions
that are then in effect and that are being amended, supplemented, extended,
refinanced, renewed or replaced;
(iv) in the case of Section 4.13(a)(iv), (A) that restrict in a
customary manner the subletting, assignment or transfer of any property or
asset that is, or is subject to, a lease, purchase mortgage obligation,
license, conveyance or contract or similar property or asset, (B) existing
by virtue of any transfer of, agreement to transfer, option or right with
respect to, or Lien on, any property or assets of the Company or any
Restricted Subsidiary not otherwise prohibited by this Indenture or (C)
arising or agreed to in the ordinary course of business, not relating to any
Indebtedness, and that do not, individually or in the aggregate, materially
detract from the value of property or assets of the Company or any
Restricted Subsidiary to the Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed pursuant to an
agreement that has been entered into for the sale or disposition of all or
substantially all of the Capital Stock in, or property and assets of, such
Restricted Subsidiary;
(vi) contained in the terms of any Indebtedness or any agreement
pursuant to which such Indebtedness was issued if (A) the encumbrance or
restriction is not materially more disadvantageous to the holders of the
Notes than is customary in comparable financings (as determined by the Board
of Directors in good faith) and (B) the Board of Directors determines in
good faith that any such encumbrance or restriction will not materially
affect the Company's ability to make principal or interest payments on the
Notes; or
(vii) customary limitations on the distribution or disposition of
assets or property in joint venture agreements entered into in the ordinary
course of business with respect to a Restricted Subsidiary that the Company
jointly controls with a strategic commercial partner who has an equity
market capitalization, a net asset value or annual revenues of at least
Euro 500 million and is not an Affiliate of the Company; provided,
however, that such encumbrance or restriction is applicable only to such
Restricted Subsidiary.
Nothing contained in this Section 4.13 shall prevent the Company or any
Restricted Subsidiary from creating, Incurring, assuming or suffering to exist
any Liens otherwise permitted in Section 4.14 that limit the right of the debtor
to dispose of the assets securing such Indebtedness.
SECTION 4.14 Limitation on Liens. The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly, create, Incur,
assume or suffer to exist any Lien (other than Permitted Liens) on any asset or
property of the Company or any Restricted Subsidiary without making effective
provisions for all of the Notes and all other amounts due under the Indenture to
be directly secured equally and ratably with (or, if the
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51
obligation or liability to be secured by such Lien is subordinated in right of
payment to the Notes, prior to) the obligation or liability secured by such
Lien.
SECTION 4.15 Repurchase of Notes upon a Change of Control. (a) Upon the
occurrence of a Change of Control, the Company will make an offer to purchase
all or any part (equal to Euro 1,000 aggregate principal amount and integral
multiple thereof) of the Notes pursuant to the offer described below (the
"Change of Control Offer") at a price in cash (the "Change of Control Payment")
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, thereon to the date of repurchase, plus Additional Amounts, if any,
and Liquidated Damages, if any, to the date of repurchase (and in the case of
Definitive Notes, subject to the right of Holders of record on the relevant
record date to receive interest and Liquidated Damages, if any, due on the
relevant interest payment date and Additional Amounts, if any, in respect
thereof). Within 30 days following any Change of Control, the Company will
publish notice of such in a leading newspaper having a general circulation in
New York (which is expected to be The Wall Street Journal) and in Amsterdam
(which is expected to be Het Financieele Dagblad) or, in the case of Definitive
Notes, mail a notice to each Holder, with a copy to the Trustee, with the
following information: (i) a Change of Control Offer is being made pursuant to
this Section 4.15 and all Notes properly tendered pursuant to such Change of
Control Offer will be accepted for payment; (ii) the purchase price and the
purchase date, which will be no earlier than 30 days nor later than 60 days from
the date such notice is published, or where relevant, mailed, except as may be
otherwise required by applicable law (the "Change of Control Payment Date");
(iii) any Note not properly tendered will remain outstanding and continue to
accrue interest and Liquidated Damages, if any; (iv) unless the Company defaults
in the payment of the Change of Control Payment, all Notes accepted for payment
pursuant to the Change of Control Offer will cease to accrue interest, as the
case may be, and to accrue Liquidated Damages, if any, on the Change of Control
Payment Date; (v) Holders electing to have any Notes purchased pursuant to a
Change of Control Offer will be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes
completed, to the Paying Agent and at the address specified in the notice prior
to the close of business on the third Business Day preceding the Change of
Control Payment Date; (vi) Holders will be entitled to withdraw their tendered
Notes and their election to require the Company to purchase such Notes;
provided, however, that the Paying Agent receives, not later than the close of
business on the last day of the offer period, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes tendered for
purchase, and a statement that such Holder is withdrawing his tendered Notes and
his election to have such Notes purchased; and (vii) that Holders whose Notes
are being purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the principal amount of the Notes
surrendered, which unpurchased portion must be equal to Euro 1,000 in principal
amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder and will
comply with the applicable laws of any non-U.S. jurisdiction in which a Change
of Control Offer is
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52
made, in each case, to the extent such laws or regulations are applicable in
connection with the repurchase of the Notes pursuant to a Change of Control
Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture, the Company will comply with the
applicable securities laws and regulations and shall not be deemed to have
breached its obligations contained in this Indenture by virtue thereof. The
provisions relating to the Company's obligation to make an offer to repurchase
the Notes as a result of a Change of Control may be waived or modified with the
written consent of the Holders of a majority in principal amount of the Notes.
(b) On the Change of Control Payment Date, the Company will, to the
extent permitted by law, (i) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (ii) deposit with the
Paying Agent an amount equal to the aggregate Change of Control Payment in
respect of all Notes or portions thereof so tendered and (iii) deliver, or cause
to be delivered, to the Trustee for cancellation the Notes so accepted together
with an Officers' Certificate stating that such Notes or portions thereof have
been tendered to and purchased by the Company. The Paying Agent will promptly
either (x) pay to the Holder against presentation and surrender (or, in the case
of partial payment, endorsement) of the Global Notes or (y) in the case of
Definitive Notes, mail to each Holder of Notes postage prepaid, the Change of
Control Payment for such Notes, and the Trustee will promptly authenticate and
deliver to the Holder of the Global Notes a new Global Note or Notes or, in the
case of Definitive Notes, mail to each Holder a new Definitive Note, as
applicable, equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, however, that each new Definitive Note will be in
a principal amount of Euro 1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
SECTION 4.16 Limitation on Asset Sales. (a) The Company will not, and
will not permit any Restricted Subsidiary to, make any Asset Sale unless (i) the
Company or the Restricted Subsidiary, as the case may be, receives consideration
at the time of such Asset Sale at least equal to the Fair Market Value of the
assets sold or disposed of and (ii) at least 75% of the consideration received
for such Asset Sale consists of cash or other Qualified Consideration.
(b) The Company shall, or shall cause the relevant Restricted
Subsidiary to, apply the Net Cash Proceeds from an Asset Sale within 360 days of
the receipt thereof to (A) permanently repay unsubordinated Indebtedness of the
Company or Indebtedness of any Restricted Subsidiary, in each case owing to a
Person other than the Company or any of its Restricted Subsidiaries, (B) invest
in Replacement Assets, or (C) in any combination of repayment, prepayment, and
reinvestment permitted by the foregoing clauses (A) and (B); provided, however
that the limitation set forth in this paragraph shall not apply to the issuance
or sale of capital stock of VersaTel Internet or a newly-formed parent or
subsidiary thereof organized under the laws of The Netherlands so long as (x)
immediately after giving effect to such issuances and sales, VersaTel Internet
is a Restricted Subsidiary and (y) the Net Cash Proceeds from such issuances and
sales are not used to make a Restricted
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53
Payment. Any Net Proceeds from the Asset Sale that are not invested as provided
and within the time period set forth in the first sentence of this Section
416(b) will be deemed to constitute "Excess Proceeds."
If at any time the aggregate amount of Excess Proceeds exceeds Euro
10.0 million, the Company shall, within 30 Business Days thereafter, make an
offer to all Holders of Notes (an "Asset Sale Offer") to purchase on a pro rata
basis the maximum principal amount of Notes, that is an integral multiple of
Euro 1,000, equal to the Proportionate Share of the Excess Proceeds at an offer
price equal to 100% of the outstanding principal amount thereof, plus accrued
and unpaid interest thereon, plus Additional Amounts, if any, and Liquidated
Damages, if any, to the date fixed for the closing of such offer (and, in the
case of Definitive Notes, subject to the right of a Holder of record on the
relevant record date to receive interest and Liquidated Damages, if any, due on
the relevant interest payment date and Additional Amounts, if any, in respect
thereof), in accordance with the procedures set forth in the Indenture. The
Company will commence an Asset Sale Offer with respect to Excess Proceeds within
thirty business days after the date that Excess Proceeds exceeds Euro 10.0
million by publishing or, where relevant, mailing the notice required pursuant
to the terms of the Indenture, with a copy to the Trustee. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, subject to applicable law, the Company may use any
remaining Excess Proceeds for general corporate purposes. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the selection of such Notes for purchase will be made by the
Trustee in the same manner as the Notes are redeemed, as provided in Article 3.
Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds
shall be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder and will
comply with the applicable laws of any non-U.S. jurisdiction in which an Asset
Sale Offer is made, in each case, to the extent such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to an Asset
Sale Offer. To the extent that the provisions of any securities laws or
regulations conflict with the provisions hereunder, the Company will comply with
the applicable securities laws and regulations and shall not be deemed to have
breached its obligations described in this Indenture by virtue thereof.
SECTION 4.17 Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries. (a) The Company shall not permit any Restricted
Subsidiary, directly or indirectly, to guarantee, assume or in any other manner
become liable with respect to any Indebtedness of the Company unless (i) such
Restricted Subsidiary simultaneously executes and delivers a supplemental
indenture to this Indenture providing for a Guarantee of all of the Company's
obligations under the Notes and this Indenture on terms substantially similar to
the guarantee of such Indebtedness, except that if such Indebtedness is by its
express terms subordinated in right of payment to the Notes, any such
assumption, Guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to such
Restricted Subsidiary's
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54
assumption, Guarantee or other liability with respect to the Notes substantially
to the same extent as such Indebtedness is subordinated to the Notes and (ii)
such Restricted Subsidiary waives, and will not in any manner whatsoever claim
or take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee; provided that any Restricted Subsidiary may guarantee Indebtedness of
the Company under a Credit Facility if such Indebtedness is Incurred in
accordance with Section 4.4.
(b) Notwithstanding the foregoing Section 4.17(a), any Guarantee of all
of the Company's obligations under the Notes and this Indenture by a Restricted
Subsidiary may provide by its terms that it will be automatically and
unconditionally released and discharged upon (i) any sale, exchange or transfer,
to any Person not an Affiliate of the Company, of all of the Company's and each
Restricted Subsidiary's Equity Interests in, or all or substantially all of the
assets of, such Restricted Subsidiary (which sale, exchange or transfer is not
prohibited by this Indenture) or (ii) the release or discharge of the guarantee
which resulted in the creation of such Guarantee, except a discharge or release
by or as a result of payment under such guarantee.
SECTION 4.18 [Intentionally Omitted]
SECTION 4.19 Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue, transfer, convey, sell,
lease or otherwise dispose of any shares of Capital Stock (including options,
warrants or other rights to purchase shares of such Capital Stock) of such
Restricted Subsidiary or any other Restricted Subsidiary to any Person (other
than (i) to the Company or a Wholly Owned Restricted Subsidiary, (ii) issuances
of director's qualifying shares, and (iii) as required by applicable law,
issuances or sales to foreign nationals of the jurisdiction in which a
Restricted Subsidiary is organized), unless (A) the Net Cash Proceeds from such
issuance, transfer, conveyance, sale, lease or other disposition are applied in
accordance with the provisions of Section 4.16 and (B) immediately after giving
effect to such issuance, transfer, conveyance, sale, lease or other disposition,
such Restricted Subsidiary either continues to be a Restricted Subsidiary or if
such Restricted Subsidiary would no longer constitute a Restricted Subsidiary,
then any Investment in such Person remaining after giving effect to such
issuance, transfer, conveyance, sale, lease or other disposition would have been
permitted to be made under Section 4.3 if made on the date of such issuance,
transfer, conveyance, sale, lease or other disposition (valued as provided in
the definition of "Investment" in Section 1.1). Notwithstanding the foregoing,
the Company may sell all of the Capital Stock of a Restricted Subsidiary in
compliance with the provisions of Section 4.16.
SECTION 4.20 Additional Amounts. At least 10 days prior to the first
date on which payment of principal, premium, if any, or interest on the Notes is
to be made, and at least 10 days prior to any subsequent such date if there has
been any change with respect
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55
to the matters set forth in the Officers' Certificate described in this Section
4.20, the Company will furnish the Trustee and the Paying Agent, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and the
Paying Agent whether such payment of principal, premium, if any, or interest on
the Notes (whether or not in the form of Definitive Notes) shall be made to the
Holders without withholding or deduction for, or on account of, any present or
future tax, duty, assessment or other governmental charges of whatever nature
(collectively "Taxes") imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law or the interpretation or
administration thereof. If any deduction or withholding for, or on account of,
any Taxes of any Relevant Taxing Jurisdiction, shall at any time be required on
any payments made by the Company with respect to the Notes, including payments
of principal, redemption price, interest or premium, then such Officers'
Certificate shall specify the amount, if any, required to be withheld on such
payments to such Holders and the Company will pay to the Trustee or the Paying
Agent the additional amounts pursuant to paragraph 3 of the Initial Notes and
paragraph 2 of the Exchange Notes, as applicable (the "Additional Amounts") and
upon request shall provide the Trustee with documentation satisfactory to the
Trustee evidencing the payment of such Additional Amounts. Copies of such
documentation shall be made available to the Holders upon request. The Company
shall indemnify the Trustee and the Paying Agent for, and hold them harmless
against, any loss, liability or expense Incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished to them pursuant
to this Section 4.20.
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges. The
Company will pay any present or future stamp, court or documentary taxes, or any
other excise or property taxes, charges or similar levies which arise in any
jurisdiction from the execution, delivery or registration of the Notes or any
other document or instrument referred to therein, or the receipt of any payments
with respect to the Notes, excluding any such taxes, charges or similar levies
imposed by any jurisdiction outside of The Netherlands, the United States of
America, or any jurisdiction in which a Paying Agent is located, other than
those resulting from, or required to be paid in connection with, the enforcement
of the Notes or any other such document or instrument following the occurrence
of any Event of Default with respect to the Notes.
ARTICLE V
Successor Company
SECTION 5.1 Consolidation, Merger, and Sale of Assets. The Company will
not consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially an
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56
entirety in one transaction or in a series of related transactions) to, any
Person or permit any Person to merge with or into the Company and the Company
will not permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in the sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company or the Company and its Restricted
Subsidiaries, taken as a whole, to any other Person or Persons, unless: (i) the
Company will be the continuing Person, or the Person (if other than the Company)
(the "Surviving Entity") formed by such consolidation or into which the Company
is merged or that acquired or leased such property and assets of the Company
will be a corporation organized and validly existing under the laws of The
Netherlands, Germany, France, Belgium, the United Kingdom or the United States
of America, any state thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all
of the obligations of the Company with respect to the Notes and under the
Indenture and the Registration Rights Agreement; (ii) immediately after giving
effect to such transaction, no Default or Event of Default shall have occurred
and be continuing; (iii) immediately after giving effect to such transaction on
a pro forma basis, the Company, or any Person becoming the successor obligor of
the Notes, as the case may be, would have an Indebtedness to Consolidated Cash
Flow Ratio no greater than such ratio immediately prior to such transaction if
the ratio immediately prior to the transaction is positive or greater than or
equal to such ratio if such ratio is negative; (iv) the Company delivers to the
Trustee an Officers' Certificate (attaching the arithmetic computations to
demonstrate compliance with clause (iii)) and an Opinion of Counsel, in each
case stating that such consolidation, merger or transfer and such supplemental
indenture complies with this Indenture.
SECTION 5.2 Successor Company Substituted. Upon any such consolidation,
merger, assignment, conveyance, lease, transfer or other disposition in
accordance with Section 5.1, the Successor Company will succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such Successor Company had been named
as the Company herein, and thereafter (except in the case of a sale, assignment,
transfer, lease, conveyance or other disposition) the predecessor corporation
will be relieved of all further obligations and covenants under this Indenture
and the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. Wherever used herein with respect to any
series of the Notes, "Event of Default" means any one of the following events
which shall have occurred and be continuing:
(a) default for 30 days or more in the payment when due of interest on
the Notes or Additional Amounts, if any, or Liquidated Damages, if any, with
respect to the Notes;
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57
(b) default in the payment of principal of (or premium, if any, on) any
Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise;
(c) default in the payment of principal or interest on Notes required
to be purchased pursuant to an Asset Sale Offer as described under Section 4.16
or pursuant to a Change of Control Offer as described under Section 4.15;
(d) failure to perform or comply with the provisions described in
Article V;
(e) default in the performance of or breach of any other covenant or
agreement of the Company in this Indenture or under the Notes and such default
or breach continues for a period of 30 consecutive days after written notice by
the Trustee or the holders of 25% or more in aggregate principal amount of the
Notes;
(f) a default occurs on any other Indebtedness of the Company or any
Restricted Subsidiary if either (x) such default is a failure to pay principal
of such Indebtedness when due after any applicable grace period and the
principal amount of such Indebtedness is in excess of Euro 10.0 million or (y)
as a result of such default, the maturity of such Indebtedness has been
accelerated prior to its scheduled maturity and such default has not been cured
within the shorter of (i) 60 days and (ii) the applicable grace period, and such
acceleration has not been rescinded, and the principal amount of such
Indebtedness together with the principal amount of any other Indebtedness of the
Company and its Restricted Subsidiaries that is in default as to principal, or
the maturity of which has been accelerated, aggregates Euro 10.0 million or
more;
(g) failure to pay final judgments and orders against the Company or
any Restricted Subsidiary (not covered by insurance) aggregating in excess of
Euro 10.0 million (treating any deductibles, self-insurance or retention as not
so covered), which final judgments remain unpaid, undischarged and unstayed for
a period in excess of 30 consecutive days following entry of the final judgment
or order that causes the aggregate amount for all such final judgments or orders
outstanding and not paid, discharged or stayed to exceed Euro 10.0 million;
(h) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, (B) appointment of a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any of its Significant Subsidiaries or for all or substantially
all of the property and assets of the Company or any of its Significant
Subsidiaries or (C) the winding up or liquidation of the affairs of the Company
or any of its Significant Subsidiaries and, in each case, such decree or order
shall remain unstayed and in effect for a period of 30 consecutive days; or
(i) the Company or any of its Significant Subsidiaries (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in
<PAGE>
effect, or consents to the entry of an order for relief in an involuntary case
under any such law, (B) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Subsidiaries or for all or
substantially all of the property and assets of the Company or any of its
Significant Subsidiaries or (C) effects any general assignment for the benefit
of creditors.
SECTION 6.2 Acceleration. If an Event of Default (other than an Event
of Default specified in Sections 6.1 (h) or (i)) occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes, then outstanding, by written notice to the Company, may declare the
principal of, premium, if any, interest and other monetary obligations
(including Additional Amounts, if any, and Liquidated Damages, if any) on all
the then outstanding Notes to be immediately due and payable. Upon such a
declaration, such principal of, premium, if any, accrued and unpaid interest and
other monetary obligations on the Notes shall be immediately due and payable. In
the event of a declaration of acceleration because an Event of Default set forth
in Section 6.1 (f) above has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to Section 6.1 (f) shall be
remedied or cured by the Company and/or the relevant Restricted Subsidiaries or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in Sections 6.1 (h) or (i) above occurs, the principal of, premium, if
any, accrued interest and other monetary obligations on the Notes then
outstanding shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
The Trustee shall have no obligation to accelerate the Notes if in the
best judgment of the Trustee acceleration is not in the best interest of the
Holders of such Notes.
SECTION 6.3 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or, premium, if any, interest,
Additional Amounts, if any, or Liquidated Damages, if any, on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
SECTION 6.4 The Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto.
SECTION 6.5 Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes in Section 2.8, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Notes is intended to be exclusive
of any other right or remedy, and every
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59
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 or
subsequent assertion or employment of any other appropriate right or remedy.
SECTION 6.6 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders of Notes
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders of Notes.
SECTION 6.7 Waiver of Past Defaults. Subject to Sections 6.10 and 9.2,
at any time after a declaration of acceleration with respect to the Notes as
described in Section 6.1, the Holders of at least a majority in principal amount
of the outstanding Notes by written notice to the Company and to the Trustee,
may waive all past defaults and rescind and annul a declaration of acceleration
and its consequences if (i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, interest and other monetary
obligations on the Notes that have become due solely by such declaration of
acceleration, have been cured or waived and (ii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. Such
waiver shall not excuse a continuing Event of Default in the payment of
interest, premium, if any, principal, Additional Amounts, if any, or Liquidated
Damages, if any, on such Note held by a non-consenting Holder, or in respect of
a covenant or a provision which cannot be amended or modified without the
consent of all Holders. In the event of any Event of Default specified in
Section 6.1(f) above, such Event of Default and all consequences thereof
(including, without limitation, any acceleration or resulting payment default)
shall be annulled, waived and rescinded, automatically and without any action by
the Trustee or the Holders of the Notes, if within 60 days after such Event of
Default arose (x) the Indebtedness or guarantee that is the basis for such Event
of Default has been discharged, or (y) the holders thereof have rescinded or
waived the acceleration, notice or action (as the case may be) giving rise to
such Event of Default, or (z) if the default that is the basis for such Event of
Default has been cured. The Company shall deliver to the Trustee an Officers'
Certificate stating that the requisite percentage of Holders have consented to
such waiver and attaching copies of such consents. When a Default or Event of
Default is waived, it is cured and ceases.
SECTION 6.8 Control by Majority. Subject to Section 2.11, the Holders
of not less than a majority in principal amount of the outstanding Notes may, by
written notice to the Trustee, 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 it. Subject to Section 7.1, however, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of another
Holder of Notes, or that may involve the Trustee in personal liability;
provided,
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60
however, that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 6.9 Limitation on Suits. A Holder of Notes may not pursue any
remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holder or Holders of at least 25% in principal amount of the
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability or
expense;
(iv) the Trustee does not comply with the request within 30 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(v) during such 30-day period the Holder or Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.10 Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, on a Note, on or after the respective due dates
expressed in such Note, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.11 Collection Suit by Trustee. If an Event of Default in
payment of principal, premium, if any, interest, Additional Amounts, if any, or
Liquidated Damages, if any, specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Notes for the
whole amount of principal and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such interest
is lawful, interest on overdue installments of interest, in each case at the
rate per annum borne by the Notes and 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, and any other amounts due the Trustee under Section 7.7.
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SECTION 6.12 Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, accountants and experts) and the Holders
allowed in any judicial proceedings relating to the Company, its creditors or
its property or other obligor on the Notes, its creditors and its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under Section 7.7. To the extent that the payment of any
such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.7
hereof out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall be paid out of, any
and all distributions, dividends, money, securities and other properties which
the Holders of the Notes may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
SECTION 6.13 Priorities. If the Trustee collects any money or property
pursuant to this Article VI, it shall pay out the money or property in the
following order:
First: to the Trustee, the Agents and their agents and attorneys for
amounts due under Section 7.7, including payment of all compensation,
expense and liabilities Incurred, and all advances made, by the Trustee and
the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal,
premium, if any, interest, Additional Amounts, if any, and Liquidated
Damages, if any, respectively; and
Third: to the Company.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Holders pursuant to this Section 6.13;
provided that the failure to give any such notice shall not affect the
establishment of such record date or payment date for Holders pursuant to this
Section 6.13.
SECTION 6.14 Restoration of Rights and Remedies. If the Trustee or any
Holder of any Note has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has ben discontinued or abandoned for
any reason, or has
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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 of Notes shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders of Notes shall continue as though no such proceeding had
been instituted.
SECTION 6.15 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.15 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.10, or a suit
by a Holder or Holders of more than 10% in principal amount of the outstanding
Notes.
SECTION 6.16 Compliance Certificate; Notices of Default. The Company is
required to deliver to the Trustee annually a statement, in the form of an
Officers' Certificate, regarding compliance with this Indenture, and the Company
is required, within five Business Days, upon becoming aware of any Default or
Event of Default or any default under any document, instrument or agreement
representing Indebtedness of the Company, to deliver to the Trustee a statement,
in the form of an Officers' Certificate, specifying such Default or Event of
Default.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee. (a) If an Event of Default actually
known to a Trust Officer of the Trustee has occurred (which has not been cured)
the Trustee shall be required in the exercise of its power, to use the degree of
care of a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs. Subject to such provisions, the Trustee will
be under no obligation to exercise any of its rights or powers under this
Indenture at the request of any of the Holders of Notes, unless they shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(b) Except during the continuance of an Event of Default actually known
to the Trustee:
(i) The Trustee and the Agents will perform only those duties as are
specifically set forth herein and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee or the
Agents.
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(ii) In the absence of bad faith on their part, the Trustee and the
Agents may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
and such other documents delivered to them pursuant to Section 11.4 hereof
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which
by any provision hereof are required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture (but need not confirm
or investigate the accuracy of any mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of subsection (b) of this
Section 7.1.
(ii) Neither the Trustee nor Agent shall be liable for any error of
judgment made in good faith by a Trust Officer of such Trustee or Agent,
unless it is proved that the Trustee or such Agent was negligent in
ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.8.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise Incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it or it does not receive an indemnity satisfactory to it in
its sole discretion against such risk, liability, loss, fee or expense which
might be Incurred by it in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to subsections
(a), (b), (c) and (d) of this Section 7.1.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Any provision hereof relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.1 and, upon qualification of this Indenture under
the TIA, the TIA.
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SECTION 7.2 Rights of Trustee. Subject to Section 7.1:
(a) The Trustee and each Agent may rely conclusively on and shall be
protected from acting or refraining from acting based upon any document
believed by them to be genuine and to have been signed or presented by the
proper person. Neither the Trustee nor any Agent shall be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent order, approval, appraisal, bond, debenture, note, coupon, security
or other paper or document, but the Trustee or its Agent, as the case may
be, in its discretion, may make reasonable further inquiry or investigation
into such facts or matters stated in such document and if the Trustee or its
Agent as the case may be, shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, at reasonable times during normal business hours,
personally or by agent or attorney at the expense of the Company and shall
Incur no liability or additional liability of any kind by reason of such
inquiry or investigation. The Trustee shall not be deemed to have notice or
any knowledge of any matter (including without limitation Defaults or Events
of Default) unless a Trust Officer assigned to and working in the Trustee's
Corporate Trust Administration has actual knowledge thereof or unless
written notice thereof is received by the Trustee, attention: Corporate
Trust Administration and such notice references the Notes generally, the
Company or this Indenture;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or
Company Order and any resolution of the Board of Directors of the Company,
as the case may be, may be sufficiently evidenced by a Board Resolution;
(c) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both, which shall conform
to the provisions of Sections 11.4 and 11.5. Neither the Trustee nor any
Agent shall be liable for any action it takes or omits to take in good faith
in reliance on such certificate or opinion.
(d) The Trustee and any Agent may act through their attorneys and
agents and shall not be responsible for the misconduct or negligence of any
agent (other than an agent who is an employee of the Trustee or such Agent)
appointed with due care.
(e) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers conferred upon it by this Indenture; provided, however,
that the Trustee's conduct does not constitute willful misconduct,
negligence or bad faith.
(f) The Trustee or any Agent may consult with counsel of its selection
and the advice or opinion of such counsel as to matters of law shall be full
and complete authorization and protection from liability in respect of any
action taken, omitted or
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suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(g) Subject to Section 9.2 hereof, the Trustee may (but shall not be
obligated to), without the consent of the Holders, give any consent, waiver
or approval required by the terms hereof, but shall not without the consent
of the Holders of not less than a majority in aggregate principal amount of
the Notes at the time outstanding (i) give any consent, waiver or approval
or (ii) agree to any amendment or modification of this Indenture, in each
case, that shall have a material adverse effect on the interests of any
Holder. The Trustee shall be entitled to request and conclusively rely on an
Opinion of Counsel with respect to whether any consent, waiver, approval,
amendment or modification shall have a material adverse effect on the
interests of any Holder.
SECTION 7.3 Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Notes and may otherwise
deal with the Company, its Subsidiaries, or their respective Affiliates with the
same rights it would have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict within
90 days, apply to the SEC for permission to continue as trustee or resign. Any
Agent may do the same with like rights. The Trustee must comply with Sections
7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer. The Trustee and the Agents shall not
be responsible for and make no representation as to the validity, effectiveness
or adequacy of this Indenture or the Notes; it shall not be accountable for the
Company's use of the proceeds from the Notes or any money paid to the Company or
upon the Company or upon the Company's direction under any provision hereof; it
shall not be responsible for the use or application of any money received by any
Paying Agent other than the Trustee and it shall not be responsible for any
statement or recital herein of the Company, or any document issued in connection
with the sale of Notes or any statement in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.5 Notice of Default. If an Event of Default occurs and is
continuing and a Trust Officer of the Trustee receives actual notice of such
event, the Trustee shall mail to each Holder, as their names and addresses
appear on the list of Holders described in Section 2.5, notice of the uncured
Default or Event of Default within 30 days after the Trustee receives such
notice. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest, Additional Amounts, if any, or
Liquidated Damages, if any, on any Note, including the failure to make payment
on (i) the Change of Control Payment Date pursuant to a Change of Control Offer
or (ii) the Asset Sale Purchase Date pursuant to an Asset Sale Offer, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the interest
of the Holders.
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SECTION 7.6 Report by Trustee to Holders. This Section 7.6 shall not be
operative as a part of this Indenture until this Indenture is qualified under
the TIA, and, until such qualification, this Indenture shall be construed as if
this Section 7.6 were not contained herein.
Within 60 days after each March 30 beginning with March 30, 2001, the
Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b), 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each securities exchange, if
any, on which the Notes are listed.
The Company shall promptly notify the Trustee if subsequent to the date
hereof the Notes become listed on any securities exchange or of any delisting
thereof.
SECTION 7.7 Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation as the Company and the Trustee shall
from time to time agree in writing for its acceptance of this Indenture and
services hereunder. The Trustee's and the Agents' compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee upon request for all reasonable disbursements,
expenses and advances (including reasonable fees and expenses of counsel)
Incurred or made by it in addition to the compensation for their services,
except any such disbursements, expenses and advances as may be attributable to
the Trustee's or any Agent's own negligence or willful misconduct. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's and Agents' accountants, experts and counsel and any taxes or other
expenses Incurred by a trust created pursuant to Section 8.4 hereof.
The Company shall indemnify each of the Trustee, any predecessor
Trustee and the Agents for, and hold them harmless against, any and all loss,
damage, claim, expense or liability including taxes (other than taxes based on
the income of the Trustee) Incurred by the Trustee or an Agent without
negligence or willful misconduct on its part in connection with acceptance of
administration of this trust and its duties under this Indenture, including the
reasonable expenses and attorneys' fees and expenses of defending itself against
any claim of liability arising hereunder. The Trustee and the Agents shall
notify the Company promptly of any claim asserted against the Trustee or such
Agent for which it may seek indemnity. However, the failure by the Trustee or
the Agent to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee or
such Agent shall cooperate in the defense (and may employ its own counsel
reasonably satisfactory to the Trustee) at the Company's expense. The Trustee or
such Agent may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its
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written consent, which consent shall not be unreasonably withheld. The Company
need not reimburse any expense or indemnify against any loss or liability
Incurred by the Trustee or such Agent as a result of the violation of this
Indenture by the Trustee or such Agent if such violation arose from the
Trustee's or such Agent's negligence or bad faith.
To secure the Company's payment obligations in this Section 7.7, the
Trustee and the Agents shall have a senior Lien prior to the Notes against all
money or property held or collected by the Trustee and the Agents, in its
capacity as Trustee or Agent, except money or property held in trust to pay
principal or premium, if any, or interest on particular Notes.
When the Trustee or an Agent Incurs expenses or renders services after
an Event of Default specified in Section 6.1(h) or Section 6.1(i) occurs, the
expenses (including the reasonable fees and expenses of its agents and counsel)
and the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.7 and any claim arising hereunder shall survive the
termination of this Indenture, the resignation or removal of any Trustee or
Agent, the discharge of the Company's obligations pursuant to Article VIII and
any rejection or termination under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee. The Trustee may resign at any time
by so notifying the Company in writing. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by so notifying the
Company and the Trustee in writing and may appoint a successor trustee with the
Company's consent. A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this section. The Company may remove
the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a receiver or other public officer takes charge of the Trustee or
its property; or
(iv) the Trustee becomes incapable of acting with respect to its duties
hereunder.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the then outstanding Notes may, with the Company's consent, appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.7, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Notes may
petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee after written request by any Holder who has been a
Holder for at least six months fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee and the Company shall pay to any replaced or removed
Trustee all amounts owed under Section 7.7 upon such replacement or removal.
SECTION 7.9 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Notes shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by consolidation, merger or conversion to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
SECTION 7.10 Corporate Trustee Required; Eligibility. There shall be at
all times a Trustee hereunder which shall be eligible to act as Trustee under
the TIA and shall have a combined capital and surplus of at least
U.S.$50,000,000 and have its Corporate Trust Office in the Borough of Manhattan,
The City of New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal, State or District
of Columbia supervising or examining authority within the United States of
America, then for the purposes of this Section, the combined capital and surplus
of such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
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SECTION 7.11 Disqualification; Conflicting Interests. If the Trustee
has or shall acquire a conflicting interest within the meaning of the TIA, the
Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA and this
Indenture.
SECTION 7.12 Preferential Collection of Claims Against Company. The
Trustee, in its capacity as Trustee hereunder, shall comply with TIA Section
311(a), excluding any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Option To Effect Legal Defeasance or Covenant Defeasance.
The Company may, at the option of its Board of Directors evidenced by a
resolution set forth in an Officers' Certificate, at any time, with respect to
the Notes, elect to have either Section 8.2 or 8.3 be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article VIII.
SECTION 8.2 Legal Defeasance and Discharge. Upon the Company's exercise
under Section 8.1 of the option applicable to this Section 8.2, the Company
shall be deemed to have been discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Company shall be deemed to have paid and discharged all the Obligations
relating to the outstanding Notes and the Notes shall thereafter be deemed to be
"outstanding" only for the purposes of Section 8.6, Section 8.8 and the other
Sections of this Indenture referred to below in this Section 8.2, and to have
satisfied all of their other obligations under such Notes and this Indenture and
cured all then existing Events of Default (and the Trustee, on demand of and 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 Notes to
receive payments in respect of the principal of, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, on such Notes when
such payments are due or on the Redemption Date solely out of the trust created
pursuant to this Indenture; (b) the Company's obligations with respect to Notes
concerning issuing temporary Notes, or, where relevant, registration of such
Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an
office or agency for payment and money for security payments held in trust; (c)
the rights, powers, trusts, duties and immunities of the Trustee, and the
Company's obligations in connection therewith; and (d) this Article VIII and the
obligations set forth in Section 8.6 hereof.
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Subject to compliance with this Article VIII, the Company may exercise
its option under Section 8.2 notwithstanding the prior exercise of its option
under Section 8.3 with respect to the Notes.
SECTION 8.3 Covenant Defeasance. Upon the Company's exercise under
Section 8.1 of the option applicable to this Section 8.3, the Company shall be
released from any obligations under the covenants contained in Sections 4.3,
4.4, 4.10, 4.12, 4.13, 4.14, 4.15, and 4.16 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or Event of Default under Section 6.1(e), nor shall any event referred to in
Sections 6.1(f) or (g) thereafter constitute a Default or Event of Default, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.
SECTION 8.4 Conditions to Legal or Covenant Defeasance. The following
shall be the conditions to the application of either Section 8.2 or Section 8.3
to the outstanding Notes:
(i) the Company must irrevocably deposit, or cause to be irrevocably
deposited, with the Trustee, in trust, for the benefit of the Holders of the
Notes, cash in U.S. dollars, euros, Government Securities or a combination
thereof in such amounts as will be sufficient, in the opinion of an
internationally recognized firm of independent public accountants, to pay
the principal of, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, due on the outstanding Notes on the stated
maturity date or on the applicable Redemption Date, as the case may be, of
such principal, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, due on the outstanding Notes;
(ii) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee (A) an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that, subject to customary assumptions
and exclusions, (1) the Company has received from, or there has been
published by, the U.S. Internal Revenue Service a ruling or (2) since the
Issue Date, 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
of Counsel in the United States shall confirm that, subject to customary
assumptions and exclusions, the Holders of the outstanding Notes will
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not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such Legal 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 Legal Defeasance had not occurred and (B) an
Opinion of Counsel in The Netherlands reasonably acceptable to the Trustee
to the effect that (1) Holders will not recognize income, gain or loss for
Netherlands income tax purposes as a result of such Legal Defeasance and
will be subject to Netherlands income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred and (2) payments from the defeasance trust will
be free and exempt from any and all withholding and other income taxes of
whatever nature imposed or levied by or on behalf of The Netherlands or any
political subdivision thereof or therein having the power to tax;
(iii) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee (A) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to customary
assumptions and exclusions, the Holders of the outstanding Notes 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 such 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 and (B) an Opinion of
Counsel in The Netherlands reasonably acceptable to the Trustee to the
effect that (1) Holders will not recognize income, gain or loss for
Netherlands income tax purposes as a result of such Covenant Defeasance and
will be subject to Netherlands 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 and (2) payments from the defeasance trust will
be free and exempt from any and all withholding and other income taxes of
whatever nature imposed or levied by or on behalf of The Netherlands or any
political subdivision thereof or therein having the power to tax;
(iv) no Default or Event of Default shall have occurred and be
continuing with respect to certain Events of Default on the date of such
deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under any material agreement
or instrument to which the Company is a party or by which the Company is
bound;
(vi) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that, as of the date of such opinion and subject to
customary assumptions and exclusions following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally under
any applicable Netherlands and U.S. federal or state law, and that the
Trustee has a perfected security interest in such trust funds for the
ratable benefit of the Holders;
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72
(vii) 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 defeating, hindering, delaying or defrauding any creditors of the
Company or others; and
(viii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel (which opinion of counsel may be
subject to customary assumptions and exclusions) each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance, as the case may be, have been complied with.
SECTION 8.5 Satisfaction and Discharge of Indenture. This Indenture
will be discharged and will cease to be of further effect as to all Notes issued
thereunder when either (i) all such Notes theretofore authenticated and
delivered (except lost, stolen or destroyed Notes which have been replaced or
paid and Notes for whose payment money has theretofore been deposited in trust
and thereafter repaid to the Company) have been delivered to the Trustee for
cancellation; or (ii) (A) all such Notes not theretofore delivered to such
Trustee for cancellation have become due and payable by reason of the making of
a notice of redemption or otherwise or will become due and payable within one
year and the Company has irrevocably deposited or caused to be deposited with
such Trustee as trust funds in trust an amount of money sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation for principal, premium, if any, and accrued and unpaid
interest, Additional Amounts, if any, and Liquidated Damages, if any, to the
date of maturity or redemption; (B) no Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company is a party or by which it is bound; (C) the Company has paid,
or caused to be paid, all sums payable by it under this Indenture; and (D) the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of such Notes at
maturity or the Redemption Date, as the case may be. In addition, the Company
must deliver an Officers' Certificate and an Opinion of Counsel to the Trustee
stating that all conditions precedent to satisfaction and discharge have been
satisfied.
SECTION 8.6 Survival of Certain Obligations. Notwithstanding the
satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Company and
the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10, 2.11, 2.12, 2.13,
2.14, 4.1, 4.2, 4.5, 4.21, 6.10, Article VII, 8.7, 8.8, 8.9 and 8.10 shall
survive until the Notes are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 7.7, 8.7, 8.8, 8.9 and
8.10 shall survive. Nothing contained in this Article VIII shall abrogate any of
the obligations or duties of the Trustee under this Indenture.
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73
SECTION 8.7 Acknowledgement of Discharge by Trustee. Subject to Section
8.10, after (i) the conditions of Section 8.4 or 8.5 have been satisfied, (ii)
the Company has paid or caused to be paid all other sums payable hereunder by
the Company and (iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent referred to in clause (i) above relating to the satisfaction and
discharge of this Indenture have been complied with, the Trustee upon written
request shall acknowledge in writing the discharge of all of the Company's
obligations under this Indenture except for those surviving obligations
specified in this Article VIII.
SECTION 8.8 Application of Trust Moneys. All cash in U.S. dollars and
Government Securities deposited with the Trustee pursuant to Section 8.4 or 8.5
in respect of Notes shall be held in trust and applied by it, in accordance with
the provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent as the Trustee may determine, to the Holders of the
Notes of all sums due and to become due thereon for principal, premium, if any,
interest, Additional Amounts, if any, and Liquidated Damages, if any, 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 against any tax, fee or
other charge imposed on or assessed against the Government Securities deposited
pursuant to Section 8.4 or 8.5 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 outstanding Notes.
SECTION 8.9 Repayment to the Company; Unclaimed Money. The Trustee and
any Paying Agent shall promptly pay or return to the Company upon Company Order
any cash or Government Securities held by them at any time that are not required
for the payment of the principal of, premium, if any, interest, Additional
Amounts, if any, and Liquidated Damages, if any, on the Notes for which cash or
Government Securities have been deposited pursuant to Section 8.4 or 8.5.
Any money held by the Trustee or any Paying Agent under this Article,
in trust for the payment of the principal of, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, on any Note and
remaining unclaimed for two years after such principal, premium, if any,
interest, Additional Amounts, if any, and Liquidated Damages, if any, has become
due and payable shall be paid to the Company upon Company Order or if then held
by the Company shall be discharged from such trust; and the Holder of such Note
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, 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 give notice to the Holders or cause to be
published notice once, in a leading newspaper having a general circulation in
New York (which is expected to be The Wall Street Journal) and in Amsterdam
(which is expected to be Het Financieele Dagblad and in
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73
the Official Price List of the AEX for so long as the Notes are listed on the
AEX and the rules of the AEX so require) or in the case of Definitive Notes,
mail to Holders by first-class mail, postage prepaid, at their respective
addresses as they appear on the registration books of the Registrar, 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 notification, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 8.10 Reinstatement. If the Trustee or Paying Agent is unable to
apply any cash or Government Securities, as applicable, in accordance with
Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as
the Trustee or Paying Agent is permitted to apply all such cash or Government
Securities in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however,
that if the Company has made any payment of interest on, premium, if any,
principal, Additional Amounts, if any, and Liquidated Damages, if any, of any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities, as applicable, held by the Trustee or
Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders of Notes. Notwithstanding
Section 9.2 hereof, the Company and the Trustee together may amend or supplement
this Indenture or the Notes without the consent of any Holder of a Note (i) to
cure any ambiguity, omission, defect or inconsistency, (ii) to provide for
uncertificated Notes in addition to or in place of certificated Notes, (iii) to
provide for the assumption of the Company obligations to Holders of such Notes
in order to comply with Article V, (iv) to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under this Indenture of any such Holder un the
good faith judgement of the Board of Directors, (v) to add covenants for the
benefit of the Holders or to surrender any right or power conferred upon the
Company, (vi) to comply with requirements of the Commission in order to effect
or maintain the qualification of the Indenture under the Trust Indenture Act, or
(vii) to provide for the issuance of the Exchange Notes. The consent of the
Holders is not necessary under the Indenture to approve the particular form of
any proposed amendment. It is sufficient if such consent approves the substance
of the proposed amendment.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon receipt
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75
by the Trustee of the documents described in Section 9.6, the Trustee shall join
with the Company in the execution of any amended or supplemental indenture
authorized or permitted by the terms of this Indenture and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into such amended or supplemental
indenture which adversely affects its own rights, duties or immunities hereunder
or otherwise.
SECTION 9.2 With Consent of Holders of Notes. The Company and the
Trustee may amend or supplement this Indenture or the Notes or any amended or
supplemental indenture with the written consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes), and
any existing Default or Event of Default and its consequences or compliance with
any provision of this Indenture or the Notes may be waived with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for the Notes). However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to any Notes held by a
non-consenting Holder of Notes): (i) reduce the principal amount of the Notes
whose Holders must consent to an amendment, supplement or waiver, (ii) reduce
the principal of or change the fixed maturity of any such Note or alter or waive
the provisions with respect to the redemption of the Notes with respect to the
timing or amount of payment thereof, (iii) reduce the rate of or change the time
for payment of interest, on any Note, (iv) waive a Default in the payment of
principal of, premium, if any, interest, Additional Amounts, if any, or
Liquidated Damages, if any, on the Notes (except a rescission of acceleration of
the Notes by the Holders of at least a majority in aggregate principal amount of
either series of such Notes and a waiver of the payment default that resulted
from the acceleration with respect to such series of Notes) or in respect of a
covenant or provision contained in this Indenture which cannot be amended or
modified without the consent of all Holders, (v) make any Note payable in money
other than that stated in the Notes, (vi) make any change in the provisions of
this Indenture relating to waivers of past Defaults or the rights of Holders of
the Notes to receive payments of principal, premium, if any, interest,
Additional Amounts, if any, or Liquidated Damages, if any, on such Notes, (vii)
make any change in the amendment and waiver provisions contained in this
Indenture, (viii) make any change in paragraph 3 of the Initial Notes or
paragraph 2 of the Exchange Notes that adversely affects the rights of any
Holder of the Notes, (ix) amend the terms of the Notes or this Indenture in a
way that would result in the loss of an exemption from any of the Taxes
described thereunder or an exemption from any obligation to withhold or deduct
Taxes as described thereunder unless the Company agrees to pay Additional
Amounts, if any, in respect thereof or (x) impair the right of any Holder of the
Notes to receive payment of principal of, interest, Liquidated Damages, if any,
on such Holder's Notes on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holder's Notes.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such amended or supplemental indenture, and
upon the
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76
filing with the Trustee of evidence satisfactory to the Trustee of the consent
of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the
documents described in Section 9.6, the Trustee shall join with the Company in
the execution of such amended or supplemental indenture unless such amended or
supplemental indenture adversely affects the Trustee's own rights, duties or
immunities hereunder or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.2 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
SECTION 9.3 Compliance with TIA. From the date on which this Indenture
is qualified under the TIA, every amendment, waiver or supplement of this
Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a Note is
a continuing consent by the Holder of a Note and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder of a Note or subsequent Holder of a Note may revoke the consent
as to its Note if the Trustee receives written notice of revocation before the
date the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder of a Note.
The Company may fix a record date for determining which Holders of the
Notes must consent to such amendment, supplement or waiver. If the Company fixes
a record date, the record date shall be fixed at (i) the later of 30 days prior
to the first solicitation of such consent or the date of the most recent list of
Holders of Notes furnished to the Trustee prior to such solicitation pursuant to
Section 2.5 or (ii) such other date as the Company shall designate.
SECTION 9.5 Notation on or Exchange of Notes. The Trustee may place an
appropriate notation about an amendment, supplement or waiver on any Note
thereafter authenticated. The Company in exchange for all Notes may issue and
the Trustee shall authenticate new Notes that reflect the amendment, supplement
or waiver.
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77
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.6 Trustee To Sign Amendments, Etc. The Trustee shall execute
any amendment, supplement or waiver authorized pursuant to this Article IX;
provided, however, that the Trustee may, but shall not be obligated to, execute
any such amendment, supplement or waiver which adversely affects the Trustee's
own rights, duties or immunities under this Indenture. The Trustee shall be
entitled to receive indemnity reasonably satisfactory to it, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article IX is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion of Counsel shall
not be an expense of the Trustee.
ARTICLE X
[INTENTIONALLY OMITTED]
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 TIA Controls. If any provision of this Indenture limits,
qualifies, or conflicts with the duties imposed by operation of Section 3.18(c)
of the TIA, the imposed duties shall control.
SECTION 11.2 Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telecopier or first-class mail, postage prepaid, addressed
as follows:
if to the Company:
VersaTel Telecom International N.V.
Paalbergweg 36
1105 BV Amsterdam-Z.O.
The Netherlands
Facsimile No: 31-20-501-10-11
Attention: Raj Raithatha
<PAGE>
78
with a copy to:
Shearman & Sterling
Broadgate West
9 Appold Street
London EC2A 2AP
Facsimile No: 44-20-7655-550
Attention: David Beveridge, Esq.
if to the Trustee:
The Bank of New York
Registrar or Paying Agent
One Canada Square
London E14 5AL
Attention: Corporate Trust Administration
Facsimile: (212) 815-6339
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company and the Trustee, shall be
deemed to have been given or made as of the date so delivered if personally
delivered; when receipt is acknowledged, if telecopied; and five (5) calendar
days after mailing if sent by first class mail, postage prepaid (except that a
notice of change of address and a Notice to the Trustee shall not be deemed to
have been given until actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed to such
Person by first-class mail or other equivalent means at such Person's address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not the addressee receives it.
Notices regarding the Notes will be (i) published in a leading
newspaper having a general circulation in New York (which is expected to be The
Wall Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad and in the Official Price List of the AEX for so long as the Notes are
listed on the AEX and the rules of the AEX so require) or (ii) in the case of
Definitive Notes, mailed to Holders by first-class mail at their respective
addresses as they appear on the registration books of the Registrar. Notices
given by publication will be deemed given on the first date on which publication
is made and notices given by first-class mail, postage prepaid, will be deemed
given five calendar days after mailing. In addition, the Company undertakes to
comply with the provisions set forth
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79
in Article 2.1.20 of Schedule B of the Rules and Regulations
("Fondsenreglement") of the AEX as in force on March 24, 2000.
SECTION 11.3 Communications by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee or an Agent to take any
action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.5), stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to
the proposed action have been satisfied or complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee or such Agent (which shall include the statements set forth
in Section 11.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied or complied with.
SECTION 11.5 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, such Person has
made such examination or investigation as is necessary to enable such Person
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 or not, in the opinion of each such
Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public officials.
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80
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar. The Trustee,
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 11.7 Legal Holidays. If a payment date is not a Business Day,
payment may be made on the next succeeding day that is a Business Day, and no
interest shall accrue for the intervening period.
SECTION 11.8 Governing Law. This Indenture and the Notes shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York.
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent for
Service; Waiver. To the fullest extent permitted by applicable law, the Company
irrevocably submits to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in The City of New York, County and State of
New York, United States of America, in any suit or proceeding based on or
arising under this Indenture and the Notes, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation System (the "Authorized Agent"), as its authorized agent
upon whom process may be served in any such suit or proceeding. The Company
represents that it has notified the Authorized Agent of such designation and
appointment and that the Authorized Agent has accepted the same in writing. The
Company hereby irrevocably authorizes and directs its Authorized Agent to accept
such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any person to serve process
in any other manner permitted by law. The Company agrees that a final action in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company arising out of or
based on this Indenture, the Notes or the transactions contemplated hereby may
also be instituted in any competent court in The Netherlands, and the Company
expressly accepts the jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted by law,
any immunity to jurisdiction to which it may otherwise be entitled (including,
without limitation, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Indenture, the Notes or the transactions
contemplated hereby.
The provisions of this Section 11.9 are intended to be effective upon
the execution of this Indenture and the Notes without any further action by the
Company or the
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81
Trustee and the introduction of a true copy of this Indenture into evidence
shall be conclusive and final evidence as to such matters.
SECTION 11.10 No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of any of the Company or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.11 No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators. No director, officer, employee, incorporator or
stockholder of the Company shall have any liability for any obligations of the
Company under the Notes or this Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each Holder of the Notes
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
SECTION 11.12 Currency Indemnity. Euros are the sole currency of
account and payment for all sums payable by the Company under or in connection
with the Notes, including damages. Any amount received or recovered in a
currency other than euros (whether as a result of, or the enforcement of, a
judgment or order of a court of any jurisdiction, in the winding-up or
dissolution of the Company or otherwise) by any Holder of a Note in respect of
any sum expressed to be due to it from the Company shall only constitute a
discharge to the Company to the extent of the euro amount which the recipient is
able to purchase with the amount so received or recovered in that other currency
on the date of that receipt or recovery (or, if it is not practicable to make
that purchase on that date, on the first date on which it is practicable to do
so). If that euro amount is less than the euro amount expressed to be due to the
recipient under any Note, the Company shall indemnify it against any loss
sustained by it as a result. If the euro amount is greater than the euro amount
expressed to be due to the recipient under this Agreement, the Company shall be
entitled to the amount of such excess. In any event, the Company shall indemnify
the recipient against the cost of making any such purchase. For the purposes of
this subsection, it will be sufficient for the Trustee or any Holder of a Note
to certify in a satisfactory manner (indicating the sources of information used)
that it would have suffered a loss had an actual purchase of euros been made
with the amount so received in that other currency on the date of receipt or
recovery (or, if a purchase of dollars on such date had not been practicable, on
the first date on which it would have been practicable, it being required that
the need for a change of date be certified in the manner mentioned above). These
indemnities constitute a separate and independent obligation from the Company's
other obligations, shall give rise to a separate and independent cause of
action, shall apply irrespective of any indulgence granted by the Trustee or any
Holder of a Note and shall continue in full force and effect despite any other
judgment, order, claim or proof for a liquidated amount in respect of any sum
due under any Note.
SECTION 11.13 Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors. All agreements of the Trustee
in this Indenture shall bind its successor.
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82
SECTION 11.14 Counterpart Originals. All parties hereto may sign any
number of copies of this Indenture. Each signed copy or counterpart shall be an
original, but all of them together shall represent one and the same agreement.
SECTION 11.15 Severability. In case any one or more of the provisions
in this Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 11.16 Table of Contents, Headings, etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, as of the date first written above.
VERSATEL TELECOM INTERNATIONAL N.V.
By /s/ R. Gary Mesch
--------------------------------------
Name: R. Gary Mesch
Title: Managing Director
THE BANK OF NEW YORK, as Trustee,
Registrar and Paying Agent,
By /s/ Trevor Blewer
--------------------------------------
Name: Trevor Blewer
Title: Assistant Vice President
<PAGE>
EXHIBIT A
TO THE INDENTURE
[FORM OF FACE OF INITIAL GLOBAL NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE 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. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(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 OF 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, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS 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 "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE
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<PAGE>
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE, 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 MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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<PAGE>
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
CUSIP NO.:[ ]
[If Regulation S Security - CINS Number _________]
No.____ Euro____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any Successor Company), for value received promises to pay Cede & Co.
or registered assigns upon surrender hereof the principal sum indicated on
Schedule A hereof, on March 30, 2010.
Interest Payment Dates: March 30 and September 30, commencing
September 30, 2000
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
VERSATEL TELECOM INTERNATIONAL N.V.,
by
-------------------------------
Name: R. Gary Mesch
Title: Managing Director
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK, as Trustee,
by
-------------------------------
Name:
Title:
Dated:
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<PAGE>
[FORM OF REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 11 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 30 and September 30, or if any such day is not a Business Day on the
next succeeding Business Day, commencing September 30, 2000, to the Holder
hereof. Notwithstanding any exchange of this Note for a Definitive Note during
the period starting on a Record Date relating to such Definitive Note and ending
on the immediately succeeding Interest Payment Date, the interest due on such
Interest Payment Date shall be payable to the Person in whose name this Global
Note is registered at the close of business on the Record Date for such
interest. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 30, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Liquidated Damages. Pursuant to the Registration Rights
Agreement between the Company and the Placement Agents on behalf of Holders of
the Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 11 1/4% Senior Notes due
2010 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full.
3. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any
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<PAGE>
payments made by the Company with respect to the Notes, including payments of
principal, redemption price, interest or premium, the Company will pay such
additional amounts (the "Additional Amounts") as may be necessary in order that
the net amounts received in respect of such payments by the Holders of the Notes
or the Trustee, as the case may be, after such withholding or deduction, equal
the respective amounts which would have been received in respect of such
payments in the absence of such withholding or deduction; except that no such
Additional Amounts will be payable with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect
thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
4. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Person in whose name this Note is
registered at the close of business on the Record Date for such interest.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in euros. Immediately available
funds for the payment of the principal of (and premium, if any), interest,
Additional Amounts, if any, and Liquidated Damages, if any, on this Note due on
any Interest Payment Date, Maturity Date, Redemption Date or other repurchase
date will be made available to the Paying Agent to permit the Paying Agent to
pay such funds to the Holders on such respective dates.
5. Paying Agent and Registrar. Initially, The Bank of New York
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or
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<PAGE>
co-Registrar without notice to the Holders. The Company or any of its
Subsidiaries may, subject to certain exceptions, act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture,
dated as of March 30, 2000 (the "Indenture"), between the Company and The Bank
of New York (the "Trustee"). This Note is one of a duly authorized issue of
Initial Notes of the Company designated as its 11 1/4% Senior Notes due 2010
(the "Initial Notes"). The Notes include the Initial Notes and the Exchange
Notes issued in exchange for the Initial Notes pursuant to the Indenture. The
terms of the Notes 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
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture
until such time as the Indenture is qualified under the TIA, and thereafter as
in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are not secured by any of the assets of the
Company. The Notes are limited in aggregate principal amount to Euro 400,000,000
subject to the terms of the Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
7. Ranking. The Notes will be general unsecured obligations of
the Company and will rank senior in right of payment to all future indebtedness
of the Company that is, by its terms or by the terms of the agreement or
instrument governing such indebtedness, expressly subordinated in right of
payment to the Notes and pari passu in right of payment with all existing and
future senior indebtedness of the Company.
8. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 30, 2005 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad and in the Official Price List of the AEX for so long as the Notes are
listed on the AEX and the rules of the AEX so require) or, in the case of
Definitive Notes, mailed by first-class mail to each Holder's registered
address, at the redemption prices (expressed as a percentage of principal
amount) set forth below, plus accrued and unpaid interest, Additional Amounts,
if any, and Liquidated Damages, if any, to the applicable Redemption Date (and
in the case of Definitive Notes, subject to the right of Holders of record on
the relevant record date to receive interest and Additional Amounts, if any, and
Liquidated Damages, if any, due on the relevant interest payment date in respect
thereof), if redeemed during the twelve-month period beginning on March 30 of
each of the years indicated below:
Redemption
Year Price
---- -----
2003.............................................................. 105.625%
2004.............................................................. 103.750%
2005.............................................................. 101.875%
2006 and thereafter............................................... 100.000%
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<PAGE>
In addition, at any time on or prior to March 30, 2003, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 111 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, with the Net Cash
Proceeds (as defined in the Indenture) of one or more Equity Offerings (as
defined in the Indenture) received by, or invested in, the Company; provided
that, in each case, at least 65% of the aggregate original principal amount of
the Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that notice of any such redemption must be
given within 60 days of the date of the closing of any such Equity Offering.
9. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date fixed by the Company for redemption (a "Tax Redemption Date"), and, all
Additional Amounts, if any, then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise, if the Company
determines that, as a result of (i) any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of The
Netherlands (or any political subdivision or taxing authority of The
Netherlands) or any other Relevant Taxing Jurisdiction affecting taxation which
becomes effective on or after the Issue Date, or (ii) any change in position
regarding the application, administration or any new or different interpretation
of such laws, treaties, regulations or rulings (including a holding, judgment or
order by a court of competent jurisdiction), which change, amendment,
application or interpretation becomes effective on or after the Issue Date, the
Company is, or on the next Interest Payment Date would be, required to pay
Additional Amounts, and the Company determines that such payment obligation
cannot be avoided by the Company taking reasonable measures. Notwithstanding the
foregoing, no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obligated to make such
payment or withholding if a payment in respect of the Notes were then due. Prior
to the publication or, where relevant, mailing of any notice of redemption of
the Notes pursuant to the foregoing, the Company will deliver to the Trustee an
opinion of an independent tax counsel of recognized standing to the effect that
the circumstances referred to above exist. The Trustee shall accept such opinion
as sufficient evidence of the satisfaction of the conditions precedent described
above, in which event it shall be conclusive and binding on the Holders.
10. Notice of Redemption. Notice of redemption will be given
at least 30 days but not more than 60 days before the Redemption Date by
publishing in a leading newspaper having a general circulation in New York
(which is expected to be The Wall Street Journal) and in Amsterdam (which is
expected to be Het Financieele Dagblad and in the Official Price List of the AEX
for so long as the Notes are listed on the AEX and the rules of the AEX so
require) or in the case of Definitive Notes, mailed to Holders by first-class
mail at their respective addresses as they appear on the registration books of
the Registrar. Notes in denominations of Euro 1,000 may be redeemed only in
whole. The Trustee may select for redemption portions (equal to Euro 1,000 or
any integral multiple thereof) of the principal of Notes that have denominations
larger than Euro 1,000.
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<PAGE>
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
Additional Amounts, if any, or Liquidated Damages, if any, and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
11. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to Euro 1,000 aggregate principal amount and integral multiples
thereof) of the Notes on the Change of Control Payment Date at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest, thereon to the date of repurchase plus Additional Amounts, if
any, and Liquidated Damages, if any, to the date of repurchase (and in the case
of Definitive Notes, subject to the right of Holders of record on the relevant
record date to receive interest and Liquidated Damages, if any, due on the
relevant interest payment date and Additional Amounts, if any, in respect
thereof). Holders of Notes that are subject to an offer to purchase will receive
a Change of Control Offer from the Company prior to any related Change of
Control Payment Date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" appearing below.
12. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds Euro 10.0 million, the
Company will be obligated, within 30 Business Days thereafter, to make an offer
to purchase the maximum principal amount of Notes, that is an integral multiple
of Euro 1,000, that may be purchased out of the Proportionate Share of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
plus Additional Amounts, if any, and Liquidated Damages, if any, to the date
fixed for the closing of such offer (and, in the case of Definitive Notes,
subject to the right of a Holder of record on the relevant record date to
receive interest and Liquidated Damages, if any, due on the relevant interest
payment date and Additional Amounts, if any, in respect thereof). If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; provided, however,
that no Notes of Euro 1,000 or less shall be purchased in part. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. Denominations; Form. The Global Notes are in registered
global form, without coupons, in denominations of Euro 1,000 and integral
multiples of Euro 1,000.
14. Persons Deemed Owners. The registered Holder of this Note
shall be treated as the owner of it for all purposes, subject to the terms of
the Indenture.
15. Unclaimed Funds. If funds for the payment of principal,
interest, Additional Amounts or Liquidated Damages remain unclaimed for two
years, the Trustee and the Paying Agents will repay the funds to the Company at
its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
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<PAGE>
16. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
17. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
18. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, Incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
19. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
20. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
22. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases
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<PAGE>
all such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. Authentication. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
24. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Notes immediately prior to the
qualification of the Indenture under the TIA as a convenience to the Holders of
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
26. Governing Law The Indenture and the Notes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
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<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
Euro . The following decreases/increases in the principal amount
at maturity of this Note have been made:
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
-------- -------- -------- --------------- -------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
----------- ----------- ----------- ----------- ----------
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount: Euro
Date:_____________ Your Signature:________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
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<PAGE>
EXHIBIT B
TO THE INDENTURE
[FORM OF FACE OF INITIAL DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE 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. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(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 OF 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, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS 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 "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS
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<PAGE>
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT
THE COMPANY AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE, 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 MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
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<PAGE>
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
CUSIP NO.: [ ]
[If Regulation S Security - CINS Number _________]
No.____ Euro____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any Successor Company), for value received promises to pay
______________, or registered assigns, upon surrender hereof the principal sum
of __________________ euro, on March 30, 2010.
Interest Payment Dates: March 30 and September 30, commencing
September 30, 2000
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
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VERSATEL TELECOM INTERNATIONAL N.V.,
by
-----------------------------------
Name:
Title:
by
-----------------------------------
Name:
Title:
This is one of the Notes
referred to in the within-mentioned
Indenture:
THE BANK OF NEW YORK, as Trustee,
by
-------------------------
Name:
Title:
Dated:
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[FORM OF REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 11 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 30 and September 30, or if any such day is not a Business Day on the
next succeeding Business Day, commencing September 30, 2000 to the Holder
hereof. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 30, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Liquidated Damages. Pursuant to the Registration Rights
Agreement between the Company and the Placement Agents on behalf of Holders of
the Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 11 1/4% Senior Notes due
2010 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full.
3. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or
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premium, the Company will pay such additional amounts (the "Additional Amounts")
as may be necessary in order that the net amounts received in respect of such
payments by the Holders of the Notes or the Trustee, as the case may be, after
such withholding or deduction, equal the respective amounts which would have
been received in respect of such payments in the absence of such withholding or
deduction; except that no such Additional Amounts will be payable with respect
to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect
thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
4. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date for such interest. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company shall pay principal and interest in
euros; provided, however, that with respect to any payment of principal,
interest, Additional Amounts, if any, and Liquidated Damages, if any, in excess
of Euro 100,000 to any payee or group of related payees, such payment will
be made, at the option of the Holder hereof, by wire transfer of same day funds
to the Paying Agent, who in turn will wire such funds to the Holder hereof or to
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such individuals as the Holder hereof may in writing to the Paying Agent
direct; provided that the Paying Agent has received written wire transfer
instructions at least fifteen days prior to the date of any such payment.
5. Paying Agent and Registrar. Initially, The Bank of New York
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture,
dated as of March 30, 2000 (the "Indenture"), between the Company and The Bank
of New York (the "Trustee"). This Note is one of a duly authorized issue of
Initial Notes of the Company designated as its 11 1/4% Senior Notes due 2010
(the "Initial Notes"). The Notes include the Initial Notes and the Exchange
Notes issued in exchange for the Initial Notes pursuant to the Indenture. The
terms of the Notes 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
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture
until such time as the Indenture is qualified under the TIA, and thereafter as
in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are not secured by any of the assets of the
Company. The Notes are limited in aggregate principal amount to Euro 400,000,000
subject to the terms of the Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
7. Ranking. The Notes will be general unsecured obligations of
the Company and will rank senior in right of payment to all future indebtedness
of the Company that is, by its terms or by the terms of the agreement or
instrument governing such indebtedness, expressly subordinated in right of
payment to the Notes and pari passu in right of payment with all existing and
future senior indebtedness of the Company.
8. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 30, 2005 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad and in the Official Price List of the AEX for so long as the Notes are
listed on the AEX and the rules of the AEX so require) and mailed by first-class
mail to each Holder's registered address), at the redemption prices (expressed
as a percentage of principal amount) set forth below, plus accrued and unpaid
interest, Additional Amounts, if any, and Liquidated Damages,
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if any, to the applicable Redemption Date (and, subject to the right of Holders
of record on the relevant record date to receive interest and Additional
Amounts, if any, and Liquidated Damages, if any, due on the relevant interest
payment date in respect thereof),
if redeemed during the twelve-month period beginning on March 30 of each of the
years indicated below:
Redemption
Year Price
---- -----
2003............................................................... 105.625%
2004............................................................... 103.750%
2005............................................................... 101.875%
2006 and thereafter................................................ 100.000%
In addition, at any time on or prior to March 30, 2003, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 111 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, subject to the right of
Holders of record on the relevant record date to receive interest and Liquidated
Damages, if any, due to the relevant interest payment date and Additional
Amounts, if any, in respect thereof, with the Net Cash Proceeds (as defined in
the Indenture) of one or more Equity Offerings (as defined in the Indenture)
received by, or invested in, the Company; provided that, in each case, at least
65% of the aggregate original principal amount of the Notes remains outstanding
immediately after the occurrence of such redemption; and provided, further, that
notice of any such redemption must be given within 60 days of the date of the
closing of any such Equity Offering.
9. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date fixed by the Company for redemption (a "Tax Redemption Date"), and all
Additional Amounts, if any, then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise, if the Company
determines that, as a result of (i) any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of The
Netherlands (or any political subdivision or taxing authority of The
Netherlands) or any other Relevant Taxing Jurisdiction affecting taxation which
becomes effective on or after the Issue Date, or (ii) any change in position
regarding the application, administration or any new or different interpretation
of such laws, treaties, regulations or rulings (including a holding, judgment or
order by a court of competent jurisdiction), which change, amendment,
application or interpretation becomes effective on or after the Issue Date, the
Company is, or on the next Interest Payment Date would be, required to pay
Additional Amounts, and the Company determines that such payment obligation
cannot be avoided by the Company taking reasonable measures. Notwithstanding the
foregoing, no such notice of redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obligated to make such
payment or withholding if a payment in respect of the Notes were then due. Prior
to the publication or, where relevant, mailing of any notice of redemption of
the Notes pursuant to the foregoing, the Company will deliver to the Trustee an
opinion of an independent tax counsel of recognized standing to
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the effect that the circumstances referred to above exist. The Trustee shall
accept such opinion as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Holders.
10. Notice of Redemption. Notice of redemption will be given
at least 30 days but not more than 60 days before the Redemption Date by
publishing in a leading newspaper having a general circulation in New York
(which is expected to be The Wall Street Journal) and in Amsterdam (which is
expected to be Het Financieele Dagblad and in the Official Price List of the AEX
for so long as the Notes are listed on the AEX and the rules of the AEX so
require) and mailed to Holders by first-class mail at their respective addresses
as they appear on the registration books of the Registrar). Notes in
denominations of Euro 1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to Euro 1,000 or any integral multiple
thereof) of the principal of Notes that have denominations larger than Euro
1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
Additional Amounts, if any, or Liquidated Damages, if any, and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
11. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to Euro 1,000 aggregate principal amount and integral multiples
thereof) of the Notes on the Change of Control Payment Date at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest, thereon to the date of repurchase, plus, Additional Amounts, if
any, and Liquidated Damages, if any, to the date of repurchase (and, subject to
the right of Holders of record on the relevant record date to receive interest
and Liquidated Damages, if any, due on the relevant interest payment date and
Additional Amounts, if any, in respect thereof). Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
12. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds Euro 10.0 million, the
Company will be obligated, within 30 Business Days thereafter, to make an offer
to purchase the maximum principal amount of Notes, that is an integral multiple
of Euro 1,000, that may be purchased out of the Proportionate Share of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
plus, Additional Amounts, if any, and Liquidated Damages, if any, to the date
fixed for the closing of such offer (and, subject to the right of a Holder of
record on the relevant record date to receive interest and Liquidated Damages,
if any, due on the relevant interest payment date and Additional Amounts, if
any, in respect thereof). If the
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aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; provided, however,
that no Notes of Euro 1,000 or less shall be purchased in part. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. Denominations; Form. The Definitive Notes are in bearer
form, without coupons, in denominations of Euro 1,000 and integral multiples of
Euro 1,000.
14. Persons Deemed Owners. The Holder of this Note shall be
treated as the owner of it for all purposes, subject to the terms of the
Indenture.
15. Unclaimed Funds. If funds for the payment of principal,
interest, Additional Amounts or Liquidated Damages remain unclaimed for two
years, the Trustee and the Paying Agents will repay the funds to the Company at
its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
17. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
18. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, Incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
19. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
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20. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
22. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. Authentication. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
24. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Notes immediately prior to the
qualification of the Indenture under the TIA as a convenience to the Holders of
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
26. Governing Law The Indenture and the Notes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
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-----------------------------------------------------------
ASSIGNMENT FORM
To assign this Note fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------
Date: _____________ Your Signature: ______________________
--------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount:
Date:_____________ Your Signature:________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
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EXHIBIT C
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE GLOBAL NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
CUSIP No:
No.____ Euro ____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any Successor Company), for value received promises to pay to Cede &
Co. or registered assigns upon surrender hereof the principal sum indicated on
Schedule A hereof, on March 30, 2010.
Interest Payment Dates: March 30 and September 30, commencing
September 30, 2000
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
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IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
VERSATEL TELECOM INTERNATIONAL N.V.,
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
This is one of the Notes
referred to in the within-mentioned
Indenture:
THE BANK OF NEW YORK,
as Trustee,
By:
--------------------------
Name:
Title:
Dated:
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[Form of REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 11 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 30 and September 30, or if any such day is not a Business Day on the
next succeeding Business Day, commencing September 30, 2000 to the Holder
hereof. Notwithstanding any exchange of this Note for a Definitive Note during
the period starting on a Record Date relating to such Definitive Note and ending
on the immediately succeeding Interest Payment Date, the interest due on such
Interest Payment Date shall be payable to the Person in whose name this Global
Note is registered at the close of business on the Record Date for such
interest. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 30, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would have been received in respect of such payments in the absence of
such withholding or deduction; except that no such Additional Amounts will be
payable with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing
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Jurisdiction (including being a citizen or resident or national of, or
carrying on a business or maintaining a permanent establishment in, or
being physically present in, the Relevant Taxing Jurisdiction) other
than by the mere holding of such Note or enforcement of rights
thereunder or the receipt of payments in respect thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
3. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Person in whose name this Note is
registered at the close of business on the Record Date for such interest.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in euros. Immediately available
funds for the payment of the principal of (and premium, if any), interest and
Additional Amounts, if any, on this Note due on any Interest Payment Date,
Maturity Date, Redemption Date or other repurchase date will be made available
to the Paying Agent to permit the Paying Agent to pay such funds to the Holders
on such respective dates.
4. Paying Agent and Registrar. Initially, The Bank of New York
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture,
dated as of March 30, 2000 (the "Indenture"), between the Company and The Bank
of New York (the "Trustee"). This Note is one of a duly authorized issue of
Exchange Notes of the Company designated as its 11 1/4% Senior Notes due 2010
(the "Exchange Notes"). The
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terms of the Notes 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
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture
until such time as the Indenture is qualified under the TIA, and thereafter as
in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are not secured by any of the assets of the
Company. The Notes are limited in aggregate principal amount to Euro 400,000,000
subject to the terms of the Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
6. Ranking. The Notes will be general unsecured obligations of
the Company and will rank senior in right of payment to all future indebtedness
of the Company that is, by its terms or by the terms of the agreement or
instrument governing such indebtedness, expressly subordinated in right of
payment to the Notes and pari passu in right of payment with all existing and
future senior indebtedness of the Company.
7. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 30, 2005 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad and in the Official Price List of the AEX for so long as the Notes are
listed on the AEX and the rules of the AEX so require) or, in the case of
Definitive Notes, mailed by first-class mail to each Holder's registered
address, at the redemption prices (expressed as a percentage of principal
amount) set forth below, plus accrued and unpaid interest, Additional Amounts,
if any, and Liquidated Damages, if any, to the applicable Redemption Date (and
in the case of Definitive Notes, subject to the right of Holders of record on
the relevant record date to receive interest and Additional Amounts, if any, due
on the relevant interest payment date in respect thereof), if redeemed during
the twelve-month period beginning on March 30 of each of the years indicated
below:
Redemption
Year Price
---- -----
2003............................................................ 105.625%
2004............................................................ 103.750%
2005............................................................ 101.875%
2006 and thereafter............................................. 100.000%
In addition, at any time on or prior to March 30, 2003, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 111 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the
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date of redemption, with the Net Cash Proceeds (as defined in the Indenture) of
one or more Equity Offerings (as defined in the Indenture) received by, or
invested in, the Company; provided that, in each case, at least 65% of the
aggregate original principal amount of the Notes remains outstanding immediately
after the occurrence of such redemption; and provided, further, that notice of
any such redemption must be given within 60 days of the date of the closing of
any such Equity Offering.
8. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof to the date fixed by the Company for redemption (a "Tax Redemption
Date") plus accrued and unpaid interest and all Additional Amounts, if any, then
due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise, if the Company determines that, as a result of (i) any
change in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of The Netherlands (or any political subdivision or
taxing authority of The Netherlands) or any other Relevant Taxing Jurisdiction
affecting taxation which becomes effective on or after the Issue Date, or (ii)
any change in position regarding the application, administration or any new or
different interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction),
which change, amendment, application or interpretation becomes effective on or
after the Issue Date, the Company is, or on the next Interest Payment Date would
be, required to pay Additional Amounts, and the Company determines that such
payment obligation cannot be avoided by the Company taking reasonable measures.
Notwithstanding the foregoing, no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Company would be
obligated to make such payment or withholding if a payment in respect of the
Notes were then due. Prior to the publication or, where relevant, mailing of any
notice of redemption of the Notes pursuant to the foregoing, the Company will
deliver to the Trustee an opinion of an independent tax counsel of recognized
standing to the effect that the circumstances referred to above exist. The
Trustee shall accept such opinion as sufficient evidence of the satisfaction of
the conditions precedent described above, in which event it shall be conclusive
and binding on the Holders.
9. Notice of Redemption. Notice of redemption will be given at
least 30 days but not more than 60 days before the Redemption Date by publishing
in a leading newspaper having a general circulation in New York (which is
expected to be The Wall Street Journal) and in Amsterdam (which is expected to
be Het Financieele Dagblad and in the Official Price List of the AEX for so long
as the Notes are listed on the AEX and the rules of the AEX so require) or in
the case of Definitive Notes, mailed to Holders by first-class mail at their
respective addresses as they appear on the registration books of the Registrar.
Notes in denominations of Euro 1,000 may be redeemed only in whole. The Trustee
may select for redemption portions (equal to Euro 1,000 or any integral multiple
thereof) of the principal of Notes that have denominations larger than Euro
1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited
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with the Paying Agent for redemption on such Redemption Date, then, unless the
Company defaults in the payment of such Redemption Price, the Notes called for
redemption will cease to bear interest, or Additional Amounts, if any, and the
only right of the Holders of such Notes will be to receive payment of the
Redemption Price.
10. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to Euro 1,000 aggregate principal amount and integral multiples
thereof) of the Notes on the Change of Control Payment Date at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest, thereon to the date of repurchase, plus, Additional Amounts, if
any, to the date of repurchase (and in the case of Definitive Notes, subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date and Additional Amounts, if any, in
respect thereof). Holders of Notes that are subject to an offer to purchase will
receive a Change of Control Offer from the Company prior to any related Change
of Control Payment Date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" appearing below.
11. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds Euro 10.0 million, the
Company will be obligated, within 30 Business Days thereafter, to make an offer
to purchase the maximum principal amount of Notes, that is an integral multiple
of Euro 1,000, that may be purchased out of the Proportionate Share of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
plus, Additional Amounts, if any, to the date fixed for the closing of such
offer (and, in the case of Definitive Notes, subject to the right of a Holder of
record on the relevant record date to receive interest due on the relevant
interest payment date and Additional Amounts, if any, and Liquidated Damages, if
any, in respect thereof). If the aggregate principal amount of Notes surrendered
by Holders thereof exceeds the amount of Excess Proceeds, subject to applicable
law, the Trustee shall select the Notes to be redeemed in accordance with the
Indenture; provided, however, that no Notes of Euro 1,000 or less shall be
purchased in part. Holders of Notes that are the subject of an offer to purchase
will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled
"Option of Holders to Elect Purchase" appearing below.
12. Denominations; Form. The Global Notes are in registered
global form, without coupons, in denominations of Euro 1,000 and integral
multiples of Euro 1,000.
13. Persons Deemed Owners. The registered Holder of this Note
shall be treated as the owner of it for all purposes, subject to the terms of
the Indenture.
14. Unclaimed Funds. If funds for the payment of principal,
interest or Additional Amounts remain unclaimed for two years, the Trustee and
the Paying Agents will repay the funds to the Company at its written request.
After that, all liability of the Trustee and such Paying Agents with respect to
such funds shall cease.
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<PAGE>
15. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of Notes then outstanding (including consents obtained in
connection with a tender offer or exchange offer for the Notes), and any
existing Default or Event of Default or compliance with any provision of the
Indenture or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes).
17. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, Incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
18. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest and Additional Amounts, if
any, and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
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<PAGE>
21. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. Authentication. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
23. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
24. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Notes immediately prior to the
qualification of the Indenture under the TIA as a convenience to the Holders of
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
25. Governing Law The Indenture and the Notes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
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<PAGE>
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
Euro . The following decreases/increases in the principal
amount at maturity of this Note have been made:
Total Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
-------- -------- -------- --------------- -------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount: Euro
Date:_____________ Your Signature:___________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
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<PAGE>
EXHIBIT D
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
CUSIP No.
No.
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
No.____ Euro____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any Successor Company), for value received promises to pay to
____________, or registered assigns, upon surrender hereof the principal sum of
___________ euro, on March 30, 2010.
Interest Payment Dates: March 30 and September 30, commencing
September 30, 2000
Record Dates: March 15 and September 15
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
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<PAGE>
VERSATEL TELECOM INTERNATIONAL N.V.,
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
This is one of the Notes
referred to in the within-mentioned
Indenture:
THE BANK OF NEW YORK,
as Trustee,
By:
--------------------------
Name:
Title:
Dated:
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<PAGE>
[Form of REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
11 1/4% Senior Note
due 2010
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 11 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each March 30 and September 30, or if any such day is not a Business Day on the
next succeeding Business Day, commencing September 30, 2000 to the Holder
hereof. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from March 30, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would have been received in respect of such payments in the absence of
such withholding or deduction; except that no such Additional Amounts will be
payable with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding
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of such Note or enforcement of rights thereunder or the receipt of
payments in respect thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
3. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date for such interest. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in euros. Immediately available funds for the
payment of the principal of (and premium, if any), interest and Additional
Amounts, if any, and Liquidated Damages, if any, in excess of Euro 100,000 to
any payee or group of related payees, such payment will be made, at the option
of the Holder hereof, by wire transfer of same day funds to the Paying Agent,
who in turn will wire such funds to the Holder hereof or to such individuals as
the Holder hereof may in writing to the Paying Agent direct; provided that the
Paying Agent has received written wire transfer instructions at least fifteen
days prior to the date of any such payment.
4. Paying Agent and Registrar. Initially, The Bank of New York
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture,
dated as of March 30, 2000 (the "Indenture"), between the Company and The Bank
of New York (the "Trustee"). This Note is one of a duly authorized issue of
Exchange Notes of the Company designated as its 11 1/4% Senior Notes due 2010
(the "Exchange Notes"). The
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terms of the Notes 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
Sections 77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture
until such time as the Indenture is qualified under the TIA, and thereafter as
in effect on the date on which the Indenture is qualified under the TIA.
Notwithstanding anything to the contrary herein, the Notes are subject to all
such terms, and Holders of Notes are referred to the Indenture and the TIA for a
statement of them. The Notes are not secured by any of the assets of the
Company. The Notes are limited in aggregate principal amount to Euro 400,000,000
subject to the terms of the Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
6. Ranking. The Notes will be general unsecured obligations of
the Company and will rank senior in right of payment to all future indebtedness
of the Company that is, by its terms or by the terms of the agreement or
instrument governing such indebtedness, expressly subordinated in right of
payment to the Notes and pari passu in right of payment with all existing and
future senior indebtedness of the Company.
7. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after March 30, 2005 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad and in the Official Price List of the AEX for so long as the Notes are
listed on the AEX and the rules of the AEX so require) and mailed by first-class
mail to each Holder's registered address), at the redemption prices (expressed
as a percentage of principal amount) set forth below, plus accrued and unpaid
interest, Additional Amounts, if any, to the applicable Redemption Date (and in
the case of Definitive Notes, subject to the right of Holders of record on the
relevant record date to receive interest and Additional Amounts, if any, and
Liquidated Damages, if any, due on the relevant interest payment date in respect
thereof), if redeemed during the twelve-month period beginning on March 30 of
each of the years indicated below:
Redemption
Year Price
---- -----
2005.............................................................. 105.625%
2006.............................................................. 103.750%
2007.............................................................. 101.875%
2008 and thereafter............................................... 100.000%
In addition, at any time on or prior to March 30, 2003, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 111 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, subject to the right of
Holders of record on the relevant record date to
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receive interest and Liquidated Damages, if any, due to the relevant interest
payment date and Additional Amounts, if any, in respect thereof, with the Net
Cash Proceeds (as defined in the Indenture) of one or more Equity Offerings (as
defined in the Indenture) received by, or invested in, the Company; provided
that, in each case, at least 65% of the aggregate original principal amount of
the Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that notice of any such redemption must be
given within 60 days of the date of the closing of any such Equity Offering.
8. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof to the date fixed by the Company for redemption (a "Tax Redemption
Date"), plus accrued and unpaid interest and all Additional Amounts, if any,
then due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise, if the Company determines that, as a result of (i) any
change in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of The Netherlands (or any political subdivision or
taxing authority of The Netherlands) or any other Relevant Taxing Jurisdiction
affecting taxation which becomes effective on or after the Issue Date, or (ii)
any change in position regarding the application, administration or any new or
different interpretation of such laws, treaties, regulations or rulings
(including a holding, judgment or order by a court of competent jurisdiction),
which change, amendment, application or interpretation becomes effective on or
after the Issue Date, the Company is, or on the next Interest Payment Date would
be, required to pay Additional Amounts, and the Company determines that such
payment obligation cannot be avoided by the Company taking reasonable measures.
Notwithstanding the foregoing, no such notice of redemption shall be given
earlier than 90 days prior to the earliest date on which the Company would be
obligated to make such payment or withholding if a payment in respect of the
Notes were then due. Prior to the publication or, where relevant, mailing of any
notice of redemption of the Notes pursuant to the foregoing, the Company will
deliver to the Trustee an opinion of an independent tax counsel of recognized
standing to the effect that the circumstances referred to above exist. The
Trustee shall accept such opinion as sufficient evidence of the satisfaction of
the conditions precedent described above, in which event it shall be conclusive
and binding on the Holders.
9. Notice of Redemption. Notice of redemption will be given at
least 30 days but not more than 60 days before the Redemption Date by publishing
in a leading newspaper having a general circulation in New York (which is
expected to be The Wall Street Journal) and in Amsterdam (which is expected to
be Het Financieele Dagblad and in the Official Price List of the AEX for so long
as the Notes are listed on the AEX and the rules of the AEX so require) and,
mailed to Holders by first-class mail at their respective addresses as they
appear on the registration books of the Registrar). Notes in denominations of
Euro 1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to Euro 1,000 or any integral multiple thereof) of the principal
of Notes that have denominations larger than Euro 1,000.
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Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
or Additional Amounts, and the only right of the Holders of such Notes will be
to receive payment of the Redemption Price.
10. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to Euro 1,000 aggregate principal amount and integral multiples
thereof) of the Notes on the Change of Control Payment Date at a purchase price
in cash equal to 101% of the aggregate principal amount thereof plus accrued and
unpaid interest, thereon to the date of repurchase, plus, Additional Amounts, if
any, and Liquidated Damages, if any, to the date of repurchase (and, subject to
the right of Holders of record on the relevant record date to receive interest
due on the relevant interest payment date and Additional Amounts, if any, and
Liquidated Damages, if any, in respect thereof). Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
11. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds Euro 10.0 million, the
Company will be obligated, within 30 Business Days thereafter, to make an offer
to purchase the maximum principal amount of Notes, that is an integral multiple
of Euro 1,000, that may be purchased out of the Proportionate Share of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
plus Additional Amounts, if any, and Liquidated Damages, if any, to the date
fixed for the closing of such offer (and, subject to the right of a Holder of
record on the relevant record date to receive interest due on the relevant
interest payment date and Additional Amounts, if any, in respect thereof). If
the aggregate principal amount of Notes surrendered by Holders thereof exceeds
the amount of Excess Proceeds, subject to applicable law, the Trustee shall
select the Notes to be redeemed in accordance with the Indenture; provided,
however, that no Notes of Euro 1,000 or less shall be purchased in part. Holders
of Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
12. Denominations; Form. The Definitive Notes are in bearer
form, without coupons, in denominations of Euro 1,000 and integral multiples of
Euro 1,000.
13. Persons Deemed Owners. The Holder of this Note shall be
treated as the owner of it for all purposes, subject to the terms of the
Indenture.
14. Unclaimed Funds. If funds for the payment of principal,
interest or Additional Amounts remain unclaimed for two years, the Trustee and
the Paying Agents
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will repay the funds to the Company at its written request. After that, all
liability of the Trustee and such Paying Agents with respect to such funds shall
cease.
15. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
and the Notes ("Covenant Defeasance"), in each case upon satisfaction of certain
conditions specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, Incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important qualifications and exceptions. The Company must
annually report to the Trustee on compliance with such limitations.
18. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest and Additional Amounts, if
any, and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may
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otherwise deal with the Company, its Subsidiaries or their respective Affiliates
as if it were not the Trustee.
21. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. Authentication. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
23. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
24. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Notes immediately prior to the
qualification of the Indenture under the TIA as a convenience to the Holders of
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
25. Governing Law The Indenture and the Notes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
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*
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on
the books of the Company. The agent may substitute another to act for him.
-----------------------------------------------------------
Date: _____________ Your Signature: ______________________
-----------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
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<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount: Euro
Date:_____________ Your Signature:___________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
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EXHIBIT E
TO THE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM RULE 144A
GLOBAL NOTE TO REGULATION S GLOBAL NOTE
(Transfers pursuant to Section 2.7(b)
of the Indenture)
VersaTel Telecom International N.V.
c/o The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
RE: 11 1/4% Senior Notes due 2010 (the "Notes"),
of VersaTel Telecom International N.V.
Reference is hereby made to the Indenture dated as of March 30,
2000 (the "Indenture") between VersaTel Telecom International N.V. and The Bank
of New York, as Trustee, Registrar and Paying Agent. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to Euro _________ (being any integral
multiple of Euro 1,000) principal amount of Notes beneficially held through
interests in the Rule 144A Global Note (CUSIP No. _________) with ______________
in the name of ________(the "Transferor") account no. . The Transferor hereby
requests that on [INSERT DATE] such beneficial interest in the Rule 144A Global
Note be transferred or exchanged for an interest in the Regulation S Global Note
(CUSIP (CINS) No. _________) in the same principal denomination and transfer to
(account no. ________). If this is a partial transfer, a minimum amount of Euro
1,000 and any integral multiple of Euro 1,000 in excess thereof of the Rule 144A
Global Note will remain outstanding.
In connection with such request and in respect of such Notes
the Trans feror does hereby certify that such transfer has been effected in
accordance with the trans fer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and accordingly the Transferor further certifies that:
(A) (1) the offer of the Notes was not made to a person in the
United States;
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(2) either (a) at the time the buy order was
originated, the transferee was outside the United States or we
and any person acting on our behalf reasonably believed that
the transferee was outside the United States, or (b) the
transaction was executed in, on or through the facilities of a
designated offshore securities market and neither the
Transferor nor any person acting on our behalf knows that the
transaction was prear ranged with a buyer in the United
States,
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
OR
(B) Such transfer is being made in accordance with Rule 144
under the Securities Act.
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<PAGE>
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company. Terms used in this certificate
and not otherwise defined in the Indenture have the meanings set forth in
Regulation S under the Securities Act.
Dated: _____________, ____
[Name of Transferor]
By:________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
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<PAGE>
EXHIBIT F
TO THE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S GLOBAL
NOTE TO RULE 144A GLOBAL NOTE
(Transfers pursuant to Section 2.7(c)
of the Indenture)
VersaTel Telecom International N.V.
c/o The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Administration
Re: 11 1/4% Senior Notes due 2010 (the "Notes"), of VersaTel Telecom
International N.V.
Reference is hereby made to the Indenture dated as of March
30, 2000 (the "Indenture") between VersaTel Telecom International N.V. and
United States Trust Company of New York, as Trustee, Registrar and Paying Agent.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to Euro __________ (being any integral
multiple of Euro 1,000) princi pal amount of Notes beneficially held through
interests in the Regulation S Global Note (CUSIP (CINS) No. _________) with
[Euroclear] [Clearstream] (Common Code No. _______) through __________________
in the name of _______________ (the "Transferor") [Euroclear] [Clearstream]
account no. . The Transferor hereby requests that on [INSERT DATE] such
beneficial interest in the Regulation S Global Note be transferred or exchanged
for an interest in the Rule 144A Global Note (CUSIP No. _________) in the same
principal denomination and transfer to ______________ ([DTC account no.]
[Euroclear account no.] [Clearstream account no.] ________). If this is a
partial transfer, a minimum of Euro 1,000 and any integral multiple of Euro
1,000 in excess thereof of the Regulation S Global Note will remain outstanding.
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), to a transferee that the Transfer or reasonably
believes is purchasing the Notes for its own account or an account with respect
to which the transferee exercises sole investment discretion and the transferee
and any such account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
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This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
Dated:_______________, ____
[Name of Transferor]
By:___________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
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